H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Sentencing: A Lawyer’s Duty Is To Properly Prepare For The Sentencing Hearing

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado-Sentencing-A-Lawyers-Duty-Is-To-Properly-Prepare-For-The-Sentencing-Hearing-300x169Introduction – The Sentencing Phase Of A Criminal Case Requires Thorough Preparation And Understanding The Judge’s Perspective

Understanding the significance of the sentencing hearing in the Colorado criminal justice system is essential to appreciating attorneys’ multiple and diverse roles in defending their clients. Sentencing hearings are a crucial stage in the legal process. They signal the change from – the heavily adversarial or “litigation stage” of a case – to the punishment stage.

In Colorado, sentencing Judges review and use the Purposes of Code With Respect to Sentencing” guidelines when imposing every sentence in every criminal case. A Colorado criminal defense lawyer must memorize the following six standards. The “purposes” of sentencing are carefully laid out in a statute, and understanding the role each plays in a given criminal case is critically important.

18-1-102.5. Purposes of Code With Respect To Sentencing

(1) The purposes of this code with respect to sentencing are:

(a) To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to seriousness of his offense;

(b) To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;

(c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses;

(d) To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders; and

(e) To select a sentence, a sentence length, and a level of supervision that addresses the offender’s individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence.

(f) To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices.

At EVERY sentencing, a criminal defense lawyer must incorporate these six standards into their arguments on behalf of the accused to the Court.

Sentencing hearings are at least as important as all of the other phases that precede sentencing. They are not mere formalities; they represent a turning point in the criminal justice system where an individual’s life is balanced against the requirements of a society that often seeks only to punish that offender.

This article examines a lawyer’s duty to prepare for sentencing meticulously and, hopefully, emphasizes the importance of taking a case-by-case view of that preparation.

When A Lawyer Falls Below The Standard Of Care At The Sentencing Hearing In A Given Case

A Defendant is denied the “effective assistance of counsel” by their attorneys’ failure to prepare for and zealously advocate for their client at the sentencing hearing. Here is the relevant law in this area:

Law: A Lawyer’s Duty To Properly Prepare For The Sentencing Hearing

The Sixth Amendment right to counsel includes the right to effective assistance at sentencing because it is a critical stage of the adversarial proceedings.

People v. Duke, 36 P.3d 149, 152 (Colo. App. 2001).

When a criminal defense lawyer is alleged by their client – a person charged in a criminal case – to be ineffective, the Defendant must establish the two-prong test for ineffective assistance of counsel as developed in Strickland v. Washington, 466 U.S. 668, 687 (1984).

Every Defendant is entitled to an attorney whose duty it is to zealously advocate on his behalf.

People v. Harlan, 54 P.3d 871, 879 (Colo. 2002);

“This duty encompasses the responsibility to acquire the requisite knowledge and skill in order to conduct a client’s defense, to adequately prepare the matter, including inquiry into the legal and factual aspects of the case, and to use methods and procedures that meet the standards of competent Colorado practitioners.”

People v. Cole, 293 P.3d 604, 613 (Colo. O.P.D.J. 2011).

To establish that deficiency, a Defendant asserting their lawyer was ineffective must prove that the representation “fell below an objective standard of reasonableness.”

Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).

Colorado Criminal Rule of Procedure: Rule 35

A conviction cannot be obtained or a sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state. Crim. P. 35(c)(2)(I). A conviction cannot be obtained in violation of his Sixth Amendment right to counsel.

The “Strickland Test” For Ineffective Assistance Of Counsel

The purpose of the Strickland test is to ensure “that at all critical stages of the adjudicative process a criminal defendant represented by counsel is in fact represented by an attorney of sufficient quality to ensure that the process itself is fundamentally fair.”

People v. Valdez, 789 P.2d 406, 410 (Colo. 1990).

To establish ineffective assistance of counsel under the Strickland test, a Defendant must show:

(1) the attorney’s performance was deficient,

and,

(2) he or she was prejudiced as a result of this deficient performance.

In the context of a sentencing hearing, a criminal defense lawyer can be found to have been ineffective when he or she was deficient for failing to prepare for and zealously advocate for their client at the sentencing hearing and their performance fell below the level of representation required by the prevailing norms of practice,

Overturning A Sentence Based On Ineffective Assistance Of Counsel Is A Difficult Task

Overturning a final judgment, which is entered at the sentencing hearing, is not an easy task. The rule:

A conviction that is obtained or a sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of Colorado must be reversed. Crim. P. 35(c)(2)(I).

On the other hand, a judgment of conviction is presumed valid, and it is the Defendant’s burden of proof to show, by a preponderance of the evidence, that a sentence was invalid.

People v. Pendleton, 374 P.3d 509, 512 (Colo. App. 2015).

Ineffective Assistance Of Counsel Is NOT Bad Advice Or Advice That Was Mistaken – A Lawyer’s Advice About Strategic Choices – “Virtually Unchallengeable”

All lawyers advise their clients on their options and specific tactical decisions. Although this advice may turn out to be wrong, that does not make itineffective.”

A lawyer’s strategic choices that are made

“after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”

People v. Ray, 378 P.3d 772, 775 (Colo. App. 2015)

A hindsight evaluation of a lawyer’s legal advice does not alone form a basis for a claim for ineffectiveness of counsel; therefore, in conducting the reasonableness inquiry for a claim of ineffective assistance of counsel at sentencing, a Court must make…. “every effort … to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

“Court(s) must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.”

With respect to pre-trial investigation, “[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Strickland, at 691.

The Key Factor: A Reasonable Probability For A Different Result

A defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Put differently, a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Only where both the performance prong and the prejudice prong have been proven will a defendant be entitled to post-conviction relief because of the ineffective assistance of counsel.

How does the Defendant know that their lawyer fell below a Strictland standard of care?

The American Bar Association Standards – Standard 4-8.3 Sentencing

The American Bar Association standards of practice guide to determine what is reasonably expected for an attorney preparing for sentencing.

Standard 4-8.3 Sentencing

(a) Early in the representation, and throughout the pendency of the case, defense counsel should consider potential issues that might affect sentencing. Defense counsel should become familiar with the client’s background, applicable sentencing laws and rules, and what options might be available as well as what consequences might arise if the client is convicted.

Defense counsel should be fully informed regarding available sentencing alternatives and with community and other resources which may be of assistance in formulating a plan for meeting the client’s needs. Defense counsel should also consider whether Standard 4-8.3 Sentencingconsultation with an expert specializing in sentencing options or other sentencing issues is appropriate.

(b) Defense counsel’s preparation before sentencing should include learning the court’s practices in exercising sentencing discretion; the collateral consequences of different sentences; and the normal pattern of sentences for the offense involved, including any guidelines applicable for either sentencing and, where applicable, parole.

The consequences (including reasonably foreseeable collateral consequences) of potential dispositions should be explained fully by defense counsel to the client.

(c) Defense counsel should present all arguments or evidence which will assist the court or its agents in reaching a sentencing disposition favorable to the accused. Defense counsel should ensure that the accused understands the nature of the presentence investigation process, and in particular the significance of statements made by the accused to probation officers and related personnel.

Defense counsel should cooperate with court presentence officers unless, after consideration and consultation, it appears not to be in the best interests of the client. Unless prohibited, defense counsel should attend the probation officer’s presentence interview with the accused and meet in person with the probation officer to discuss the case.

(d) Defense counsel should gather and submit to the presentence officers, prosecution, and court as much mitigating information relevant to sentencing as reasonably possible; and in an appropriate case, with the consent of the accused, counsel should suggest alternative programs of service or rehabilitation or other non-imprisonment options, based on defense counsel’s exploration of employment, educational, and other opportunities made available by community services.

(e) If a presentence report is made available to defense counsel, counsel should seek to verify the information contained in it, and should supplement or challenge it if necessary. Defense counsel should either provide the client with a copy or (if copying is not allowed) discuss counsel’s knowledge of its contents with the client.

In many cases, defense counsel should independently investigate the facts relevant to sentencing, rather than relying on the court’s presentence report, and should seek discovery or relevant information from governmental agencies or other third-parties if necessary.

(f) Defense counsel should alert the accused to the right of allocution. Counsel should consider with the client the potential benefits of the judge hearing a personal statement from the defendants as contrasted with the possible dangers of making a statement that could adversely impact the sentencing judge’s decision or the merits of an appeal.

(g) If a sentence of imprisonment is imposed, defense counsel should seek the court’s assistance, including an on-the-record statement by the court if possible, recommending the appropriate place of confinement and types of treatment, programming and counseling that should be provided for the defendant in confinement.

(h) Once the sentence has been announced, defense counsel should make any objections necessary for the record, seek clarification of any unclear terms, and advise the client of the meaning and effects of the judgment, including any known collateral consequences. Counsel should also note on the record the intention to appeal, if that decision has already been made with the client.

(i) If the client has received an imprisonment sentence and an appeal will be taken, defense counsel should determine whether bail pending appeal is appropriate and, if so, request it.

Guidance For A Criminal Defense Lawyer Preparing For Sentencing

While the ABA above standards provide a kind of practical guide, a starting point, or a reference tool, actually constructing a sentencing hearing requires a more common sense approach, which will vary with the severity of the crime or crimes involved, the complexity of the case, and the Defendant.

The ABA standards of practice are considered a starting point for what is reasonable. Still, the courts have clarified that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”

From the Strickland Case.

A Closer Look At The Sentencing Hearing

In the sometimes intricate complexities of the legal process, the sentencing hearing is a crucial juncture where a Defendant’s future hangs in the balance. At this pivotal moment, the role of a lawyer transcends mere representation and must evolve into something much more – not just an advocate but a careful strategist and confidant. This is more of an art form that combines legal acumen with an understanding of human-to-human empathy.

An experienced criminal defense lawyer begins by understanding the nuances of the law and its implications for this client’s case when preparing for the sentencing hearing.

Understanding the statutory sentencing guidelines, “18-1-102.5. Purposes of Code With Respect To Sentencing” and intertwining the “mitigating factors” in the individual case can drastically impact sentencing outcomes. Crafting a narrative that humanizes the client is of paramount importance. Compelling arguments about a client’s background, character, and potential for rehabilitation can sway the judicial perception of this person – this human being – this individual.

This means more than just navigating legal complexities; it means arguing passionately and persuasively for the clients’ futures while grounding their efforts in realism and compassion.

Sentence Mitigation “Humanizing” The Defendant

The purpose of a sentence presenting “mitigation” evidence in criminal cases where Defendants risk imprisonment or other punitive measures is to humanize the offender by emphasizing mitigating circumstances that call for mercy or alternative sentencing options.

Lawyers are tasked with helping their clients explore and express their underlying feelings, traumas, and life experiences. The lawyer’s role—the sentencing “narrative”—places the offense in the larger context of the client’s life so the sentencing Judge sees not only the victim of the crimes but also the Defendant and understands why this happened and, more importantly, why it will not happen again.

The art of storytelling is central to psychodrama’s effectiveness in sentence mitigation. By weaving together the threads of their clients’ lives, lawyers can construct narratives that resonate on a profoundly human level. These narratives transcend mere legal arguments, offering judges and decision-makers a glimpse into the complex realities defendants face.

Moreover, psychodrama enables lawyers to address the root causes of their client’s behavior, whether it be trauma, addiction, mental illness, or socioeconomic hardship. By advocating for holistic approaches to sentencing that prioritize rehabilitation and support, attorneys can empower their clients to break free from cycles of incarceration and reoffending.

Bridging Law and Humanity

In the intricate tapestry of legal practice, psychodrama emerges as a potent tool for bridging the gap between law and humanity. By embracing the complexities of human emotion and experience, lawyers can elevate their advocacy beyond the confines of statutes and precedents, advocating for justice tempered with compassion.

Gathering Comprehensive Background Information On The Client

A pivotal aspect of a lawyer’s duty in preparing for the sentencing hearing involves gathering comprehensive background information on the client. This process is far from superficial; it necessitates a deep dive into the client’s personal history, professional life, mental health status, and socio-economic factors that may have influenced their actions. By piecing together a detailed narrative of the client’s life, an attorney can present a holistic view to the court that goes beyond the confines of the case.

This endeavor requires meticulous attention to detail and empathy. Attorneys often discuss with family members, employers, and educators who have had significant interactions with the client. They may also consult mental health professionals if psychological evaluations are pertinent to understanding the client’s behavior or state of mind when committing the offense.

The objective is to humanize the client before the sentencing authority by highlighting mitigating circumstances such as a troubled upbringing, financial hardships, or efforts toward rehabilitation post-arrest. This comprehensive background portrait serves not only to advocate for potentially reduced sentencing but also emphasizes an attorney’s commitment to championing their client’s rights and dignity throughout legal proceedings.

Analyzing Pre-Sentence Reports And Their Impact On Sentencing

Analyzing Pre-Sentence Reports (PSRs) is a critical aspect of a lawyer’s duty to prepare for the sentencing hearing properly. These reports play a pivotal role in the sentencing process, as they provide judges with detailed background information about the defendant, including criminal history, personal circumstances, and any mitigating or aggravating factors. This information is instrumental in determining an appropriate sentence.

A lawyer’s meticulous examination of the PSR can identify areas that might be leveraged to argue for a more lenient sentence. For instance, pointing out rehabilitation efforts or highlighting an absence of prior criminal behavior can significantly impact the judge’s perception and, consequently, the sentencing outcome. Conversely, inaccuracies or unfavorable details in the report must be addressed promptly and effectively to mitigate their potential negative impact.

Furthermore, understanding how judges interpret PSRs in their jurisdiction is crucial. Lawyers must be adept at presenting arguments that resonate with judicial priorities and perspectives on rehabilitation versus punishment. This nuanced approach requires a deep understanding of legal precedents and an empathetic grasp of human stories behind the crimes.

Analyzing pre-sentence reports is not just about scrutinizing documents; it’s about strategically crafting a narrative that aligns with judicial values while advocating vigorously for clients’ interests during sentencing hearings.

Expert Witnesses And Sentencing Advocacy

Engaging with expert witnesses in the context of sentencing advocacy represents a pivotal aspect of a lawyer’s duty to prepare for the sentencing hearing meticulously. Strategically utilizing expert testimony can illuminate the defendant’s background, mental health status, and potential for rehabilitation in ways that resonate deeply with the court’s considerations on sentencing. For instance, a psychologist or psychiatrist may offer insights into mitigating factors related to the defendant’s mental health that could influence the severity of their sentence.

Similarly, experts in substance abuse and recovery can provide compelling evidence regarding an individual’s potential for successful rehabilitation if given appropriate support and treatment rather than a harsher sentence.

To effectively incorporate expert testimony into sentencing advocacy, lawyers must select experts whose credibility and expertise the court will respect and work closely with these professionals to ensure their findings are presented clearly and compellingly. This involves thoroughly briefing experts on the case’s specifics, guiding them through their legal relevance, and preparing them for potential cross-examination.

Ultimately, engaging expert witnesses is not merely about presenting additional evidence; it’s about humanizing defendants and providing courts with a fuller understanding of each case. Through thoughtful preparation and presentation of expert testimony, lawyers can advocate more persuasively for sentences that reflect justice in its truest sense—balanced, informed by expertise, and attuned to rehabilitation over retribution.

Sentencing Memorandums

Crafting persuasive sentencing memorandums is an art that requires a deep understanding of both the law and human psychology. A well-prepared memorandum not only presents the facts and legal arguments in favor of a client but also tells a compelling story that humanizes them in the eyes of the court. To achieve this, lawyers must strategically weave legal precedents, mitigating factors, and personal narratives.

One effective technique involves presenting a detailed account of the defendant’s background, highlighting any hardships or challenges they have faced that may have contributed to their criminal behavior. This approach aims to elicit empathy from the judge, making them more inclined towards leniency. Additionally, incorporating character testimonials from friends, family members, or employers can provide valuable third-party insights into the defendant’s character and potential for rehabilitation.

Lawyers should also focus on demonstrating remorse and acceptance of responsibility on behalf of their clients. This can be achieved through personal statements from defendants expressing regret for their actions and outlining their plans for making amends.

Furthermore, citing relevant legal precedents where similar circumstances led to reduced sentences can provide a strong foundation for arguing for leniency. Lawyers play a crucial role in influencing sentencing outcomes in favor of their clients by meticulously crafting sentencing memorandums that blend emotional appeal with solid legal argumentation.

Mitigating Factors And Arguments For Leniency

A critical component in preparing for a sentencing hearing involves the lawyer’s ability to communicate effectively, mainly when presenting mitigating factors and arguments for leniency. This aspect of preparation is not merely about recounting facts or reiterating legal principles; it requires a nuanced understanding of human emotion, judicial discretion, and the art of persuasion.

To persuasively present mitigating factors, a lawyer must first thoroughly understand their client’s background, including any personal hardships or circumstances that may have contributed to the commission of the offense. This understanding enables the attorney to weave these elements into a compelling narrative highlighting the human aspect of their client’s situation. This narrative must be grounded in sincerity and authenticity; it should aim to evoke empathy without resorting to manipulation.

Arguments for leniency similarly demand a strategic approach. Here, the lawyer must balance legal arguments with emotional appeal, carefully crafting statements that resonate with the logical and compassionate sides of judicial reasoning. This might involve demonstrating genuine remorse shown by the defendant, efforts towards rehabilitation, or other factors that suggest a lower sentence would be just and appropriate.

Effective communication in this context is about bridging gaps – between law and life stories, between facts and feelings. By doing so thoughtfully and respectfully, lawyers fulfill their duty not only toward their clients but also toward achieving a fairer administration of justice. [8]

Preparing The Client For The Sentencing Hearing

Preparing the client for the sentencing hearing involves a delicate balance between managing expectations and confronting the harsh realities of the legal process. A lawyer must ensure their client fully understands what is at stake, including the possible outcomes. This preparation is not merely about discussing legal strategy but also involves addressing the client’s emotional and psychological state.

Beyond legal maneuvering, lawyers must also prepare their clients for possible outcomes—both mentally and emotionally. This includes explaining complex legal jargon in understandable terms and setting realistic expectations about sentencing possibilities.

The attorney must communicate effectively, ensuring the client grasps the best-case and worst-case scenarios without instilling undue fear or false hope.

A lawyer must explain the sentencing process in detail, including mitigating factors that could influence a more favorable outcome and aggravating factors that might lead to harsher penalties. This explanation helps demystify the process for clients, reducing anxiety and allowing them to prepare for all possible outcomes mentally.

Moreover, guiding clients on presenting themselves during sentencing—emphasizing remorse, rehabilitation efforts, or community ties—can significantly impact the judge’s perception. However, tempering these strategies with realistic expectations about their potential influence on the final sentence is essential.

Preparing a client for a sentencing hearing is an exercise in transparency, empathy, and realism. It requires setting clear expectations while equipping clients to understand how they can actively participate in their defense during this critical phase.

Colorado Sentencing: A Lawyer’s Duty Is To Properly Prepare For The Sentencing Hearing

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted, but it cannot account for changes that occurred after it was uploaded.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, including Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.