How can I get a sentence modified (resentencing) in Colorado?

Colorado defendants who have been sentenced for a criminal conviction can file a motion for reconsideration under Colorado Rule 35(b) asking the judge to modify the sentence. This is sometimes called resentencing. It is in the judge’s complete discretion whether or not to lessen the sentencing terms.

Eligibility for a Motion for Reconsideration

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

The judge is never obligated to grant motions for reconsideration. And if the judge denies the motion, the original sentence will stand.

Note that judges may not increase the sentence following a motion to reconsider–in that sense, defendants have nothing to lose by filing this motion.

Grounds for a Motion for Reconsideration

Defendants can make various arguments as to why they 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 the defendant;
• the defendant 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 about the defendant that make him/her seem less blameworthy. Examples include:

• the defendant has taken responsibility for his/her actions and shows remorse;
• the defendant was a product of an abusive childhood, which led to his/her criminal behavior;
• granting a lesser sentence will serve the public interest; and/or
• the defendant has mental incapacity that makes it difficult for him/her to distinguish between right and wrong

Arguments for reconsideration can also include facts and circumstances that occurred after the alleged crime but that may justify a lighter sentence. Examples include:

• the defendant has been a model prisoner; and/or
• the defendant has shown him/herself to be rehabilitated

Process for filing a motion for reconsideration

Defendants (or their attorneys) must file a motion to reconsider their sentence in writing to the court that sentenced them. This motion can include evidence that did not exist during the original sentencing hearing in the Colorado court.

The judge then may hold a hearing on the motion. This is where the defense attorney and the prosecution argue for and against the motion, respectively. But the judge can also decide to rule on the motion without holding a court hearing.

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

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