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Can I Appeal My Sentence In Colorado? When And On What Grounds? – This article does NOT address asking a Colorado sentencing judge to reconsider his or her sentence under Colorado Rule 35 (b). The law, tactics and issues discussed here analyze an appeal of a judge’s sentence when you have plea bargained and the judge imposes an unfair and unjust sentence.
If you are shocked by the sentence imposed in your Colorado criminal case – an appeal of that sentence is something you may want to consider. Appealing a sentence usually occurs for two reasons.
The sentence was
(2) unduly harsh or excessive.
A sentence is legally invalid when the terms of the sentence are not authorized by statute. It is also illegal when the sentencing judge considers “inappropriate factors” in imposing the sentence such as a prior criminal case for which you were acquitted.
Other mistakes can include a sentence that is imposed consecutively (one after the other), instead of concurrently (at the same time) when the law requires a concurrent sentence. Another illegal sentence may fail under the law if it constitutes “cruel and unusual” punishment.
While Colorado sentencing judge’s have almost absolute discretion in imposing a sentence, a sentence is “excessive” if the sentence permitted by law, but is unfair as applied in your specific situation.
BOX A trial court has wide discretion in sentencing and, absent a finding of abuse of discretion, an appellate court will not substitute its judgment for that of the trial judge
While a judge can take into account, the circumstances of your crime, the probability of your rehabilitation, your background, and your criminal record, if any and impose a fair sentence – you cannot be made “to pay” for the crimes of others. A Colorado Court of Appeals can reverse a sentence if it is not “in the interest of justice” finding that a sentencing judge abused his or her discretion in imposing an unduly harsh result upon you.
The Court of Appeals can change your sentence if is unduly harsh or excessive. If it does, it can send the case back to the trial court for resentencing or impose some lawful lesser sentence that is consistent with your plea bargain.
Both the district attorney and the defendant can appeal a question of law and the defendant may appeal a judgment of the County Court to the District court of that same county.
To be clear here – this appeal is to the District Court of the same county. A defendant has 35 days after the date of entry of judgment to file the proper notice of appeal in the County Court and to pay the advance costs for the preparation of the record. A copy of the Notice of Appeal and Designation of Record must also be served on the District Attorney.
The Notice of Appeal and Designation of Record in the District Court within the 35 days.
For more information on this process – click on this LINK
If you take a plea bargain and do not exercise your right to a trial – you give up substantial civil rights that can no longer be raised on appeal.
A plea batgain you enter into means that you cannot raise these arguments at all:
1. Whether the evidence the prosecution collected was reliable.
2. Whether the evidence the prosecution collected admissible at trial, or whether there was enough evidence to prove you were guilty of the charges.
3. Whether certain evidence was unconstitutionally obtained examples include whether a police lineup was unfair, that the police illegally coerced you to confess, that the witnesses were not credible, or that the court made an incorrect ruling that certain evidence would be admissible at trial.
4. Any claims about procedural matters that might have affected the fairness of a trial such as the denial of a defense, a motion to sever the trial of multiple charges or multiple defendants or the denial of a motion for a continuance.
If your plea agreement includes a stipulation to a specified sentence or a specified maximum term – known as a “cap” and the sentence was within the terms of that agreement, you have waived your right to challenge that sentence the ground that it violates Colorado law.
(1) When sentence is imposed upon any person following a conviction of any felony,…. 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 a 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) No appellate court shall review any sentence which is imposed unless, within forty-nine days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based.
(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.
Criminal sentences cannot be excessive in length, must have due regard for the protection of the public interest, the nature of the offense, and the character of the offender as it relates to the probability of his rehabilitation.
A Rational Selection – Sentencing decisions should reflect rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process.
Wide Discretion – But a trial court has wide discretion in the imposition of a sentence. Appellate court should not modify sentence imposed by trial judge unless record exhibits clear abuse of discretion by the trial judge in his determination.
Sentencing Factors – Guidelines for the determination of a sentence involve weighing several factors, including the nature of the offense, the character of the offender, rehabilitation of the defendant, the development of respect for law and deterrence of crime, and the protection of the public.
Sentence Must Be Supported – A sentence must be supported by reasons in record. In felony convictions involving the imposition of a sentence to a correctional facility, the sentencing judge must state on the record the basic reasons for the imposition of sentence. Particularly where sentence involves restrictive form of deprivation.
May Not Be Based On Speculation – A sentence may not be based on speculation. Speculation or conjecture regarding possible future facts is not accurate information upon which a sentence may be crafted.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Sex Crimes 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.
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