Sentencing Hearings in Colorado – How It Works

After a criminal conviction in Colorado, the sentencing is a hearing where the judge decides what punishment to impose. You (the defendant), the prosecutor, and the victims all have an opportunity to address the judge before they impose any fines, incarceration, or other penalties.

The following flowchart summarizes the criminal court process up through sentencing.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is a sentencing hearing?
• 2. What are my rights during a sentencing hearing?
• 3. What are the criminal sentences after a conviction?
• 4. When do sentencing hearings occur?
• 5. Can I avoid jail time after a conviction?
• Additional Reading

1. What is a sentencing hearing?

The sentencing hearing is where a criminal court judge hears testimony and evidence relevant to determining what kinds of criminal penalties they will hand down to you. A sentencing hearing comes after you are convicted either through:

• a guilty verdict at trial or
• pleading guilty or no contest as part of a plea bargain.

The sentencing hearing will generally involve you, your defense attorney, the prosecutor, the judge, and in some cases, the victim. You and your attorney should be focused on getting the best possible sentence: This may mean a minimal term in jail or avoiding incarceration completely.

Favorable Evidence

During the sentencing hearing, your criminal defense attorney will present arguments and information to the judge on your behalf. This could include recommending alternatives to jail that may be a better way to rehabilitate you, including:

• probation,
• drug or alcohol counseling, or
• educational programs.

Your attorney may also present supporting evidence that you are not a danger to the community, you regret your actions, and you are not going to commit similar crimes in the future.

Unfavorable Evidence

From our experience at Colorado Legal Defense Group, we have found it may also be important to address the negative factors in your case. If you do not bring them up, then chances are the district attorney will.

By addressing the negatives, we can offer an explanation and agree to seek help to address the underlying problems. This may defang the prosecutor’s arguments for a harsher sentencing decision.

Pre-Sentence Investigation Reports

If applicable to the case, the judge will also consider the recommendations in your PSIR (pre-sentence investigation report) prepared by the probation department. The PSIR contains:

• your demographics,
• the facts of the crime,
• whether you expressed remorse in your interview with the probation department,
• if victims were impacted, and to what extent.¹

In cases where you were falsely convicted and intend to appeal, we may recommend that you decline to be interviewed by the probation department. Judges give a lot of deference to PSIRs when making their sentencing decisions, and we do not want the PSIR to say you expressed no remorse.

2. What are my rights during a sentencing hearing?

You have the constitutional right to be present during your sentencing hearing and to have an attorney represent you.

You will have the opportunity to argue for a certain penalty, including an alternative sentence. However, the prosecutor will also have a chance to be heard and give their reason for seeking a recommended sentence.

Certainly, every judge is different and looks for different things. Based on our past experience with a particular judge, we know how to tailor our presentation to them so we can maximize the odds of getting a lax sentence.

Should I speak at my sentencing?

The only time it really makes sense to remain silent at your sentencing hearing is if you are wrongly convicted and plan to appeal.

In most other cases, absolutely you should exercise your “right of allocution” by addressing the court directly. This is your one opportunity to explain “from the horse’s mouth” why you deserve leniency and specifically what you have done and will do to reform yourself.

It is best to draft your statement prior to sentencing, and let your attorney help you with it. If you do speak at your sentencing, follow these five tips:

1. Do NOT blame-shift or make excuses. Convey that you understand what you did wrong.
2. Do not ham it up by begging, being overly fawning, asking for forgiveness, or making empty promises such as, “I assure you I’ll never waste the court’s time again if you give me probation.”
3. Act humbly and avoid “woe as me” cliches such as, “My children need me” or “prison will ruin my mental health.”
4. Express heartfelt remorse. Weeping and nervousness are fine as long as you are genuine.
5. Be as short as possible while covering as much ground as possible. You want to “pack a punch” so you make a lasting impression.

If you read your statement instead of reciting it by heart, keep looking up to make eye contact with the judge and any victims.

Should I write the judge a letter instead?

We find it is far more effective when our clients speak at their sentencing hearing than when they write the judge a letter (called a “defendant’s letter” or “prison letter”). Defendants tend to write letters that are far too long and filled with excuses, and this will just anger the judge, who already has too much to read.

Instead, we recommend you ask five to 15 friends, family members, colleagues, or neighbors to write “character letters” to the judge on your behalf. These letters should be no more than two or three pages (double-spaced), and they should focus on:

• the nature of your relationship with the letter writer,
• how the letter writer supports you because your crime is out of line with your character,
• your positive attributes, such as reliability, honesty, and work ethic, and devotion to your family, and
• any community service you performed and other specific examples of your good deeds.

Character letters should not express any grievances about the criminal justice system or make excuses for you.

The Rules of Evidence

The rules of evidence are somewhat relaxed in a sentencing hearing compared to a jury trial. The judge will often allow evidence that was excluded at trial to come in during the sentencing hearing. Examples include:

• hearsay and
• character evidence that was not relevant at trial.²

3. What are the possible sentences after a conviction?

Criminal sentence ranges after a conviction depend on the level of offense, type of crime, your criminal history, and other factors. Sentencing can include any number of penalties and restrictions, including:

• Jail time
• Fines and fees
• Victim restitution
• Probation
• House arrest
• Drug and alcohol counseling
• Anger management counseling
• Community service
• Submitting to drug testing
• Submitting to warrantless searches
• Registration as a sex offender

Crime Classifications

In Colorado, petty offenses have the laxest penalties, followed by misdemeanors, and then felonies.

Class 1 misdemeanors generally have a maximum penalty of up to 18 months in jail. However, some class 1 felonies carry the possibility of life in prison.

Crimes of violence and sexual assault often carry the most severe penalties.

Aggravating and Mitigating Factors

Most criminal offenses in Colorado are subject to a range of penalties, including minimum and maximum prison sentences and fine amounts. However, depending on the situation, aggravating or mitigating factors can increase or reduce the standard penalty.

Aggravating factors include (but are not limited to) that:

• you have an extensive criminal history,
• you played a major role in the crime,
• you lack remorse,
• you tortured the victim,
• the victim was injured or killed or lost a great deal of money, or
• the victim was a vulnerable person (such as a child).

Mitigating factors include (but are not limited to) that:

• you played only a minor role in the crime,
• the victim initiated the crime,
• you acted out of necessity, duress, or coercion,
• you have mental/emotional problems or suffer from addiction,
• you had an abusive childhood,
• you are uneducated,
• no one was hurt,
• you have dependents (such as children) relying on you,
• you show remorse, and/or
• you have an otherwise clean criminal record.³

4. When do sentencing hearings occur?

It depends. If you plead guilty (or no contest) at your arraignment, the judge can sentence you right away. Though in most cases, sentencing hearings occur weeks or months after the arraignment when the case finally resolves through a plea or trial.

In minor cases, the judge may hold the sentencing hearing right after your conviction. Though if you are facing incarceration, the judge will likely schedule your sentencing hearing several weeks later to give your attorney time to prepare.

Can I remain out of jail until the sentencing hearing?

It also depends. If you are deemed a flight risk or if you have been convicted of a felony or violent crime, you are more likely to be taken into custody right after your conviction.

If you are convicted of a non-violent offense or misdemeanor, you may be able to remain out of jail pending your sentencing hearing. Then once you are sentenced, the judge may give you a future commitment date by which you must show up to jail or prison. However, you may need to renew your bond to remain out of custody until then.⁴

5. Can I avoid jail time after a conviction?

There are many factors that go into your sentencing, and it is not always possible to avoid jail time. Some criminal offenses have a mandatory minimum prison sentence.

However, your attorney can work to get alternative sentencing instead of jail time. This could include

• house arrest/home detention,
• probation,
• community corrections, or
• agreeing to participate in mental health treatment or education programs.

(Violating your conditions of probation could result in you being remanded to jail or prison.)

Appeals

Additionally, you may be able to appeal your case to a higher Colorado court. Final judgment is entered after sentencing, at which point you can appeal your case.

Appeals can be more complex than the initial trial, so you should talk to your attorney about whether you should file an appeal and if you have grounds for an appeal.⁵

In practice, sentences are rarely lowered on appeal unless the higher court finds a clear abuse of discretion. As long as the sentence falls within the sentencing range and is supported by facts, it will likely be upheld.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
• Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
• Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
• The Emergence of Sentencing Hearings – Punishment & Society.
• The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.

Read our related articles on the Colorado criminal law court process, pretrial hearings, preliminary hearings, probation revocation hearings, mandatory minimum sentencing laws, and expungements.

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Legal References