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Colorado Criminal Law – Can I Be “Punished” By A Heavier Sentence If I Appeal – 18-1-409?

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Criminal Law - Can I Be Punished By A Heavier Sentence If I Appeal

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Colorado Criminal Law – Can I Be Punished By A Heavier Sentence If I Appeal?

Colorado Criminal Law – Can I Be “Punished” By A Heavier Sentence If I Appeal – 18-1-409? A chief fear of an individual convicted of a crime in Colorado is receiving a more serious sentence if they appeal and win a reversal of that sentence.. returning back to the court for resentencing.  This article addresses that fear.

Appealing A Sentence In A Colorado Criminal Case

Typically there are two ways this issue arises. By this issue I mean  – the fear that a Judge will INCREASE a sentence if you appeal that sentence to the Colorado Court of Appeals or Colorado Supreme Court… and you win.

The first way this typically arises  is if you accept a plea agreement and the Judge sentences you as a matter of his or her discretion and you appeal that sentence. The other way this usually arises is where a case goes to trial and the Judge – again – sentences you in a manner that you believe is illegal or beyond that Judge’s authority.

On appeal – you are successful and the case is then remanded (sent back down to the trial court) for “re-sentencing.”

Colorado’s Section CRS 18-1-409 And The “Presumption Of Vindictiveness”

Under Colorado law – the re-sentencing of an individual who has successfully appealed a sentence in a Colorado criminal case – is governed by a statute: CRS 18-1-409.

Here is a reprint of the law as of 2015:

18-1-409. Appellate Review of Sentence for a Felony.

(1) When sentence is imposed upon any person following a conviction of any felony, other than a class 1 felony in which a death sentence is automatically reviewed pursuant to section 18-1.3-1201 (6), 18-1.3-1302 (6), or 18-1.4-102 (6), the person convicted shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based, except that, if the sentence is within the range agreed upon by the parties pursuant to a plea agreement, the defendant shall not have the right of appellate review of the propriety of the sentence. The procedures to be employed in the review shall be as provided by supreme court rule.

(2.1) and (2.2) Repealed.

(3) The reviewing court shall have power to affirm the sentence under review, substitute for the sentence under review any penalty that was open to the sentencing court other than granting probation or other conditional release, or remand the case for any further proceedings that could have been conducted prior to the imposition of the sentence under review, and for resentencing on the basis of such further proceedings. 

No sentence in excess of the one originally imposed shall be given unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court during the hearing conducted under this section. If the court imposes a sentence in excess of the one first given, it shall specifically identify the additional aggravating facts considered by it in imposing the increased sentence.

How This Law – CRS 18-1-409 – Works

Colorado’s re-sentencing law – Section 18-1-409 – applies when a Defendant successfully challenges the propriety of a sentence on a specific charge. Subsection (1) also applies to ALL criminal court sentencing – and Judge’s in Colorado always advise a criminal defendant of their statutory right to appeal their sentence under this law following the imposition of a sentence in a Colorado criminal case.

Subsection (3), on the other hand, applies to the situation discussed in this article. This section – like the statute itself – arises out of the right to “DUE PROCESS,” and allows the Colorado Appellate Courts, to “remand the case for any further proceedings that could have been conducted prior to the imposition of the sentence under review, and for re-sentencing . . . .”

If the Colorado Appellate Court (either the Colorado Court of Appeals or the Colorado Supreme Court), conducts a review of a sentence under section 18-1-409 and reverses that sentence, and then remands the case for re-sentencing, subsection (3) prevents the Judge in the lower court (“the sentencing court”) from imposing a new sentence in excess of the original sentence “unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court during the hearing conducted under this section.”

Any INCREASE in the new sentence – must track the provisions of subsection (3) or it will be struck down.

The law, 18-1-409 then, incorporates the protection of the Due Process Clauses of the Colorado State and United States Constitutions, and protects against violations of due process for increases in criminal sentences after a successful appeal.

Bottom line – a Trial Court Judge cannot punish a defendant for her successful appeal.

Colorado’s “Presumption Of Vindictiveness” In The Re-sentencing Of A Criminal Defendant

When a Trial Court, upon remand to correct an illegal sentence, imposes an increased sentence, Colorado criminal law recognizes a doctrine of law known as the “presumption of vindictiveness.” The phrase makes sense. When a Judge increases a sentence upon remand, there is a reasonable likelihood of actual vindictiveness in the sentencing decision… and if the re-sentence is “vindictive”   how is this situation remedied by the defendant?

To determine whether the presumption of vindictiveness applies in a given case, the Colorado Court’s of Appeal examine the context of the original case that has been remanded for res-sentencing. Where the subsequent “re-sentence” is more severe than the original sentence, the Court is then tasked with striking a balance between protecting a defendant’s right to appeal and preserving a trial court’s sentencing discretion.

The “Presumption of Vindictiveness” is then applied and is used to closely view the new sentence for signs of .. well.. vengeful acts that punish a defendant for exercising his or her challenge to the original sentence.

There Is Little Else Under Colorado Law More Fundamental Than The Right to Appeal

The Colorado Supreme Court said in 2010:

“Within the judicial system, the right to appeal a criminal conviction is a fundamental and indispensable mechanism to protect a defendant’s rights and correct reversible trial court error.”

That basic judicial right is also protected by the United States Supreme Court. That Court has has consistently held that:

“[a] defendant’s exercise of a right of appeal must be free and unfettered” and that courts may not “put a price on an appeal.”

Accordingly,

“[d]ue process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”

The Presumption of Vindictiveness is known as a “rebuttable presumption.” This presumption can be overcome with reasons stated as findings by the Court at the time of re-sentencing that support, as a matter of law, the Trial Court’s harsher re-sentencing decision.

The presumption is to deter “actual vindictiveness” and to “prevent a chilling effect on a defendant exercising their right of appeal out of a fear that the reversed trial court will have a retaliatory motive to impose a more severe sentence on remand.” But it is not a complete BAR to a new – and harsher sentence. If the lower Court can identify “objective information in the record justifying the increased sentence” – known as a successful rebuttal, the burden of proof shifts back to the defendant to prove that the sentencing judge violated his due process rights by imposing a harsher sentence out of actual vindictiveness.

Summary And Conclusion – A Trial Judge Still Has Significant Discretion In The Court’s Sentencing Decision

In the day to day trial trenches of Colorado criminal trial courts Judges posses broad discretion to determine the appropriate sentence with the statutory or “plea bargained” ranges presented to them. This “judicial” discretion, however, however may not be influenced by actual vindictiveness against a defendant. While the presumption of vindictiveness is a potent tool in some cases, it is a narrow one and ‘may operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct’ . . . .”

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Colorado Criminal Law – Can I Be “Punished” By A Heavier Sentence If I Appeal – 18-1-409?

Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT 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 – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus 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, to include 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 – Colorado Criminal Law – Can I Be “Punished” By A Heavier Sentence If I Appeal – 18-1-409?

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Colorado Criminal Law - Can I Be
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Colorado Criminal Law - Can I Be
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A chief fear of an individual convicted of a crime in Colorado is receiving a more serious sentence if they appeal and win a reversal of that sentence.. returning back to the court for resentencing. This article addresses that fear.
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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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