How can I ask a Judge to Reconsider my Prison Sentence?

Colorado Rule 35 (b) Motions To Reconsider Sentences raise this question: How Can I Ask A Judge To Reconsider My Prison Sentence? Colorado Rule 35 (b) Motions To Reconsider Sentences brings into focus a whole host of legal issues addressing a Trial court’s (the sentencing judge) jurisdiction (authority) to change a sentence once it has been imposed. The Colorado rule Crim. P. 35 (b), if there is a vehicle for reconsideration of a sentence, is the way a trial judge has to change his or her mind and to reduce the severity of a sentence.

To put your mind at ease a judge cannot increase the severity of a sentence The Court can ONLY DECREASE it under this Rule 35 (b).

Here is a reprint of the Rule Rule 35 (b).

Reduction of Sentence. The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 120 days after the sentence is imposed, or (2) within 120 days after

receipt by the court of a remittitur issued upon the appeal, or (3) within 120 days after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing.

Rule 35(b) “suspend[s] the finality of the original sentence” for 120 days for the limited purpose of reconsidering the sentence, prompted by either the defendant or the trial court itself.

While Rule 35 (b) is the proper tool to reconsider every sentence including sentences to: the county jail lengthy probation sentences inappropriate sentences involving various forms of treatmentessentially ANY sentence a court imposes which you wish the judge to reconsider in certain cases such as cases where the Department of Corrections has been imposed somewhat different rules and guidelines must be understood.

Crim.P. 35(b) provides trial courts the opportunity to review a sentence to ensure it is properly imposed before it is final. In reviewing Crim.P. 35(b) motions trial or so called “sentencing” courts are called on to determine whether the sentence was fair in light of the purposes of the sentencing code.

The Colorado courts of appeal have stated and restated that the sole reason for pursuing a 35 (b) motion for reconsideration should not ostensibly be “exemplary performance while in a Colorado prison.”

The Colorado courts enforce Rule 35 (b) Motion procedures closely. Caution is warranted to pay attention to deadlines.

Whether a trial court has continued jurisdiction (or authority) to reconsider a sentence is limited to two steps.

First, whether the trial court rules on a 35 (b) motion within a reasonable time. In evaluating the circumstances of a particular case, the Colorado Courts of Appeal have noted that ” a reasonable time’ and ‘ reasonable efforts’ varies with the circumstances of each individual case.

The second factor is whether a defendant has made reasonable efforts to pursue a ruling on his 35 (b) motion- or if by delaying too long in he has abandoned the motion. One thing is certain you cannot delay too long in obtaining a ruling or a hearing on your 35 (b) if your motion has any chance of being granted.

As noted- a Colorado Trial court has jurisdiction to rule on a 35(b) motion within a ” reasonable time” after the expiration of the 120 day filing window.

If a Trial court fails to rule on a 35(b) motion within a reasonable time and or the defendant does not adequately pursue that motion, the motion is considered abandoned and jurisdiction is lost.

To prevent a finding of “abandonment,” a defendant must take reasonable efforts to secure a ruling on his motion such as requesting a Court to rule on the motion immediately or within a short time after filing the motion. Clearly the first deadline is to file original motion WITHIN 120 day of the day of sentencing. It is also just as clear that a request for a hearing on the motion cannot be unnecessarily delayed waiting on a Defendant’s performance in prison.

While the courts have held that a reasonable time is only that time necessary for a court to decide the issues presented in the motion they have also held that ” no period of time can be reasonable where its purpose is contrary to the purposes and interests” served by rule 35(b).”

In the words of the Colorado Appellate Courts “the clearest example of delay with an improper purpose is that delay undertaken solely to allow the defendant an opportunity to compile a favorable DOC record. A Rule 35 (b) motion is NOT ” a license to wait and reevaluate the sentencing decision in the light of subsequent developments’ “

[W]e do not by this ruling mean to preclude evidence of a defendant’s conduct during incarceration as a relevant consideration in a Crim.P. 35(b) proceeding, we hold that it is error to modify a defendant’s sentence based only upon such evidence, particularly when the sole rationale is to reward exemplary behavior during incarceration .

In it’s decisions on this subject the Colorado Courts of Appeal have held that judges who routinely grant excessive delay for the purpose of allowing offenders to accumulate favorable DOC records are acting improperly because a “sentencing court’s jurisdiction is extended only for the time necessary for it to deal with the practicalities of assessing and ruling on a 35(b) motion” and that allowing time for a Defendant to build a DOC record, are considered inherently unreasonable and is therefore an “improper purposes” to delay a ruling on a 35 (b).

A Defendant’s “record” in prison is less important than the changes in his or her mental state outlook personality and understanding about the crime or crimes they may have committed.

The person standing before the sentencing judge may have been changed by 6 months in prison.

With time to reflect on their crimes appearing once more before the sentencing court a Defendant may present as a very different and more enlightened person. The judge may truly see a different Defendant and therefore feel it is appropriate to grant a reconsideration. The addition of ANY NEW INFORMATION that acts as mitigation in the case which may not have been presented at the sentencing hearing information regarding the crime or the circumstances surrounding the commission of the crime if such information exists (and there was a good reason why said information was not available earlier) may be exactly the basis for a sentencing judge to grant a modification of the original sentence .

Focusing solely on “ classes and certificates” or other employment or trustee opportunities that an inmate may acccomplished while in prison or other “good deeds” while there may not be “enough” and should NEVER be presented as the sole support for the Motion as such is not within “the spirit” or reasoning behind the rule itself.

If the sole purpose offered for a “delayed ruling: Motion for a Rule 35 (b) Reconsideration of a prison sentence is to extend out the 120 day time frame under the rule TOO FAR until a Defendant can present “evidence of rehabilitation,” while in the prison system a Court may deny the motion and make a finding of “abandonment” of the motion. Once again a motion is “abandoned” when there is unreasonable delay and a Defendant does not make reasonable efforts to pursue the motion

One should urge only a “reasonable delay” before granting a hearing and or ruling on the Motion. Furthermore the focus for the Motion might be in addition to performance in the Department of Corrections a reexamination on the purposes of sentencing as laid out in CRS 18-1-102.5

1. The purposes of this code with respect to sentencing are:
   1. To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;
   2. 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;
   3. To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses;
   4. To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders;
   5. 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
   6. 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.

A sentencing judge should ask after reading the Motion “did I truly see and fully understand the individual and the crime or crimes before me when I passed sentence?”

The prosecutor in the absence of such an approach will argue that the Motion should be denied because the delay for the consideration of the motion was for the sole and improper purpose of compiling a favorable DOC record, in conflict with the Colorado case in Mamula v. People, 847 P.2d 1135 (Colo.1993).

The court may view too long of a “delayed ruling” under Rule 35 (b)” (which suspends the “finality of the original sentence” for 120 days for the limited purpose of reconsidering the sentence), as abandoned ultimately causing a loss of a sentencing Judge’s jurisdiction to modify a sentence if the Court finds that the Motion was not filed AND pursued within “a reasonable time. “

In order to prevent abandonment, a defendant must take reasonable efforts to secure a ruling on his motion.

we feel obliged to address the somewhat fluid nature of our approach to 35(b) motions. Because subject matter jurisdiction may be thought of as a distinct demarcation, it may appear unusual to evaluate a court’s jurisdiction as a question of the reasonableness of the court’s delay and of the defendant’s efforts to secure a ruling.

However, in the 35(b) context, this approach is sensible. Our evaluation of jurisdiction consists of two steps. First, we evaluate whether the court ruled on the motion within a reasonable time. In allowing this limited extension of time, we attempt to accommodate the very real pressures faced by trial courts. In an effort to ensure thoughtful rulings, we seek to allow courts a reasonable period to consider and respond to a timely filed motion.

Only when the court somehow abuses this reasonable extension do we turn to the second factor, which evaluates whether a defendant made reasonable efforts to pursue a ruling on his motion or if, by contrast, he abandoned the motion. ..we (will) consider all of the circumstances and determine whether the defendant made reasonable efforts to secure a ruling on his motion.

Therefore, our two-step analysis strikes the appropriate balance between finality of judgments and fair treatment of defendants.

In another case the Colorado Appellate Courts said this:

[W]e do not by this ruling mean to preclude evidence of a defendant’s conduct during incarceration as a relevant consideration in a Crim.P. 35(b) proceeding, we hold that it is error to modify a defendant’s sentence based only upon such evidence, particularly when the sole rationale is to reward exemplary behavior during incarceration.

[I]n in Mamula v. People, 847 P.2d 1135 (Colo.1993), Mamula, filed his Crim.P. 35(b) motion within the prescribed timeframe. Mamula then asked the court to delay hearing the motion so that he could furnish the court with supporting documents. Though such a request standing alone is not unreasonable, we held that the twenty month delay used to assist Mamula in building a record of good behavior at the DOC was unreasonable.

Thus, in Mamula, we applied the reasonableness standard set forth in Fuqua to conclude that Mamula’s failure to seek a ruling on his motion was unreasonable.We held that “[n]o period of time can be reasonable where its purpose is contrary to the purposes and interests served by the rule.” . Based on our conclusion that Mamula delayed the hearing on the motion for an unreasonable period of time we held that he had abandoned the motion as a matter of law.”

The Appellate Court’s in Colorado then enacted a framework to instruct the lower courts on how to approach these 35 (b) Motions for Reconsideration:

“First, a reviewing court must determine the timeliness of the motion, considering both when it is filed and when it is heard.

If the motion is not filed within the prescribed period it must be denied unless it falls under a recognized exception. See Crim.P. 35( c ) ( HMS usually “lawyer error”)

If the motion is timely filed, it must be decided within a reasonable time. {A] ” reasonable time contemplated by rule 35(b) is only that time reasonably necessary to decide the issue presented by the motion.”

Examples of an unreasonable delay in hearing a Crim.P. 35(b) motion cited by the Courts have been a delay of over one year in setting the motion for hearing. While a reasonable timeframe for a hearing will depend on whether the defendant seeking review.. whether a Defendant

has made a “reasonable effort to secure an expeditious ruling .” will necessarily involve “ a defendant’s motivation behind delaying review to determine whether any delay is unreasonable.

IF a trial court determines that the defendant has met the threshold requirements of timely filing and timely hearing, THEN the court is then free to consider all evidence presented at a 35(b) hearing.

“This includes evidence of exemplary conduct while incarcerated. Crim.P. 35(b) does not limit the evidence the trial court may consider, and we decline to create such a restriction. In our view the purposes of the sentencing statutes are best served without imposing a judicially created limitation on the evidence considered.

The concept behind Rule 35 (b) is the suspension of the finality of sentence for such additional time as necessary for proper resolution of the Motion the Rule assures reliability in the sentencing process. BUT if you delay ruling TOO LONG a Court may find that it has lost jurisdiction to modify a sentence. If a Court finds it has NOT lost jurisdiction I submit the Motion should be based on more than an inmate’s “record” at the Department of Corrections. While that record is important the Motion under 35(b) should be more thoughtful and comprehensive than solely basing it on certificates of achievement but rather a broad ranging review of the entire case and the “whole person” asking for the modification.

About The Author: H. Michael Steinberg email: michaelsteinberg@hmichaelsteinberg.com. If you are charged with Colorado Rule 35 (b) Motions To Reconsider Sentences, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 42 years of day to day courtroom experience specializing only in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. So call now for an immediate free phone consultation.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County and all the other cities and counties of Colorado along the I-25 Corridoron cases involving Colorado Rule 35 (b) Motions To Reconsider Sentences.