When searching for a criminal defense attorney, most people focus on the cost and advertised experience in “handling,” “trying,” and “winning” certain cases – whether the case is a DUI, drug possession, sex assault on a child, internet sex crimes, child abuse, domestic violence, and fraud or theft cases.
But what do attorneys mean when they say they have “handled,” “tried,” or “won” lots of cases? And if the attorney means actually going to trial, is that attorney’s trial experience all you should ask about when you hire an attorney?
The answer is: No. Trial experience is definitely important. In fact, attorneys Douglas T. Cohen, a former Colorado prosecutor, and Todd Narum, a longtime defense attorney, have tried over a hundred cases to verdict. They are at home in a courtroom and are ready to go to bat for you.
However, a truly effective attorney who will fight for you and try to get the best outcome well before trial, must be an expert in plea bargaining and sentencing guidelines as well. Doug and Todd make knowing sentencing guidelines for different crimes a major focus of their practice – especially when it comes to specialized sentencing in cases like sex offenses, internet crimes, DUIs and drug offenses.
Call attorneys Doug or Todd at Peak Legal Services LLC at (720) 445-9779 or email them at [email protected] to learn more about plea bargaining and sentencing or to discuss your case.
As attorneys with decades of experience in criminal law, Doug and Todd encourage you to also ask attorneys what their experience and plan is for plea bargaining and sentencing. Unlike what you see on Law & Order, about 95% of all state charges and 97% of all federal charges are resolved by plea deals and sentencing without trials. Therefore, “winning” a case usually has more to do with your lawyer knowing how to negotiate the right plea within a fair and reasonable sentencing range. That means your attorney needs to have a deep understanding of the sentencing rules for your specific case.
In your search for an attorney, you should ask attorney about their strategy, plan and knowledge about plea bargaining and sentencing relevant to your particular charges, as well as if an attorney’s goals and expectations for your case match your own.
For example, if you have absolutely no desire to engage in plea negotiations regardless of the risk you face going to trial, then an attorney’s focus should be on strategy and cost of going to pre-trial motions and trial. But most often you will want to consider a plea bargain for valid reasons, such as:
- You are accepting some responsibility but think the prosecutor overcharged you;
- You are unwilling to take the risk of going to trial;
- The financial and emotional stress of trial is too great for you and your loved ones;
- You don’t want already-damaging allegations against you, even if not true, to possibly become even more public due to a trial.
If the above examples are what you are going through, then an attorney’s focus should be explaining the sentencing laws relevant to your case and what the possible and probable plea bargaining and sentencing scenarios versus going to trial.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-977 or email them at [email protected] to learn more about criminal cases and sentencing or to discuss your case.
Likely Sentencing Scenarios
Here are some examples of likely sentencing scenarios depending on your criminal history, personal history, type of charges and other factors:
- DUI/DWAI sentencing:
- Depends on your past criminal history and, in particular, your DUI and driving record.
- For a first offense, you likely will get probation if there is no accident.
- A second, third, or fourth offense will result in mandatory jail time.
- If you are charged with felony DUI, Vehicular Homicide or Leaving the Scene of a fatal accident, you may face prison time.
- Points that can result in license suspensions and restrictions through the DMV.
- Through pre-trial investigation, plea bargaining, and taking advance steps at rehabilitation, you may be able to reduce or mitigate these penalties.
- Sex offense sentencing:
- Can involve harsh and potentially lifetime sentences called “indeterminate sentences.”
- There also are serious restrictions on your freedom even if you get probation.
- As a veteran sex crimes and sex assault on a child prosecutor, attorney Douglas T. Cohen knows these sentencing guidelines inside and out.
- Through pre-trial investigations, consulting with experts and forensic evaluators, and taking certain proactive measures, you may be able to avoid lifetime sentencing through plea bargaining.
- Drug sentencing:
- New changes in drug laws are geared toward distinguishing even more than before on possession v. distribution and the ability to seal your record.
- Some offenses, called “wobblers” allow you to reduce a felony to a misdemeanor by completing probationary terms.
- Under a new Colorado law effective starting in 2020, many possession charges are now misdemeanors, not felonies.
- Negotiations with the prosecutor during plea bargaining, including presenting mitigation about your life, your drug use v. possession as opposed to any intent to sell, and your efforts to seek treatment, can result in a reduction of charges.
- Mental health issues often go hand and hand with drug use and possession, and some counties have special courts for veterans, mental health, and drug abusers. Bringing this information to light early, rather than hiding it from the prosecutor, may help in plea bargaining and in getting a reduced sentence.
- Crime of Violence sentencing:
- For certain crimes deemed violent – for example, due serious injury or death, or use of a weapon – you may face mandatory and extended prison sentences in cases in which you are alleged to have used a weapon or caused serious injury. In these cases, it can be advantageous to engage in steps that convince the prosecutor to offer a plea to a non-crime of violence.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about criminal cases and sentencing or to discuss your case.
More Sentencing Details:
Most people are familiar with the distinction between a felony charge and a misdemeanor charge. In summary, felony charges carry much greater consequences both in sentencing as well as impact on your life than misdemeanor charges. In addition to facing prison time, convicted felons also are subject to discrimination in finding employment, housing, and getting loans. In some states, felons lose the right to vote.
Beyond the felony/misdemeanor divide, there are different classes within these and other offenses including drug and traffic offenses.
Levels of Felonies:
In Colorado, there are six levels of felony charges, three levels of misdemeanor charges, four levels of felony drug charges, and two levels of drug misdemeanor charges. Typically, the lower the number, the more serious the offense, and consequently, the more severe the penalty. For example, having a drug felony (DF) charge reduced from a DF2 to a DF3 can cut potential sentencing possibilities in half and fines by one-third.
“Wobbler” Drug Crimes:
Certain drug felony charges that involve only possession now can be reduced to drug misdemeanors once you successfully complete probation or community corrections and a treatment plan mandated by the court. However, any drug felony with aggravating factors will not be eligible to wobble.
“Defelonizing” Single-Use Drug Possession in 2019
Pursuant to HB19-1263, which takes effect in early 2020, possession of small amounts (4 grams or less) of schedule I and schedule II drugs will now be charged as misdemeanors instead of felony crimes. However, it is important to note that a fourth or subsequent offense of possession of small amounts of drugs such as heroin, cocaine, or fentanyl will be charged as a level 4 felony.
The act also makes possession of more than 6 ounces of marijuana a level 1 misdemeanor, which may be punished by a sentence of up to 180 days in the county jail or 2 years probation, with up to 180 days in jail as a condition of, or for a violation of, probation.
For a third or subsequent offense, a person may be sentenced to up to 364 days in jail and up to $1,000 in fines.
The possession of more than 3 ounces of marijuana concentrate is now a level 2 drug misdemeanor. Level 2 drug misdemeanors include: unlawful use of a controlled substance, possession of marijuana or marijuana concentrate, unlawful use or possession of certain synthetic controlled substances, or abusing toxic vapors. Conviction of a level 2 drug misdemeanor may be punished by a sentence of up to 120 days in the county jail or one year probation. For a third or subsequent offense, a person may be sentenced to up to 180 days in jail and face a maximum $500 fine.
It is important to note that dealers, or people in possession of larger amounts of schedule I and II drugs, will still be facing felony charges.
It is essential to hire an attorney who understands the nuances of plea bargaining and sentencing in drug cases, including which drug crimes are eligible for the “wobbler,” how to plead down a charge so that it may become wobbler-eligible, and ultimately, how to help you avoid a felony conviction.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about your drug case and about “wobbler” eligibility.
Specific Crimes, Sentencing Schemes and Ranges:
It is very important, in each and every case, no matter how serious or minor the charge, that your attorney knows and explains sentencing ranges — and the impact on your freedom and future — before you accept a plea deal.
Sex offenses and “indeterminate” (lifetime) sentencing:
Many attorneys choose not to take on sex offense cases due to their nature and complexity. But at Peak Legal Services, we specialize in defending clients accused of sex assaults and other sex offenses. Attorney Douglas T. Cohen served two terms as a sex crimes prosecutor in one of Colorado’s “SVU” Units. At Peak Legal, have extensive experience and knowledge of sentencing and plea bargaining in all types of sex crime cases involving adults and children.
People convicted of sex offenses can face “indeterminate” sentences, meaning the sentence has a minimum term. But the ultimate release date from prison or probation determined by the Department of Corrections or State Probation, not by the judge.
Most convictions for other crimes in Colorado result in “determinate” sentencing. This means a defendant faces a set range of years on probation or in prison. For example, for a Class 4 Felony theft case, a defendant can face between a minimum of 2 to a maximum of six years in prison or a set number of years on probation.
But on certain Class 4 sex offenses, such as Sex Assault on a Child (age 15 to 18), by One in a Position of Trust, a defendant faces a minimum of two years up to life in prison. That sentence can be aggravated, with mandatory prison, if the prosecution charges “pattern of abuse.” Pattern is not what it sounds like; it actually just means “more than one time.” In such cases, the judge is only allowed to set the minimum sentencing range. It is the state Department of Corrections that determines a defendant’s release date – so that could end up being a lifetime sentence.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about plea bargaining and sentencing in sex cases or to discuss your case.
Some felony sex crimes and sex offenses that carry indeterminate sentencing include:
- Sexual Assault;
- Unlawful Sexual Contact – with Force;
- Sexual Assault on a child (also may be charged as “Pattern”);
- Sexual Assault on a Child by a Person in a Position of Trust (also may be charged as “Pattern”);
- Aggravated Sexual Assault on a Client by a Psychotherapist;
- Incest and Aggravated incest;
- Patronizing a Prostituted Child;
- Internet Luring of a Child;
- Internet Sexual Exploitation of a Child;
- Attempt, conspiracy, or solicitation to commit any of these offenses if such attempt, conspiracy, or solicitation would constitute a class 2, 3, or 4 felony.
Additionally, most sex offense convictions require regular registration as a sex offender with the law enforcement agency where you live (i.e., police department). These convictions, even for misdemeanors, often require lengthy registration periods of a minimum of 10 years from the date you finish your sentence. In higher-level felony sex offense convictions, the requirement increases to up to 20 years or more. For example, in indeterminate sentencing cases such as Sexual Assault on a Child, lifetime sex offender registration is required. There is no ability for you to be removed from the sex offender registry.
The sex offense charges that require registration include:
- Any sex offense subject to indeterminate sentencing;
- Unlawful Sexual Contact;
- Sexual Assault on a Client by a Psychotherapist;
- Human Trafficking of a Minor for Sexual Servitude;
- Sexual Exploitation of Children;
- Procurement of a Child for Sexual Exploitation;
- Indecent Exposure;
- Soliciting for Child Prostitution;
- Pandering of a Child; Keeping a Place of Child Prostitution;
- Pimping of a Child;
- Inducement of Child for Prostitution;
- Engaging in Sexual Conduct in a Correctional Institution;
- Promotion/Wholesale Promotion of Obscenity to a Minor;
- Public Indecency (with one or more priors in certain timeframes);
- Invasion of Privacy – if for Sexual Gratification;
- Second Degree Kidnapping;
- Attempt, conspiracy, or solicitation to commit any of these offenses.
Four very important notes on registration:
- Indeterminate sentencing requires lifetime registration as a sex offender.
- Even if you are able to plead to a non-sex offense, if the underlying factual basis for the plea involves unlawful sexual behavior, you still have to register as a sex offender.
- Two or more sex crime convictions result in lifetime registration, even if the two or more convictions were charges in the same case.
- In order to be removed from the sex offender registry (if eligible), you must petition the court to de-register. The court may deny your petition if you have new criminal offenses, probation violations, did not complete treatment, or if the victim objects.
Call Peak Legal Services LLC now at (720) 445-9779 or email [email protected] to discuss your case with Doug and Todd.
Deferred Judgments & Sentences
A deferred judgment is a type of plea bargain in which you agree to plead guilty – but your conviction is held in abeyance, or shelved, and can be later dismissed entirely. The benefit of a deferred is that at the end of that abeyance period, the case is dismissed and you can move to seal the record.
Additionally, in a sex offense case, instead of 5-, 10-, 20-year or lifetime sex offender registration, you can petition to de-register at the end of the deferred and closure of the case.
The flip side is if you fail to meet any of these conditions during this deferred period, or commit another crime during this period, you may be revoked, found guilty of the original crime and sentenced according to the regular penalties for that crime. Depending on the crime, you also may lose the chance to seal your criminal records from public view.
Sometimes through plea bargaining, an attorney can obtain a deferred offer if he can point out problems with the prosecutor’s case against you (e.g. the police did not do something right, police did not get all the information right, or a witness was mistaken or not totally accurate, etc.). The prosecution may still have a chance at a conviction but not as great a case. Other times, it could just be that you have no prior criminal history, the case is not that serious compared to other crimes, and your attorney knows how to present these arguments during plea bargaining.
When you are on a “deferred,” you are required to meet certain conditions depending on the type of case. Examples include: sex offender treatment, domestic violence counseling, anger management classes, drug treatment and testing, public service, and paying restitution to any victim(s).
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about deferred sentencing or to discuss your case.
Crimes of Violence (COVs)
“Crimes of violence” (COV) pose substantial, increased sentencing risk for you. If you are alleged to have used, possessed, or threatened to use a deadly weapon, or if there was serious bodily injury or death, you can be charged with a COV.
Nine crimes are currently listed as crimes of violence in Colorado:
- First Degree Assault;
- Second Degree assault;
- Murder in the Second Degree;
- 1st-Degree Burglary;
- Aggravated robbery;
- Certain Sex Offenses;
- Crimes Against Juveniles or “At Risk” Adults (usually elderly or disabled).
There are serious sentencing consequences for Crime of Violence convictions:
- Prison is mandatory. You will have no possibility of a probationary sentence.
- The sentencing range increases automatically to the midpoint of the normal range to twice the normal maximum.
- Example: A typical Class 4 Felony conviction results in the possibility of 2-6 years in prison. But a COV Class 4 Felony conviction requires 5-16 years mandatory prison
- All COV crimes are considered to be extraordinary risk (ER) crimes. This creates a double whammy of sorts. What happens is the normal range increases because it is an ER crime, and then the aggravated range is used to form the basis of the midpoint to twice the maximum range.
- Example: Using the same example above, a Class 4 Felony that is also a COV and ER crime increases from 2-6 years possible prison with probation eligibility, to 2-8 years possible prison as an ER crime, to 5-16 years mandatory prison for a COV and ER crime. An example of this would be Second Degree Assault-COV, where someone assaulted someone with a deadly weapon or hit them and caused serious injury.
It also is important for you to know, and attorneys to explain, that if you are convicted of two or more COV offenses in the same incident, you will most likely receive a consecutive sentence rather than a concurrent sentence for each of the crimes. This means you will serve each sentence one after the other, rather than serving them both at the same time.
Crimes of Violence Increase Percentage of Sentence Served In Prison
If you are convicted of a COV, it also impacts how much of your original sentence you will serve. Currently in Colorado, all prison inmates are eligible for “good time” and “earned time” that reduces their sentence.
Good time: Inmates are credited for good behavior while in prison. This credit can make you eligible for earlier release, known as the parole eligibility date (PED). You are also entitled to good time credit deducted from a prison sentence for time you served in the county jail before your conviction and sentence.
Earned time: Inmates are credited for participating in certain educational or vocational activities while in prison. This is in addition to and separate from good time.
In non-COV cases, a prisoner begins with the presumption that he or she will serve 50% of the original sentence. If the prisoner then earns all possible good time and earned time, actual time served can be reduced to less than 35% of the original sentence.
However, in COV cases, a prisoner begins with the presumption that he or she will serve 75% of the sentence. The prisoner can then reduce actual time served to only about 55% of the original sentence.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about crime of violence sentencing and to discuss your case.
Extraordinary Risk Crimes
Extraordinary risk crimes are viewed as more aggravated, justifying higher sentencing ranges. As noted above, ER crimes carry a higher sentencing range on the top end. For example, an F5 felony typically carries a sentencing range of 2-6 years, but the F5 extraordinary risk felony range is 2-8 years.
There are nine felony crimes that have an “extraordinary risk” tag in Colorado:
- Any Crime of Violence;
- Aggravated Robbery;
- Child Abuse;
- Distribution, manufacture, dispensing, sale, or possession with intent to sell illegal drugs,
- Invasion of Privacy for Sexual Gratification;
- Human Trafficking for Involuntary Servitude or Sexual Servitude;
- Assault in the Second Degree;
- False Reporting of an Emergency.
In addition, there are seven misdemeanor crimes that also carry an extraordinary risk tag:
- Child abuse;
- Third degree assault;
- Unlawful sexual contact;
- Sexual assault;
- Violation of a protection order (2nd and subsequent offenses);
- Failure to register as a sex offender; and,
- Invasion of privacy for sexual gratification.
Again, extraordinary risk crimes have higher sentencing ranges: a Class 1 misdemeanor normally carries a range of six to eighteen months jail, but an extraordinary risk Class 1, such as Third-Degree Assault, carries a maximum of two years jail.
Domestic Violence Cases
In Colorado, domestic violence is not its own offense. Instead, domestic violence serves as an aggravator, potentially adding harsher sentencing penalties and requirements to the main charge (e.g. assault, harassment, menacing, stalking, or violating a protection order). If you are convicted of an offense, and then the offense is found to contain elements of domestic violence, sentencing for that underlying offense can be harshened. Additionally, other requirements, like the completion of court-ordered evaluation and treatment, come into effect.
Domestic violence does not only mean physical violence against a partner. Actions that are used to control, coerce, threaten, intimidate, seek revenge, damage property, or harm animals can be considered “domestic violence” if the parties are or were in an “intimate relationship” with one another. An “intimate relationship” requires that the parties have or do share parental status, are or were married, or are or were in a romantic relationship.
For offenders with prior domestic violence convictions, charging and sentencing becomes aggravated. For example, charges may be ratcheted up from misdemeanors to felonies if you have multiple prior domestic violence convictions.
Under federal law, people convicted of certain domestic violence offenses also are prohibited from buying or owning guns. Federally, a misdemeanor conviction is counted as a domestic violence offense if the victim is any of the following:
- A current or former spouse, child, or ward;
- A person who shares a child in common with the offender;
- A current or former cohabitant as spouse, child, or ward; or,
- Anyone acting in those roles.
Colorado law requires that anyone convicted of a domestic violence misdemeanor or felony surrender any guns and ammunition and restricts the future purchase of any guns or ammunition. Colorado law also requires the issuance of a protective order for the alleged victim against the defendant in domestic violence offenses once charges have been filed. Under federal law, anyone subject to a protective order is barred from owning or purchasing firearms. This means that anyone accused of a domestic violence offense in Colorado is prohibited from owning or purchasing guns for the duration of the order.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about plea bargaining and sentencing in domestic violence cases and protection orders, or to discuss your case.
Your Attorney Should Prepare and Assist You Before Sentencing
While getting your case dismissed entirely or getting the best possible plea deal is part of what you should be looking for when hiring a lawyer, there are other aspects of sentencing that you must consider.
One of these is a Pre-Sentence Investigation (PSI) and determination that is made by the State Probation Department. In most cases, unless the judge accepts an agreement between the District Attorney and your defense attorney, you often will have to go through a PSI before you are sentenced.
In a PSI, you fill out a lot of forms that ask about your social, family and criminal history, your finances, drug use and even about your version of the offense. You then will meet with a State Probation Officer, who writes a report about you that goes to the Court before sentencing.
Attorneys often do not attend PSI interviews with their clients, even though judges rely heavily on the PSI reports when determining the appropriate sentence. It is critical to hire an attorney who will prepare you for and accompany you on PSI interviews. Doug and Todd will be with you every step of the way, including through PSI interviews.
Call attorneys Doug or Todd at Peak Legal Services LLC now at (720) 445-9779 or email them at [email protected] to learn more about plea bargaining and sentencing in domestic violence cases and protection orders, or to discuss your case.
The Peak Legal Philosophy
Doug and Todd are well-versed in the Colorado sentencing guidelines used by prosecutors and judges. You can trust that we will explore all options to fight for you and your family in plea negotiations and sentencing.
Here at Peak Legal, we care about you as a whole person. We listen and learn about your life before you were arrested. With your help, we will create a game plan that takes into account the facts of your case, your goals, and our vast knowledge of and experience working in the Colorado justice system.
There are many factors to consider in plea bargaining and sentencing. You need attorneys on your side who understand the complexities of plea and sentencing. Doug and Todd will explain your options to you and will be there for you and your family throughout the plea bargaining and sentencing process. We care about your future.