2013 Colorado Appellate Courts Interpret Mandatory Sentencing Crime of Violence - Sex Crime Sentencing Laws In Most Punishing Way

February 14, 2013  

Colorado Sex Crimes Criminal Defense Lawyer - H. Michael Steinberg

In a recent decision providing an opportunity for the Colorado Court of Appeals to mitigate the impact of the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - the Colorado Appellate courts did the opposite.

The Court was faced with a statutory conflict between the Colorado Violent Crime Sentencing Statute and the Colorado Sex Offender Sentencing and Lifetime Supervision Act in sentencing individuals to Lifetime Indeterminate sentences.

The Colorado Violent Crime Sentencing Provision Within The Sex Offender Sentencing and Lifetime Supervisionct

Section 18-3-405(2)(d) provides that sex assault on a child is a class three felony if the offense is committed as part of a pattern of sexual abuse. Another law - Section 18-3-405(3) provides that if a defendant is convicted of such an offense, "the court shall sentence the defendant in accordance with the provisions of section 18-1.3- 406." This law - Section 18-1.3-406 - is entitled "Mandatory sentences for violent crimes" and section (1)(a) provides that a person convicted of a crime of violence shall be sentenced for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range for the offense.

BUT The Colorado Sex Offender Sentencing Provision contains this statute...

Subsection (1)(b) provides:

Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense . . . that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401(1)(a)(V)(A) up to a maximum of the person's natural life, as provided in section 18-1.3-1004(1).

The Defendant unsuccessfully argued that the District Attorney - to sentence in the aggravated range - had to allege "aggravating circumstances" to receive a sentence in that range of years.

He argued that " a bottom end in excess of the presumptive maximum is not authorized by section 18-1.3-406(1)(b) without a finding of aggravating circumstances under section 18- 1.3-401(8), C.R.S. 2012."

The DA argued that subsection (1)(b) authorizes a bottom end under the same standard defined by subsection (1)(a) for non-sex offenses -- between the midpoint in, and twice the maximum of, the presumptive range.

Court Traces The Evolution of Sex Offender Sentencing and Lifetime Supervision
Looking at the Legislative History of the Law

The Court agreed with the DA's position:

" Before November 1998, a sex offense that was also a crime of violence was subject to the same sentencing range as any other crime of violence. At that time, crime of violence sentencing was addressed by former section 16-11-309. Subsection (1)(a) of the former statute was substantially similar to the current section 18- 1.3-406(1)(a). The statute did not differentiate between crimes of violence that involved sex offenses and those that did not.."

The Court further found that..

" the Act's sponsor "emphasized three separate times that the Act was not intended to change the sentencing guidelines already in place under Colorado law" and "would simply change a court's ability to monitor sex offenders by subjecting them to lifetime supervision in the form of probation and parole"

The Court then shut the door on the defendant and decided that the "bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is intended to be imposed in the same manner and within the same strictures as a determinate sentence prescribed for any crime of violence -- specifically, between the midpoint in, and twice the maximum of, the presumptive range for the applicable felony class."

Therefore A DA need NOT establish "aggravating circumstances" to obtain a sentence above the maximum of the presumptive range for a sex offense that is a crime of violence.

H. Michael's Take

Faced with a statutory ambiguity - given another opportunity to temper a Draconian law - the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - Given the chance for a measure of hope - another measure to possibly return discretion back to the place it belongs - - the elected judges of Colorado - the courts again are compelled to remove that possibility of compassion and mercy and once again a measure of hope is destroyed......