Resentencing – Can I get my sentence modified in Colorado?

If you have been sentenced for a criminal conviction in Colorado, you can ask the judge to modify your sentence by filing a motion for reconsideration under Rule 35(b). This is sometimes called resentencing.

It is in the judge’s discretion whether or not to lessen your sentencing terms.

Am I Eligible for Resentencing?

Anyone who has been sentenced for a Colorado crime is free to file a motion for reconsideration. It makes no difference whether your sentence includes jail/prison or just fines, community service, classes, and/or restitution. You may ask courts to reconsider even lax sentences.

However, the judge is never obligated to grant motions for reconsideration. If the judge denies your motion, your original sentence will stand.

Note that judges may never increase your sentence following a motion to reconsider. You can also appeal the judge’s ruling to deny your motion for reconsideration. In that sense, you have nothing to lose by filing this motion.¹

What Are the Grounds?

You can make various arguments as to why you deserve a lighter sentence. The most common one is that the original sentence was disproportionately severe as compared to the seriousness of the underlying crime. Other grounds may include:

• the trial was unfair to you;
• you suffered from ineffective assistance of counsel; and/or
• there was prosecutorial misconduct that influenced the sentence.

Arguments for reconsideration can also include “mitigating factors,” which are facts that make you seem less blameworthy or more deserving of a lighter sentence. Examples include:

• you took responsibility for your actions and show remorse;
• you were a product of an abusive childhood, which led to your criminal behavior;
• a lesser sentence will serve the public interest;
• you suffer from mental incapacity that makes it difficult for you to distinguish between right and wrong;
• you have been a model prisoner; and/or
• you has shown yourself to be rehabilitated.²

Judges have the discretion over whether to grant a motion for reconsideration of a sentence.

What is the Process?

To get your sentence modified in Colorado, as your attorney I would file a motion to reconsider your sentence to the court that sentenced you. This motion would be in writing, and it can include evidence that did not exist during your original sentencing hearing.

The judge then may hold a hearing on the motion. This is where I argue in support of the motion and the prosecutors argue against it. The judge can also decide to rule on the motion without holding a hearing at all.

Note that the deadline for filing a motion to reconsider the sentence turns on whether you are appealing the trial verdict. If there is no appeal, we have 126 days after the sentence to file the motion. If you are appealing, then we have 126 days after the appellate court’s decision.

You may not appeal a case and file a motion to reconsider a sentence simultaneously. If this happens, the motion to reconsider will become moot.³

Additional Reading

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

• Reviewing Leniency – The University of Chicago Law Review.
• The Sentencing Court’s Discretion to Depart downward in Recognition of a Defendant’s Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement – Indiana Law Review.
• Sentence Reduction as a Remedy for Prosecutorial Misconduct – Georgetown Law Journal.
• Race, remorse, and sentence reduction: Is saying you’re sorry enough? – Justice Quarterly.
  
• First Thoughts about Second Look and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision – University of Toledo Law Review.

Legal References