Colorado Criminal Domestic Violence Sentencing Procedures and Law – What Happens In A Colorado Domestic Violence Sentencing Hearing
Introduction: In Colorado domestic violence cases – different rules apply to the sentencing and plea bargaining of these cases. To fully understand the importance of these rules and procedures to making a decision as to whether or not to “take” a plea bargain – a thorough knowledge of this area is necessary. This web page is intended to address these issues.
One of the purposes of the criminal code in relation to sentencing is “to punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense.”
Other conditions for the code include providing “fair warning” of sentences imposed, the deterrent nature of the sentences for similar offenses, and the promotion of rehabilitation of offenders. The Court is mandated to follow these principles in sentencing the individual and is granted wide latitude and discretion when making the sentencing decision.
The Court is mandated also to “tailor the sentence to the offender” and to consider the defendant’s past criminal record, potential for rehabilitation, and the protection of the community.
The Court must balance the legislative policies of deterrence, punishment, rehabilitation, and protection of the community.
Factors the Court considers in the “balancing act” of sentencing – include:
The Gravity of the offense;
The Defendant’s criminal history;
The Degree of danger the defendant poses to the community or victims;
The Likelihood of future criminality;
The Prospects for rehabilitation of the offender;
The Character of the defendant;
Whether the sentence will depreciate the seriousness of the offense if a less drastic option for sentencing was chosen;
The Impact of the sentence on the community;
The Goals of punishment and deterrence;
The Age of the defendant; and
The Overall protection of society.
When issuing the sentence the Court is also mandated to make an adequate record supporting the reasons for the sentence. The sentencing statement does not have to be a long recitation of the reasons but the Court must make a sufficient record to support the sentence.
Colorado Domestic Violence Sentencing Considerations – There Is “No Plea Bargaining Away” the Domestic Violence Designation “Tag”
This is one area where Colorado Domestic Violence sentencing is VERY different than other cases.
The Court is prohibited from accepting a plea of guilty or nolo contendere with a non-domestic violence designation when the underlying factual basis for the crime involves an act of domestic violence unless the district attorney provides, on the record, a good faith representation to the court that there is not a prima facie case to meet the definition of an intimate relationship between the alleged victim and the defendant.
The statute provides guidance to the court regarding the record that must be made by the district attorney and the findings that the court must make at the time of the acceptance of the plea.
The prosecuting attorney’s record and the court’s findings must specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons that is not possible.
The Court is not permitted to accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3 (1)
* ….unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense. C.R.S. § 16-21-103. C.R.S. § 18-6-800.3(1). C.R.S. § 18-6-801(a).
In addition to any sentence that is imposed, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3(1),
….or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board.
The court may also order treatment prior to sentencing if the treatment evaluation would help the court determine proper sentencing.
Considerations the Court applies when determining an appropriate sentence:
The length of the relationship;
The lethality factors involved in the relationship;
The offender’s access to weapons;
The alleged vulnerability of the victim;
The number of children as well as the age and vulnerability of the children; and substance abuse issues.
The Court can also consider these additional factors:
The Defendant’s past attempts at therapy;
Domestic violence treatment;
Compliance with court orders; and
Compliance with other community based sentences.
The defendant is required to be present for sentencing. It is strongly recommended that when the defendant exercises his or her right to allocution NOT to blame others or to minimize his or her conduct, and SHOULD accept responsibility for his or her behavior. It is the lawyer’s job, in my opinion, to explain issues that mitigate or otherwise explain how and why the defendant finds himself in this difficulty.
Types of Sentences in Colorado Domestic Violence Cases C.R.S. § 16-11-102. C.R.S. § 16-11-102.
Generally, there are four types of sentences that the Court can give an offender:
1. Deferred sentencing (only with consent of the prosecution and not discussed in this section);
3. Community corrections; or
The pre-sentence investigation report (PSIR) can and does often provide the Court with information to assist the Court in assessing whether the plea agreement is appropriate.
The PSIR will have a victim impact statement which may be of particular use by the Court for domestic violence cases. Even the “absence” of a victim in a domestic violence case is something for the Court to consider.
Probation C.R.S. § 18-6-801(5). C.R.S. § 18-1.3-201. C.R.S. § 18-1.3- 201(2.5)(a-b).
The Court is required to consider the safety of the victim and the victim’s children before granting a domestic violence offender probation.
Not all offenders are eligible for probation and there are particular restrictions that apply. Non-violent offenders are eligible to apply for probation.
Defendants who have been convicted of two or more felonies may ineligible for probation unless the District Attorney specifically waives probation ineligibility. Whether the ineligibility requirement applies to a defendant will depend on the crime for which the Defendant was convicted or will be convicted.
The Court cannot circumvent the probation statute by issuing a prison sentence and then suspending the prison sentence and placing an offender on probation. C.R.S. § 18-1.3-203. C.R.S. § 18-1.3-204.
Defendants application for probation:
C.R.S. §18-1.3-203 sets out the criteria for the Court to consider when granting a defendant’s application for probation. General conditions of probation that the Court can order is set out in C.R.S. §18-1.3-204.
Reviewing the criteria and requirements of probation is useful in assisting the court in issuing a sentence that holds an offender accountable, seeks to protect the victim and the victim’s children, as well as serve the overall community desire for safety.
Granting an offender probation – in the view of the Judge – should not unduly depreciate the nature of the offense that was committed.
The Court carefully weighs all the aggravating and mitigating factors when making a sentencing determination.
Supervised probation is usually considered important for domestic violence offenders – even though there is no statutory requirement.
The Court will consider the positive and negative aspects of placing the offender on unsupervised probation. Regular contact with a probation officer can and oftentimes does act as a valuable resource not only for the offender and the victim but also for the Court.
At probation revocation proceedings, the Court takes the input from a probation officer in making the sentencing decision – and that information – if it is positive for the Defendant – can assist the Court in fashioning an appropriate remedy for the violation of the Court’s orders.
The Length of Probation in Colorado Domestic Violence Cases C.R.S. § 18-1.3-202(1).
The length of a probationary sentence is within the discretion of the court and the court can order any reasonable conditions that the court deems appropriate for the defendant.
Misdemeanor Probation: May not exceed 5 years
Felony Probation: May exceed the maximum period of incarceration for the classification of the offense
The length of probation is not controlled by the minimum or maximum terms of imprisonment. The Court has the statutory authority to impose a sentence to probation that exceeds to maximum length of possible imprisonment.
The Standard Conditions of Probation – C.R.S. § 18-1.3-204.
The Court MUST order the following conditions:
1. The defendant not commit another offense for the length of the court’s sentence
2. The defendant pays restitution
3. The defendant complies with any court order regarding substance abuse testing and treatment
4. The defendant complies with any court orders regarding treatment of sex offenders
5. The defendant shall not harass, molest, intimidate, retaliate against, or tamper with the victim or any prosecution witness to the crime
6. If on probation for a felony, the defendant is required to complete a written waiver of extradition and an agreement to be held with no bond while pending extradition to Colorado C.R.S. § 18-1.3-204(1), (1.5). C.R.S. § 18-1.3-204 (2)(b)(IV)(A-C).
Where the underlying factual basis involved Domestic Violence, the Court must also order as a Condition of Probation that the Defendant:
1. Comply with existing court orders regarding family support
2. Comply with existing court orders for proceedings determining paternity, custody, allocation of decision-making responsibility, parenting time, or support
3. Comply with the terms of the protection order in effect during the period of probation
4. Refrain from possessing a firearm, destructive device, or other dangerous weapon unless the defendant receives written permission from the probation officer or court. This will not be granted unless:
a. It is required by the defendant’s employment; and
b. The court finds that the defendant’s possession of the weapon does not endanger the victim or the victim’s children; and
c. The weapon is stored away from the home and the yard surrounding the home.
The probation statute also indicates that if the Court orders specific types of treatment (for example: alcohol and drug abuse treatment, sex offender treatment, domestic violence treatment), the treatment must be completed through a certified treatment provider.
Jail as a Condition of Probation in Colorado Probation Violation Cases
There are statutory limitations on the amount of jail that the Court can order a defendant to serve as a condition of the probation sentence issued by the Court. C.R.S. §18-1.3-202 provides for the limits on the length of jail as a condition of probation:
Felony Probation: Aggregate length cannot exceed 90 days of straight time, and aggregate length cannot exceed 2 years of work release. C.R.S. § 18-6-801(4). See also C.R.S. § 18-1.3-106(11).
Misdemeanor Probation: Aggregate length cannot exceed 60 days of straight time, and aggregate length cannot exceed 2 years or work release or the term to which a defendant could be sentenced for the offense committed, whichever is less.
A domestic violence offender is ineligible for home detention in the home of the victim.
Community Corrections Sentences In Colorado Probation Violation Cases C.R.S. §18-1.3-301
Defendants may be sentenced to a Community Corrections program.
While Community Corrections is often thought of as a “prison alternative” the Court cannot order a defendant to serve a mandatory prison sentence at a community corrections facility. For example, a defendant convicted of a crime of violence cannot serve that sentence in a community corrections facility. While the community corrections facility may be used as a condition of parole or transition from prison to parole, the initial sentence to the court cannot be served at community corrections.
The Court can sentence a defendant to a term at community corrections either as a direct sentence or as a condition of probation. A placement at community corrections, however, is completely within the discretion of the Community Corrections board and the Court cannot force a facility to accept an offender without the approval of the Community Corrections Board.
Requirements for Defendant:
If a defendant is placed at community corrections, the facility will impose requirements on the defendant within the rules and regulations established by the program and accepted by the local unit of government. Some of those conditions include:
Compliance with support obligations toward the defendant’s family, no contact orders;
Domestic violence treatment;
Substance abuse treatment; and
Many of the same conditions required if the defendant had been placed on probation.
The Court can order specific conditions such as:
Substance abuse treatment;
Mental health treatment;
Domestic violence treatment;
Any other reasonable rehabilitative measures or classes that an offender is required to complete while placed at the community corrections facility.
Termination from Community Corrections:
If a defendant is terminated from a community corrections placement, the Court should view the termination seriously and not merely that it is a “technical” violation. Community Corrections was developed to provide the sentencing court with a broader range of sentencing alternatives.
Community corrections is considered a more severe sentence than that of probation but not as severe as a prison sentence. Violations of any kind that result in an administrative review and decision by the board to terminate an offender from the program should be a clear indication to the Court that the defendant will fail in a less structured setting of probation.
Upon termination from Community Corrections the Court has the discretion to sentence an offender to any sentence that might have originally been imposed and can impose a longer sentence in prison.
Prison Sentences In Colorado Domestic Violence Felony Cases
Prison is considered a “drastic” sentence but behavior of a defendant and the crime committed by the offender may warrant a prison sentence.
The record must support the Court’s reasoning and determination regarding the sentence imposed.
The record is required to have sound reasons for a particular sentence from the Court when there is the imposition of the maximum or near-maximum sentence;
The record must state sufficient facts to support the trial court’s sentence.
The Court must sentence a defendant to a definite sentence within the presumptive range for the offense. The Court should also review the case for extraordinary aggravating and/or mitigating factors.
Extraordinary aggravating factors, however, must comply with the decisions of Blakely v. Washington, and Apprendi v. New Jersey. That means that a defendant is entitled to a jury finding on the existence of some types of “aggravating sentencing factors.”
A defendant can waive his right to this jury finding and the court can make the determination or a defendant can stipulate to the existence of the fact.
If a defendant agrees to waive the right to a jury trial finding on the existence of facts that may be used as aggravating sentence factors, the Court must make sure that the waiver was a knowing, voluntary, and intelligent waiver of the right to a jury trial finding.
There are four facts that the Court can rely on when issuing an aggravated sentence:
1. Facts found by the jury beyond a reasonable doubt
2. Facts admitted by the defendant
3. Facts found by the court after the defendant stipulates to the court making the fact-finding for the purposes of sentencing
4. Facts of prior convictions
The first three facts above are considered “Blakely compliant” facts and the fourth is a “Blakely exempt” fact.
Prior convictions and juvenile adjudications are considered “Blakely exempt” and the Court can rely on these convictions and/or adjudications to impose a sentence beyond the presumptive range of sentencing.
“Prior” convictions also include “subsequent” convictions and those “subsequent” convictions may be used by the Court to aggravate the sentence.
A defendant may stipulate to the aggravated range of sentencing as part of the plea agreement and can stipulate that facts exist to support the aggravated sentence.
If a defendant admits to facts that are the elements of one charge and has received a proper advisement pursuant to Crim. P. Rule 11 and is advised of the aggravated range of possible penalties for both charges, those facts admitted by the defendant can be used to aggravate a sentence for a second charge.
Generally, the Court can impose sentences to run concurrently or consecutively.
The Court has the discretion to impose consecutive or concurrent sentences if the charges are not supported by identical evidence.
The decisions of Apprendi and Blakely do not require that the imposition of consecutive or consecutive sentences be determined by a jury.
There are, however, circumstances where the Court is required to order consecutive sentences.
A defendant who has been convicted of a sexual related offense subject to indeterminate sentencing and who is also convicted of one or more crimes arising out of the same criminal episode as the sex offense, is required to serve the offenses for the other crimes consecutively to the sex offense.
Consecutive and concurrent sentencing for crimes of violence will depend on the facts of the case in light of the statutory language of C.R.S. § 18-1.3-406(1)(a). The Court looks at merger issues, evidence used to support the convictions, as well as other factors.
The Impact of Mandatory Protection Orders in Criminal Cases C.R.S. § 18-1-1001(1). C.R.S. § 18-1-1001 (8)(b) Upon Colorado Domestic Violence Sentencing.
The legislature determined that in all criminal cases a mandatory protection order shall issue and remain in effect for the length of the case.
The order is designed to order a defendant to refrain from “harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.”
The order is particularly important in domestic violence cases and failure of the defendant to comply with the order will lead to possible violation of protection order charges being filed. The Court takes violations of this order, or any protection order, as a very serious matter.
The mandatory protection order issued pursuant to C.R.S. §18-1-1001 must remain in effect from the time a defendant is advised of his rights to the final disposition of the case. “Final disposition” is defined in the statute as “until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence.
Any defendant sentenced to probation or incarceration shall be deemed to have completed his or her sentence upon discharge from probation or incarceration.” The statute provides for the ability of the Court to modify the order, but particular filing and notice requirements must be met before the order is modified by the Court.
The mandatory protection order issued pursuant to C.R.S. § 18-1-1001 is also a mandatory condition of any probationary sentence unless the Court issues written findings that such order is not necessary as a condition of probation.
However, the modification procedures set forth in C.R.S. § 18-1- 1001 remain in effect.
Evaluation and Treatment Requirements C.R.S. § 18-6-801.
For persons convicted of crimes for which the underlying factual basis involves domestic violence:
The Court is required to order a defendant to complete treatment evaluation with a certified provider.
The evaluation must conform to the standards set out in the by the domestic violence management treatment board.
The Court shall order the defendant to complete the treatment program recommended in the evaluation. C.R.S. § 18-6-801(2). C.R.S. § 18-6-801(1)(c); C.R.S. § 18-1.3-204(2)(a)(XV).
In cases where the evaluator makes a recommendation that a treatment program would be inappropriate, the defendant is required to return to the Court.
The Court shall then make findings as to alternative dispositions in lieu of the domestic violence treatment.
The only exception to the requirement that the Court shall order a defendant to have the evaluation and treatment is for defendants who are sentenced to the Department of Corrections.
The Court can always order domestic violence evaluation and treatment even if the defendant is not convicted of a crime involving domestic violence. If the pre-sentence investigation report or other information is presented to the Court and the Court is concerned there is nothing in the probation statute or sentencing statutes that forbids the Court from ordering a defendant to comply with an evaluation and treatment.
Not all providers are certified by the domestic violence management treatment board. The Court can only accept the evaluations and recommendations from board certified providers.
The Court “shall not allow” a defendant to seek treatment to any person or entity who has not been approved by the domestic violence treatment management board.
On-line or correspondence classes have not been approved by the Colorado Domestic Violence Offender Management Board as they do not meet the requirement of court ordered domestic violence offender treatment.
Restitution C.R.S. § 18-1.3-603. C.R.S. § 24-4.1-107.5.
All sentences imposed by the Court shall include payment of restitution.
The statutes set forth the legislative intent for requiring an offender to pay restitution as part of the sentence as well as the types of losses that are included in “restitution.” The Victim’s Compensation Fund is included as a “victim” and is entitled to reimbursement for costs expended by the fund on behalf of the victim.
Materials in the Victim’s Compensation file are considered confidential. The materials in that file are not discoverable unless the Court conducts an in camera review of the file.
Domestic Violence Treatment and Probation
Domestic Violence Offender Treatment Related Statutes C.R.S. § 16-11.8-103. et. al.; C.R.S § 16-11.8-101. C.R.S. § 16-11.8-102. C.R.S. § 18-6-801. C.R.S. § 18-6-801.5
Applies to domestic violence offenders who:
…have been convicted of, pled guilty to, or received a deferred judgment or prosecution for any crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), C.R.S.,
...who are subject to the supervision of the criminal justice system.
“Treatment” typically includes means counseling, monitoring, and supervision of domestic violence offender
Treatment evaluation means determination of treatment amenability as recommended by a domestic violence evaluator approved by the DVOMB.
Sentencing: Treatment and Evaluation
Domestic violence cases: requires court to impose treatment evaluation and program in addition to any other sentence:
If evaluator determines treatment program is not appropriate for this offender, then offender is referred back to court for alternative disposition.
Court may order domestic violence evaluation prior to sentencing if such evaluation would assist the court.
Court may order domestic violence treatment in any appropriate case.
Treatment/evaluation requirement does not apply to any offender sentenced to Department of Corrections.
Standards for Treatment Developed by the Domestic Violence Offender Management Board
Offender Evaluations (Section 4.0 of the Standards)
The Evaluation shall be conducted to identify the following factors:
Risk of re-offense and/or further abuse;
Offender’s criminogenic needs;
Offender’s responsivity to treatment; and
Other treatment issues as identified in Section 4.05
These factors shall assist in determining recommendations regarding offender treatment.
Evaluation(s) shall result in an initial offender treatment plan with the understanding that assessment is an ongoing process, which may necessitate changes to the plan.
Evaluation(s) shall be used to develop baseline measures in order to assess offender gain or deterioration with regard to criminogenic need and risk of reoffense.
The Standards do not preclude an approved provider from performing an evaluation as well as the treatment for the same offender.
The criminal justice system, not the approved provider, is responsible for making legal decisions regarding guilt or innocence, pleas, convictions, and sentencing. Therefore, evaluations are not be completed prior to a guilty plea or a finding of guilt.
The Evaluation results in an initial offender treatment plan with the understanding that assessment is an ongoing process, which may necessitate changes to the plan.
The Evaluation also results in the direct initial placement of the offender into the appropriate level and intensity of treatment as identified in Section 5.0 of the Standards. See my Page on the Colorado Domestic Violence Treatment Standards.
The pre-sentence evaluation is not a required evaluation for offenders. If required by the court, it must be performed by approved provider.
The post-sentence intake evaluation is a required component of the offender’s intake process and is conducted on each offender by an approved provider. Once the post-sentence evaluation is completed, the approved provider is mandated to obtain the consensus of a Multi-disciplinary Treatment Team (MTT)