Violent crime charges are no joke – in the state of Colorado, if you are convicted of a crime which is designated as a “crime of violence,” then you are facing a mandatory enhanced prison sentence of up to double the maximum penalty for the crime charged.
What is a “Crime of Violence” (COV)?
According to CRS 18-1.3-406 (2)(a)(I) & (b)(1), a “Crime of Violence” is any crime which was:
…committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person:
(A) Used, or possessed and threatened the use of, a deadly weapon; or
(B) Caused serious bodily injury or death to any other person except another participant.
(b)(I) “Crime of violence” also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim.
Using this definition, the Colorado Courts have determined that the following crimes are all considered COV’s:
- Any crime against an at-risk adult or at-risk juvenile;
- First or second degree assault;
- A sexual offense in which the defendant caused bodily injury to the victim (see (b)(1) above)
- Aggravated robbery;
- First degree arson;
- First degree burglary;
- Criminal extortion; or
- First or second degree unlawful termination of pregnancy.
Penalties of a COV – Mandatory Sentencing
Outside exceptional cases, COVs carry mandatory prison sentences. This is often immoral and unfair on behalf of prosecutors – after all, the purpose of elected judges is to determine appropriate sentencing on an individual case-by-case basis. Mandatory sentences remove the court’s discretion, and fail to consider the motives or underlying circumstances of a particular defendant.
In addition, sentencing for POVs elevates the minimum sentence to at least the midpoint of the “presumptive sentence” (the range of prison time recommended under Colorado sentencing guidelines CRS 18-1.3-401(1)(a)) for the offense charged. For instance, if you are convicted of a Class 3 Felony, which carries a presumptive sentence of four to 12 years, the judge would have no choice but to sentence you to a minimum 8 years in prison (the midpoint between 4-12).
While judges are restricted by minimums, they are permitted to increase the sentence up to double the maximum presumptive sentence. Using the same example of a Class 3 felony (PS 4 to 12 years), this means you now an enhanced sentence of 8 to 24 years in prison. And if you are convicted of multiple felony counts, the counts are “stacked” – meaning they must be served consecutively (one after the other), rather than concurrently (at the same time).
However, there is an exception. If, within 90 days after a defendant is taken into custody, the judge determines that the sentence is too harsh, and if the case is ‘exceptional and involves unusual and extenuating circumstances’ may submit to the sentencing court and, upon approval, modify the sentence. Even in the case of a modification, the defendant may be released no earlier than one hundred nineteen days after their placement in custody. In some cases, this modification can even include probation.
Clearly, violent crime charges are highly serious, and carry serious penalties – if you are facing charges in Denver, you need a relentless criminal defense to fight on your behalf.
Fighting COV Charges and Preliminary Hearings
A truly experienced Denver criminal defense attorney, Casey Krizman, will be able to employ a number of defense strategies to help get the charges against you either reduced or thrown out completely. Some of these potential defenses include:
- Lack of intent to do harm (accident, mistake, etc)
- Duress (forced to do harm by another party)
- Justification (choice of evils – used force to protect others from immediate injury)
- Acting in public duty
One of the most useful tools available to defendants and defense attorneys for getting COV charges reduced or dropped are preliminary hearings. These are pre-trial proceedings that occur in a lower court. In these hearings, the prosecution has the burden to demonstrate that there is probable cause that both a crime was committed, and that the defendant was the person who committed it, for every charge alleged. Probable cause means that a rational person, when presented the evidence of a crime, would reasonably believe that the alleged did in fact commit that crime.
While it is certainly no good luck to encounter COV charges, fortunately you are automatically eligible for a preliminary hearing. In general, preliminary hearings are only available for class 1, 2, and 3 felonies – but an exception exists which also grants defendants convicted of class 4, 5, or 6 crimes of violence the right to a PH.
The preliminary hearing serves as an important safeguard for the rights of criminal defendants. It gives the defendant and their counsel an opportunity to expose criminal charges as baseless before large amounts of resources are devoted to litigating the case. There are two outcomes: either the prosecution shows probable cause for some or all charges and the case is transferred to the higher court (with potentially fewer charges than before), or they fail and the case is dismissed entirely.
Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Call him today at 720.819.7317.