Ruling applies to any defendant sentenced to prison followed by probation term
By David Migoya
The Denver Post
DENVER (AP) — The Colorado Supreme Court has ruled the sentences of hundreds - perhaps thousands - of criminal defendants serving time in Colorado prisons, some for violent sexual crimes, are illegal, giving many of them a renewed shot at freedom.
The court last month stunned the state’s judicial system when it ruled that defendants cannot be sentenced to both prison and probation for charges in the same case, deeming the sentences illegal and unenforceable.
The ruling applies to any defendant sentenced to prison followed by a probation term, and gives each the right to force prosecutors to start over. Those already out of prison theoretically could request their plea deal be overturned, legal experts said.
“This is going to result in a ton of litigation,” defense attorney Scott Robinson said. “This appears clearly to go against what many defense lawyers and prosecutors have assumed to be true for years, that different types of sentences can be imposed on different charges in the same case.”
Prosecutors in at least four judicial jurisdictions, including Denver, have relied on the dual sentence as part of the plea agreement process, mostly for sex crimes where a defendant could be sentenced to an indeterminant number of years in prison and authorities wanted to ensure lifetime supervision should the defendant be released.
Several district attorneys interviewed for this story called the decision significant, and at least one worried how far and wide the impact would be felt.
“My biggest concerns are that we can no longer do this and what do we do with those we’ve already done it to? What if they’re already in prison? Are they all released?” asked Mesa County District Attorney Daniel Rubinstein. “If the sentence is invalidated, we could be back at square one, or worse.”
The high court’s decision is based on a 2014 Boulder County case in which a jury found Frederick Allman, 67, guilty of various theft and forgery crimes. He was sentenced to 15 years in prison and a 10-year probation term that was to be concurrent with the parole he’d serve upon his release.
The Supreme Court, in a 7-0 decision, said the 2015 sentence by District Judge Andrew Macdonald was illegal.
“The determination that probation is an appropriate sentence for a defendant necessarily requires a concordant determination that imprisonment is not appropriate,” Justice Brian Boatright wrote in the court’s opinion issued Sept. 23. “The probation statute gives courts guidance and discretion in choosing to grant probation. However, it requires a choice between prison and probation. . The legislature intended to allow courts to choose only one or the other. Probation is an alternative to prison.”
Attorney General Phil Weiser’s office has until Oct. 28 to file a petition for the court to re-hear the case.
The court’s decision primarily affects defendants who signed plea agreements, a number that could reach into the thousands as 95% of all criminal cases are settled with plea deals. Defendants convicted by a jury, as was Allman, would simply be resentenced since the jury verdict remains unchanged.
Prosecutors explain that a plea agreement would be handled differently than a guilty verdict because a defendant agreed to a specific outcome in exchange for the plea. Because the sentence is deemed illegal, defendants can rescind their original agreement. “If the sentence is invalidated, we would go back to reaffirm the plea agreement, or even start over,” Rubinstein said.
The Colorado District Attorney’s Council said a majority of the state’s 22 judicial districts won’t be affected, but at least four of them - 2nd (Denver), 18th (Arapahoe, Douglas, Elbert, Lincoln), 20th (Boulder) and 21st (Mesa) - have used sentences that fit those under scrutiny.
Attorney Tom Carberry, who won an earlier appeal for a client with a similar illegal sentence, said he’s uncovered at least 56 other cases with illegal sentences, the majority of them sexual assaults. Three others are drug cases and two involve economic crimes. All are in Denver.
“Each of these defendants has the right to a lawyer appointed at state expense,” Carberry said of the breath of the Supreme Court decision. “That will run into the millions” of dollars.
Denver DA Beth McCann did not elaborate on the scope of the problem in her jurisdiction, but said she’d rather not have to find out.
“We are very supportive of the Colorado attorney general’s plan to ask the court to reconsider its decision,” McCann said in an emailed statement. “We are concerned that if the decision stands, it will significantly impact many cases that have already been resolved.”
Other prosecutors are also trying to determine what the decision will mean for them.
“This decision will have a significant impact, for offenders and victims,” Boulder District Attorney Michael Dougherty said in an emailed statement to The Post. “A defendant could come back to court seeking a hearing to correct an illegal sentence, or file motions alleging ineffective assistance of counsel. For survivors of sexual assault, this decision will be particularly harmful because they thought the case was over and the outcome certain.”
Weiser’s office argued the state’s side of the Allman case, saying judges are not restricted when sentencing defendants, especially if they feel it is in the public’s interest that a longer period of rehabilitation is merited than simply mandatory parole.
In Allman’s case, which involved fleecing an elderly man of more than $50,000 via phony credit cards and bank accounts, “it appears that the trial court here wanted Allman supervised for a long period of time due to the restitution owed,” Boatright wrote.
In the 18th Judicial District, hundreds of cases could be impacted, many of them involving children, some going back years, according to Chief Deputy District Attorney Chris Gallo, who heads the special victims unit that handles about 500 cases a year.
“For several years now, we’ve been pursuing resolutions where there were prison and probation components, trying to balance a punishment aspect and a longer supervisory aspect to the sentence,” Gallo said. “I can’t even fathom the ultimate outcome of this decision, how many could be released, or its impact. But more than half of our cases would be affected.”
Gallo said “easily more than a dozen” pending cases with signed plea agreements awaiting sentencing will have to be restructured.
Mesa County’s Rubinstein said although only about a half-dozen cases in his jurisdiction are affected, they are significant.
“The pleas would be invalidated, and it could be that a new offer is rejected,” Rubinstein said, noting prosecutors cannot change the terms of the agreement without beginning the case anew. “How does that work for a guy with five years in prison already.”
Judges could theoretically say they’re not bound by the plea agreement and a defendant could take his chances with a new sentence, Rubinstein said.
“(A judge) might think there’s been substantial time (in prison) and a judge won’t want to load up with additional punishment,” he said, “and the defendants might say they’ll take their chances with the judge.”
A good defense attorney, however, could find exploitable cracks, he said.
“They’ll look to see if the case is, perhaps, worse,” Rubinstein said. “Witnesses move, they die, they don’t wish to participate. The chances of a trial could be better from their viewpoint.”
