A Manual - Guide to Colorado Criminal Case Sentencing

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Preparing for the sentencing phase of every Colorado criminal case should include an organized and intelligent plan that tactically and strategically approaches the case using a method best-suited to the case and the Judge making the sentencing decision.

It is well known that approximately 95% of Colorado criminal cases never go to trial. While trials have always been the focus of much, if not most, of a criminal defense lawyer’s time, this article recognizes the widespread problem of the lack of thought and effort that goes into the sentencing phase of many criminal cases. This article intends to answer many important questions to help the person standing before a Colorado criminal Judge achieve the best possible result in sentencing.

The opportunity to impact a sentencing Judge’s decision is there, waiting, and the belief that there isn’t much that can be done to change that Judge’s decision is not true in this writer’s opinion.

First and foremost, when a criminal defendant is sentenced, appealing the Judge’s decision is almost never successful. A Colorado Court of Appeals decision (the reviewing court) will not modify a sentence unless the sentencing court's wide latitude was marred by clear abuse of discretion.

If a Judge is anywhere in the ballpark, that is, the sentencing range required by law; the sentence is based on appropriate considerations and reflected in the record of the proceedings; and if the sentence is factually supported by the circumstances of the case, an appeal will almost always fail.

After a case is negotiated - a plea bargain settlement is reached, it is common for many criminal defense lawyers to proceed to the sentencing phase without ever explaining the process to their client or properly preparing then for sentencing.

Many criminal cases proceed to sentencing on the heels of the entry of a plea. Others are set over for the preparation of a pre-sentence report and the presentation of evidence and lengthy argument.

While rarely occurring, some cases may be settled on the date of the trial with the sentencing hearing immediately following. Conversely, at times the sentencing hearing can occur months later following the completion of certain classes or other pre-conditions that are part of the plea bargain agreement.

Colorado law provides that the strict rules of evidence do not apply to a sentencing hearing. In fact any evidence that a Judge deems to have probative value will be heard. Colo. R. Evid. 1101

Colorado Revised Statutes Title 18. Criminal Code § 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 the 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;

(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; and

(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.

Understanding the Right of “Allocution”

In every criminal court in our country, defendants stand before their Judge for sentencing. Every one of those Defendants has the right of allocution. The right of allocution gives a Defendant the right to be present in court and to speak to “mitigation of punishment” before sentence is pronounced.

An allocution statement provides an opportunity for the Defense to provide the Court with the one opportunity to humanize the now convicted Defendant. This opportunity should not be wasted. When the sentencing judge asks if a Defendant has anything to say at the time of sentencing, they can elect to say nothing. This decision, while simpler and less stressful, is a mistake.

The sentencing hearing can be viewed as the penultimate phase in a criminal case. The exercise of the right to allocute provides for a chance to express remorse, to accept responsibility, and to explain one’s personal circumstances. The right has a long and important, centuries old history across the world and in the American legal system.

There are some basic rules that apply to a sentencing hearing. The following are guidelines only to the Defendant and for that reason they must be viewed in the context of the case being argued.

• Avoid being overly apologetic, obsequious, - avoid begging.
• Do not make the sentencing solely about you (narcissism). “ I need to see my children.”
• Be humble.
• Avoid clichés such as “ I am turning my life around” or “ Now I have seen the light.”
• Don’t apologize for “wasting the time” of the Court, law enforcement, or the prosecutor.
• Don’t make promises, shallow bargains, or “guarantees”. ( “If you give me probation I promise never to be back in front of you.”)
• Be mindful of and control your body language - stand tall and make eye contact with the Judge and the victim(s) (if they appear for sentencing) while you express genuine remorse and deliver what must be, what has to be, a sincere and heartfelt apology.
• Above all do NOT make excuses or blame anyone else for the crimes committed.

Expressing true regret and heartfelt remorse is not easy to fake. The expression must be to the victims of the crime or crimes to which the Defendant has admitted guilt even if they are not there.

Expressions of regret must not be the kind of regret that speaks to being caught, but rather is an expression of the human connection we all have to those who have been hurt by our actions.

When an apology is real - everyone in the courtroom will know it is real. Expressing emotion is not only permitted, I encourage it from my clients. Shaking, crying, nervousness and real fear are NOT forbidden or concerning emotions, they are welcomed. It makes you real.. and humanizes you to everyone in the courtroom.

The actual mechanics of the allocution statement are also important. The preparation of the statement takes time and effort and may go through several drafts to “get it right.”

• The allocution statement should be short - concise, and, if in writing, well written.
• Many Defendant’s find that they must write, then read, their statement. That is fine as long as the statement is less than two pages and double spaced or bullets are used to organize the presentation so there are no skipped lines or any loss in the delivery.
• The statement should consist of an affirmative, clear description of the wrongful conduct by the Defendant and should make clear the Defendant fully understands the nature of their crime(s).
• The statement should also be clear on the plan for the future. It should have specifics as to the method and manner of the changes that will be made and it should include a concrete time frame for the accomplishment of the goals stated. Thought and clarity should underlie every line of the presentation.
• The statement should definitively state why the Defendant has the ability and willingness to reform and not just seem to appear as a desperate attempt to “explain” themselves to the Judge, or to attempt to “come clean.”

The goal of each and every sentencing hearing is to deliver a presentation that sets this case and this Defendant apart from the others that have been sentenced for the same crimes before this Judge. It should inform the Judge that not only will this circumstance not happen again, but also that there is a defined and well-thought-out plan that supports the themes of the presentation.

On occasion, a Defendant will send a letter directly to the Judge. This author strongly recommends against this approach. It usually is viewed as insincere and can actually have a negative impact on the sentencing judge.

Sometimes called a “prison letter” letter it is letter directly to the Judge which is most often self-serving, self-indulgent, and frankly irritating to the Judge. These letters often run on to many pages of irrelevant paragraphs “blaming” others for the crimes that have been committed.

The criminal defense lawyer must always be consulted before this kind of letter is executed and sent. Rarely will a criminal defense lawyer approve this kind of approach, but, if it is agreed that the letter will be submitted, the lawyer should help the client edit the letter and then the lawyer, not the Defendant, should submit the letter to the Court.

In a nutshell, Colorado sentencing hearings come down to each side presenting those facts and circumstances supporting their sentencing arguments.

Mitigating facts lessen the severity of the impact of the crime and support a more lenient sentence for the Defendant. Mitigating facts are not only admissible on behalf of a Defendant, every persuasive fact in the Defendant's favor that could sway a Judge should be presented at sentencing.

Aggravating circumstances have the opposite impact - they are used by the prosecutor to persuade a sentencing Judge to impose a more harsh sentence. These are facts or circumstances that may focus on the severity and/or the culpability of a crime.

Colorado sentencing Judges will consider almost anything that is presented at the sentencing hearing as the rules of evidence do not apply to sentencing hearings. It is left to the lawyers to make certain the Judge has all of the information necessary to impose a fair and just sentence from the perspective of their “side.”

By understanding the whole of the Defendant’s life, the criminal defense lawyer strengthens that relationship and learns what is necessary to portray that person at the sentencing hearing. This is particularly important if the client is different from the lawyer in terms of racial, ethnic, cultural, or socioeconomic background.

Understanding a client's struggles means taking the time to understand the person being sentenced.

The Federal Criminal Justice System provides a good foundation for some of the most important and most common mitigating circumstances in every criminal case.

• The Defendant only played a minor role in the commission of the crime(s).
• The victim not only willingly participated in the crime, he or she initiated it or in some way or somehow provoked the commission of the crime.
• The Defendant’s mental health or other emotional issues played a significant role in the commission of the crime.
• The crime itself caused no lasting harm or was committed in a way that demonstrated there was no intention to cause harm.
• The Defendant has no record or a has, at worst, a minor criminal history.
• The Defendant was compelled to commit the crime because of his need to provide for his or his family’s life necessities.
• The Defendant not only has accepted personal responsibility for the crime he or she feels has expressed sincere remorse.

• The Defendant was induced to commit the crime by others.
• The Defendant acted under coercion or duress.
• No physical harm against another occurred and no harm was ever intended.
• The Defendant has a difficult family history (such as a difficult childhood).
• The Defendant has a lack of education.
• The Defendant has, or had, a difficult employment history or, on the contrary, continued successful and stable employment and excellent future employment prospects.
• The Defendant has dependents with strong financial or emotional reliance on the Defendant and whose lives will be greatly impacted if the Defendant is incarcerated.
• The Defendant has a serious substance abuse and is in need of treatment.
• There is a strong argument that the Defendant is unlikely to repeat the crime because the circumstances of the crime are unlikely to occur again.

Aggravating factors may include:

• A serious criminal history especially for the same type of crime.
• A lack remorse.
• The crime was violent and caused significant injuries or other harm to the victim.
• The crime impacted a child or children.
• There were significant financial losses to the victim.

Tailoring a specific case to the sentencing Judge in that case at issue is critically important.

Preparing beforehand means knowing the predilections of THIS sentencing Judge in THIS case. As all Judges are different and all have wide discretion. An argument that might impact one Judge may not impact another. Know the Judge.

This author’s experience is that the common assumption that sentencing Judges have an immutable “number” to which they are committed before taking the bench for sentencing...is not true. Putting the time and effort into the sentencing presentation - using the right of allocution, strategically, tactically and intelligently DOES impact a sentencing Judge.

Carefully balancing the several factors discussed above is the key to tailoring a Defendant’s allocution to the predilections of the Judge making this sentencing decision. Preparation means thoroughly thinking about what to say in this case and not merely reciting what they might think this sentencing Judge wants to hear.

This means:

• Specificity - specific plans for the future - a concrete outline underlying the often recited trite phrase almost all Defendant’s include in their statements for “turning their life around.”
• Resisting the urge to blame others for their actions.
• Not asking the Judge for “forgiveness” - as one Judge I know put it - ‘it is not a Judge’s role to grant forgiveness.’
• Showing genuine and sincere remorse. Colorado sentencing Judges are adept at quickly identifying deceit and fake remorse of the Defendant’s appearing before them.
• Finally, ...reflecting on the impact of the Defendant’s crime or crimes on their victims and showing an understanding and sensitivity to that pain.

If a Defendant has gone to trial and been convicted - what can that Defendant do if he or she maintains their innocence at the sentencing hearing?

If a Defendant believes he or she was wrongly convicted, it is nearly impossible to maintain a sincere expression of remorse. It is better to remain silent at sentencing than attempting to feign remorse to try to appeal to the sentencing Judge for a lenient sentence.

It is a bad idea to offer excuses or rationalizations while maintaining innocence. The wrongfully convicted should focus on their right to appeal that follows immediately after the sentencing hearing.

In most serious crime sentencing hearings the county probation department will prepare a report called a pre-sentence report that explores the Defendant’s demographics, the facts of the crime and the impact of the crime on the victims. The report then usually recommends to the Judge the appropriate sentence.

Judges will rely heavily on the Pre-Sentence Investigative Report (PSIR) at sentencing. Probation officers, who literally work for the Judicial Branch of Government, work closely with Judges every day and they have great credibility with those Judges.

Understanding the importance of the PSIR cannot be understated and the experienced Colorado criminal defense attorney will carefully analyze the report in the context of the most successful well considered approach to the sentencing phase of THIS case.

After each side argues its respective case, the judge will review the probation department’s report and all other documentation submitted by both the defense and prosecution.

The Defendant’s interview with the probation officer who will author the PSIR is important. The Defendant must accept full responsibility during the interview or the report will deign that Defendant as having no remorse. It is far better that a Defendant politely, at their lawyer’s order, refuse to make a statement at the PSIR interview, than to say the wrong thing.

The attorney should prepare his client for the kind of questions that may be asked at the interview.

The Defendant should always provide accurate and truthful information and be on their best behavior with the probation officer

No less than 5 nor more than 15 letters makes sense in most cases.

Those with the most credibility in the Defendant’s life - and who have the perspective of someone who truly knows the Defendant make the most lasting impressions. This list should include a diverse mix of people, made up of family and friends, co-workers and the entire community of the Defendant’s life.

A Pastor can address one issue, a best friend another, a colleague from work a third, a community leader a fourth, and the like.

A Good Character Letter Should:

• Reinforce the criminal defense lawyer’s sentencing themes.
• Highlight the Defendant’s volunteer efforts in the community.
• Highlight the Defendant’s honesty and integrity and self discipline.
• Highlight the Defendant’s devotion to his family members.
• Answer the question of why this Defendant is different than others.
• Provide specific examples of the Defendant’s kind acts in his world.
• Explain why the crime committed is completely inconsistent and out of character as weighed against the Defendant’s entire life by providing detailed examples or short vignettes that describe this person’s character.
• Should be no more than two or three pages double spaced if possible.

The character letter writer should demonstrate that in writing the letter they are aware of the crimes committed and, knowing these facts, are still willing to write the letter.

The writer should not make excuses or try to excuse the crime or the impact of the crime on the victim in the case.

The sentencing letter should never express resentment or anger or state things such as the Defendant was “rail roaded” in an unfair criminal justice system.

The letter should make clear the nature and length of the writer’s relationship with the Defendant.

Colorado Criminal Defense Lawyer H. Michael Steinberg has more than 42 years of experience (2020) successfully advocating for his clients through each and every phase of the criminal justice process.. including the sentencing phase. You are not alone.