Category Archives: Sentencing

2013 Colorado State Law Impacts Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases – CRS § 16-7-301

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases has occurred for decades.. A little known statute – CRS § 16-7-301 – provided not only the opportunity – but the obligation – of Colorado District Attorneys to plea bargain directly with defenseless and confused unrepresented persons just arrested and most of the time held overnight.

 Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

These individuals have been denied the right to have lawyers present when they are making some of the most important decisions of their lives. The new law – Colorado House Bill 13-1210 – stops this unfair practice. It is effective on January 1, 2014.

The United States Supreme Court Sends A Message To The State Of Colorado – “Stop This Practice”

House Bill 13-1210 makes Colorado criminal law consistent with recent U.S. supreme court decisions (Missouri v. Frye and Lafler v. Cooper, (U.S. 2012)). These decisions have reinforced the 6th Amendment right to counsel during the critical stages of plea bargaining. The new law repeals subsection 4 of CRS § 16-7-301 and provides the right for a person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to obtain counsel before plea bargaining with the prosecuting attorney.

Remember the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defence.”

Three distinct threshold limitations must be satisfied for the right to a lawyer under the Sixth Amendment:

First, the right to counsel must have attached;

Second, the stage during which the alleged harm to the defendant occurred must be deemed a “critical” stage;

and

Third, the defendant must able to be sentenced to actual incarceration following his trial or plea.

The OLD Colorado Plea Bargaining Law – Unfairness And Unjust Unequal Negotiations

The old law – to be changed in January of 2014 – provided that an initial appearance under Colorado Rule 5 was insufficient to trigger the attachment of the right to counsel. During the initial appearance in Colorado, referred to as a Rule 5 Advisement – (“the Crim. P. 5 proceeding,”) – the defendant is advised of the nature of the charges against him. These rights, including the right to counsel, to a jury, and the right against self-incrimination—and the terms of his bail, if he is bailable, are set at that time.

Under the Old Law – for misdemeanors, petty offenses, or offenses under title 42, C.R.S. [traffic offenses], the prosecuting attorney is obligated to tell the unrepresented defendant any plea offer at the first appearance in court that is based on the facts as known by the prosecuting attorney at that time.

These plea discussions are actually required to occur before the appointment of a lawyer.

The law states that:

“[t]he application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant” about potential plea offers.

Here’s the trick that had thousands to plead guilty before consulting a lawyer.

The person detained in jail is led to believe that his immediate release will be based on a guilty plea – and – if he or she – asserts his or her right to counsel, the prosecutor informs that person that – if they cannot post bail – ( sometimes this is NOT explained by the DA) – they may have to remain incarcerated until the second appearance. Many defendants cannot stand another night in jail. Colorado’s system of requiring misdemeanor defendants to talk with prosecutors about possible plea options before the appointment of counsel is wrong at many levels.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases – The Procedure – An Example In The Denver County Courts

1. The First Advisement

In Denver’s county courts – the plea bargaining process starts with the accused viewing a standardized set of recorded warnings. All defendants watch a video advisement, listen to an audio advisement, or read a written advisement of their rights before speaking to the district attorney.

The advisement contains an explanation of the initial appearance and provides an overview of the individual constitutional and statutory rights, including the right to counsel, to which each defendant is entitled. These other rights as described in the advisement include the right to bail, the right to a jury trial, the right to a speedy trial, and the right to remain silent.

2, The Meeting With The DA

Following the advisement, and before the judge comes out to conduct the hearing, a district attorney speaks directly with each defendant in the manner that is presently (again to be changed on Jan 1 2014) required by CRS § 16-7-301.

The plea offer occurs just before the judge comes out and is told to the defendant in the courtroom in the immediate minutes immediately prior the formal advisement an arraignment on the complaint.

3. If The Plea Bargain Is Accepted

If the unrepresented defendant accepts the plea offer – the defendant is given a written advisement of their constitutional rights known as the “Rule 11” advisement form. This form explains the enumerated constitutional and statutory rights the defendant waives by pleading guilty as well as the possible penalties for the criminal conviction agreed to.

After the defendant signs the “Rule 11 form,” the district attorney informs the court of the proposed plea bargain which includes the agreed upon penalty, and then the form is given to the judge.

The judge then gives an oral advisement of the same Rule 11 rights and makes the ironic finding on the record that the defendant’s plea was entered knowingly, voluntarily, and intelligently; and that there is a factual basis, or valid waiver of the establishment of a factual basis, for the plea.

The NEW Colorado Plea Bargaining Law – Welcome Changes To The Unfairness Of The OLD Colorado Plea Bargaining Law

New Constitutional Cases decided this year – 2013 – have held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.”

The initial appearance of the defendant, where the defendant is informed of the “formal accusation” against him, triggers the attachment of the Sixth Amendment right to counsel.

The OLD Colorado law does not provide for the appointment of counsel at the defendant’s first appearance even in cases where the defendant has a right to counsel.

These new cases held – what we – in the criminal justice know only too well – “[p]lea bargaining is [a] critical stage, not only because it is ‘an essential component of the administration of justice,’ but also because ninety-five percent of convictions end in plea bargains.”

The NEW Law Strikes The Language (Section 4) In The OLD Statute (CRS § 16-7-301) That Permitted the Unjust Procedure Outlined Above

The striking of the language of Section 4 of CRS § 16-7-301 means – in Colorado – that the Sixth Amendment now applies to the critical stage of any criminal case – the process of evaluating a plea offer AND therefore – the appointment and presence of counsel are constitutionally required. The entire plea bargaining process is a critical stage to which the full protections of the Sixth Amendment apply.

Justice Anthony M. Kennedy writes that the “Criminal justice today is for the most part a system of pleas, not a system of trials,”wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was even higher.

“In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

§ 16-7-301. [Effective 1/1/2014] Propriety of plea discussions and plea agreements

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarcerationor because the defendant refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one or more of the following, depending upon the circumstances of the individual case: (a) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere (no contest);

(b) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere (no contest) to another offense reasonably related to the defendant’s conduct;

(c) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere (no contest);

(d) To consent to diversion, as provided in section 18-1.3-101, C.R.S.;

(e) To consent to deferred sentencing, as provided in section 18-1.3-102, C.R.S.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) [Repealed by 2013 amendment.]

(5) Any plea agreement in a case involving a plea to a violation of article 18 of title 18, C.R.S., may not require a waiver by the defendant of the right to petition to have the defendant’s criminal conviction records sealed pursuant to part 3 of article 72 of title 24, C.R.S.

The Law (That Will Be) Stricken As Of January 2014:

(4) (a) In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prosecutor shall inform the court of whether a plea agreement has been reached, and:

(I) If a plea agreement has been reached, the prosecutor shall inform the court of the terms of the proposed plea agreement and the recommended penalty. If the court determines that the proposed plea agreement is acceptable, the court shall, in addition to any other advisement required by law, advise the defendant of the right to a court-appointed attorney prior to acceptance of the defendant’s plea. The court shall also advise the defendant prior to acceptance of the defendant’s plea that the court exercises independent judgment in deciding whether to grant charge and sentence concessions made in the plea agreement and that the court may therefore sentence the defendant in a manner that is different than that discussed during the plea discussions.

(II) If a plea agreement has not been reached and the defendant chooses to retain an attorney, or the defendant meets the requirements of section 21-1-103, C.R.S vytorin 10 20., the court shall appoint counsel and all discussions with the defendant outside of the presence of counsel shall cease.

(b) After completion of discussions as described in paragraph (a) of this subsection (4), if counsel is retained by the defendant, or if counsel is appointed for the defendant, when it appears that the effective administration of justice will thereby be served, the prosecutor may engage in additional plea discussions with the counsel for the defense for the purpose of reaching a plea agreement.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

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Contact A Denver, Colorado Domestic Violence Criminal Defense Lawyer on the issue of Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases.

Colorado’s Stalking Law – New Case Explores One Sentence For Alleged Multiple Acts

Colorado’s Stalking Law

By Colorado Domestic Violence Defense Lawyer Attorney – for the defense of Stalking – Harassment Cases – H. Michael Steinberg

Colorado Stalking – Harassment Lawyer, C.R.S. 18-3-602 fo Felony Charges

Colorado’s Stalking Law presents as one of the most complex felonies alleging domestic violence in the state. The law itself is vague – confusing – and difficult to understand. However a 2010 Colorado Court of Appeals case People v. Demetrius Herron – not only clarifies the law – but carefully analyzes when and how an individual comes under this ambiguous law.

The Herron case held that a prosecutor could not “trump up” a single alleged crime of stalking into multiple convictions ending with multiple punishments and therefore enhanced sentencing.

Colorado’s Stalking Law
Colorado’s Stalking Law

Colorado’s Stalking laws fit into basically two categories:

Credible Threat Stalking – § 18-3-602 (1)( a )

and

Emotional Distress Stalking, § 18-3-602 (1)( c )

The issue in the case People v. Herron was whether the DA – could seek to “split” an individual charged with Stalking into multiple convictions with multiple punishments if convicted. The Colorado Court of Appeals said no.

The Stalking Law  in Colorado – And The Law Against Multiplicity of Punishments

Multiplicity is “the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct.” In Colorado – unless the criminal law in question is expressly authorized by the General Assembly to permit multiple punishments, then multiplicitous convictions violate the Double Jeopardy Clauses of the United States and Colorado Constitutions. U.S. Const. amend. V; Colo. Const. art. II, § 18;

Therefore – when the issue in Herron reached the court of appeals – the court’s analysis in addressing a multiplicity challenge was to analyze the origins of the Colorado Stalking Law and determine whether the General Assembly’s definition of the crime charged encompasses a continuous course of conduct and to further determine whether the allowable “unit of prosecution” permitted multiple punishments.

Specifically the court looked at “the manner in which a criminal statute permits a defendant’s conduct to be divided into discrete acts for purposes of prosecuting multiple offenses.”

Stalking Is ONE Act – One Continuous Course Of Conduct

In scrutinizing the law to determine the “unit of prosecution,” the Court looked at how the law was designed.

Here Is Colorado’s Stalking Law (2013 Version) Also Known As Vonnie’s Law – With Bracketed Comments

§18-3-602. Stalking – penalty – definitions – Vonnie’s law

(1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

[The Law Outlines Three Basic Ways To Commit The Crime]

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship; or

(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

(2) For the purposes of this part 6:

[These are the important definitions that help explain the Stalking law]

(a) Conduct in connection with” a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat.

(b) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

(c) “Immediate family” includes the person’s spouse and the person’s parent, grandparent, sibling, or child.

(d) “Repeated” or “repeatedly” means on more than one occasion.

(3) A person who commits stalking:

(a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or

(b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted.

(4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401(10).

[New – Section – Enhanced Sentencing If A Restraining Order Is In Place]

(5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony.

(6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.

(7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report.

(8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-103(2) (d), C.R.S., and a protection order shall issue in accordance with section 18-1-1001(5).

(b) This subsection (8) shall be known and may be cited as “Vonnie’s law“.

(9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently.

“Stalking” Cannot Be Separated Into More Than One “Unit” Of Continuous Conduct – One Crime

The Herron Court held that:

“We conclude from the plain words of the statute that the legislatively defined unit of prosecution for the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance. “

It is a “single crime for which the General Assembly has not authorized multiple punishments.”

The Court made it clear that acts constituting stalking, such as following, approaching, contacting, or placing another under surveillance, have to be performed “repeatedly.” To be convicted of a second stalking offense, a defendant must complete a separate transaction that is factually distinct from the first, on at least two more occasions.

One Last Point – The Defendant Need Not “Know” That His – Her Actions Caused The Alleged Victim to Suffer Serious Emotional Distress

Juries decide whether the emotional distress was caused by the accused and whether the “serious emotional distress” meets the objective “reasonable person” standard to measure whether the emotional distress inflicted upon the victim was actually “serious” or just annoying.

The mental state almost always applies to all of the “elements” of a crime unless the legislative intent is to limit its application. The Colorado State General Assembly has stated that since a stalker may be oblivious to reality of the emotional distress he or she is causing,….”it would be absurd to allow a defendant so out-of-touch with reality to avoid criminal prosecution.”

Therefore – the mental state for this crime is “knowingly” but this mental state does not apply to the element that the alleged stalker be aware that his or her conduct would cause serious emotional distress to a reasonable person.

WARNING – If You Are Under Investigation For Felony Stalking In Colorado

Stalking in Colorado is a felony – the impact of a felony on one’s life can not be understated. The crime itself is difficult for the prosecution to prove because of the very ambiguous nature of the offense. Local police which try – then – in the guise of conducting their investigation – to obtain admissions on the part of the “target” – you – that place you in certain locations – making certain phone calls – sending certain texts.. Our advice – exercise your Miranda rights – remain silent – and call an experienced Colorado criminal defense lawyer as soon as practicable.

Please call our law firm if you have questions about ..

Colorado’s Stalking Law

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.

If you have questions about Colorado’s Stalking Laws in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will also provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards ..Colorado’s Stalking Law.

2012 Stand Your Ground Defense Fails In Florida Domestic Violence Case

In one of the most tragic results of a Florida Stand Your Ground defense case, a young woman has been sentenced to 20 years in prison. After the Trayvon Martin case, Florida’s Stand Your Ground law has received close scrutiny by the media.

In this case, Marissa Alexander received a 20-year sentence for firing a shot in what she claims was self-defense.

This case is the “perfect storm” for the intersection of THREE huge criminal justice risks – plea bargaining, mandatory minimum sentencing for crimes of violence, and failed affirmative defenses. In the Alexander case Marissa Alexander ran the gauntlet and her case is exemplary of:

1. The dangers of NOT plea bargaining and taking a case to trial where..

2. The Defendant faces mandatory minimum sentencing for violent crimes and

3. Is not given the shelter and protection of ancient self defense concepts by a judge who rejects the immunity offered by the state’s Stand Your Ground ….

The judge in this case rejected Alexander’s “Stand Your Ground” defense, saying she could have escaped instead of firing. Florida courts have often recognized a common law doctrine that says when someone is acting in self-defense in their home, they don’t have a duty to retreat to first.

A plea bargain of three years was rejected by Marissa by the special prosecutor assigned to try the case, Angela Corey. Alexander, hoping the jury would accept her self defense theory, instead rejected it, apparently not believing that she had been in fear for her life.

Further complicating the case is the “ex” Rico Gray, 36, had been arrested twice for domestic battery, and there was a restraining erectile dysfunction order against him in effect that night. Also, again complicating the case Ms. Alexander had a history of DV in an assault on Gray four months after the shooting.

The Mandatory Sentence Twist

The gauntlet here was the defendant’s decision to take the self defense theory to the jury after it was rejected by the judge, turning down the plea of three years, and running the risk of a mandatory minimum sentence of 20 years -(mandatory minimum sentences like the one applied here – were also passed in the 1980’s in Colorado prevent judgse from modifying the sentence to fit the crime.)

“If we want to protect self-defense in Florida, we can’t have a 20-year mandatory minimum hanging over the heads of people who fire warning shots instead of just killing their attacker,” said Greg Newburn, Florida project director for Families Against Mandatory Minimums.

And domestic violence advocates say the criminal justice system is biased against women who fight back.

“It’s not feminine for women to defend themselves,” she said. “In the minds of most people, women ought to be protected, not protect themselves.”

She Was Angry

The DA argued In court that Alexander’s shot could have hit her husband or his children and that she “was angry” when she fired the shot and “not in fear.”

But Rita Smith, director of the National Coalition Against Domestic Violence replies with this thoughtful response.

“It’s not feminine for women to defend themselves,” she said. “In the minds of most people, women ought to be protected, not protect themselves.”

“Ms. Alexander exhibited great courage and restraint in protecting herself while also not killing anyone,…”