How does “habitual offender sentencing” work in Colorado?

A third serious felony conviction in Colorado triggers a life sentence as a habitual offender. This is Colorado’s version of the three strikes law.

Specifically, courts deem you a habitual offender upon your third conviction of any:

• class 1 felony,
• class 2 felony,
• level 1 drug felony, and/or
• class 3 felony that is a crime of violence.

You are also deemed a habitual offender upon your third conviction in 10 years of any class 1-5 felony or level 1-3 drug felony. In this case, the sentence would be three times the maximum presumptive range for the felony you are currently being sentenced for.

For offenses committed on or after July 1, 2023, it may be possible to petition for a lower sentence once you serve ten years. You need to demonstrate your case had mitigating factors and that you have been a compliant inmate.

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

• 1. What is a habitual offender in Colorado?
• 2. Three Strikes Law in Colorado
• 3. What are habitual offender crimes?
• 4. How do prosecutors show evidence of former convictions?
• 5. Habitual offender status after sentencing
• 6. Can the sentence be modified?
• 7. Additional reading

1. What is a habitual offender in Colorado?

Under Colorado law, a “habitual offender” is a person

• charged with a serious felony
• who has been convicted of two prior felonies.

This is also known as the Three Strikes law. After two serious felony convictions, a third felony conviction could result in life in prison, much higher than the normal maximum sentence for the same crime.

2. Three Strikes Law in Colorado

A person is a habitual criminal and shall be punished by a term of life in prison if the person is convicted of:

• Any class 1 or 2 felony, level 1 drug felony, or class 3 felony that is a crime of violence; and
• Has been twice convicted previously for any of the above offenses.¹

A conviction for a fourth felony is punishable by a term of four times the maximum presumptive range for the felony of which the person is convicted.²

Anyone who has been previously convicted of a class 1-5 felony or level 1-3 drug felony may also be considered a habitual offender if they are convicted of a 3rd felony within ten years.³ A conviction for a 3rd felony (class 1-5 felony or level 1-3 drug felony) within ten years is punishable by a term of three times the maximum presumptive range for the felony of which a person is convicted.⁴

3. What are habitual offender crimes?

Under C.R.S. 18-1.3-801, offenses that qualify for the three strikes law include

• class 3 felony crimes of violence,
• level 1 drug felonies, or
• any class 1 or class 2 felony.

This includes crimes prosecuted in Colorado, other states, or federal offenses.⁵

Examples of three strikes crimes include:

Class 1 Felonies

• First-degree murder
• Treason
• Assault during escape

Class 2 Felonies

• Second-degree murder
• Second-degree kidnapping
• Sexual assault
• Human trafficking of a child
• Racketeering

Class 3 Felony Crimes of Violence

• Murder
• First or second-degree assault
• Kidnapping
• Aggravated robbery
• First-degree arson
• Sex offense causing bodily injury
• Use of a deadly weapon

Level 1 Drug Felonies

• Distribution or sale of more than 225 grams of cocaine, heroin, LSD, methamphetamine, Fentanyl, OxyContin, or other Schedule I or Schedule II drugs
• Sale of more than 2 ½ pounds of marijuana to a minor
• Sale or distribution of schedule I or schedule II drugs to a minor

4. How do prosecutors show evidence of former convictions?

A duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against is used as prima facie evidence of such convictions and may be used in evidence against such party. Evidence of prior convictions may include identification photographs and fingerprints and shall be prima facie evidence of the identity of such party and may be used in evidence against him or her.⁶

5. Habitual offender status after sentencing

If the prosecutor does not have evidence of prior three-strikes convictions, or the defendant has not yet been sentenced for a prior offense, the defendant may still face enhanced sentencing. The prosecutor may file separate counts that the defendant has been convicted of an offense upon which judgment has not been entered and that the defendant has been previously convicted of a felony warranting the application of increased penalties.

The defendant may then be arraigned upon the new information and if the defendant denies the previous conviction, the trial judge shall try the issue before the imposition of sentence.⁷

6. Can the sentence be modified?

For offenses committed on or after July 1, 2023, a defendant who has been convicted and sentenced as a habitual offender, receiving a sentence of 24 years or more, can request the court to modify their sentence, including any other habitual sentences, after serving a minimum of 10 calendar years.

The defendant is responsible for providing evidence, by a preponderance of the evidence, that there are significant mitigating factors related to the offense or offenses, or circumstances about the defendant at the time of conviction. Furthermore, they must demonstrate positive, engaged, and productive behavior while incarcerated and show that they currently pose no threat to the community.

Suppose the court finds sufficient justification for modifying the sentence. In that case, the defendant may be resentenced to a term ranging from at least the midpoint in the aggravated range for the class of felony the defendant was convicted of, up to a sentence less than the current sentence.⁸

7. Additional reading

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

• Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results – Houston Law Review.
• Habitual Offenders: The Causes and Consequences – Indiana Journal of Law & Legal Research.
• The Pandemic as a Portal: Reimagining Crime and Punishment in Colorado in the Wake of COVID-19 – Denver Law Review.
• The Problem of Habitual Offender Laws in States with Felony Disenfranchisement – The Journal of Criminal Law and Criminology.
• Three Strikes and You’re Out!: The Political Sentencing Game – The American Law System.

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Legal References