“Sentencing Hearings” in Colorado – How It Works

In Colorado, you are entitled to a sentencing hearing after getting convicted of a crime whether through a plea bargain or trial. At the hearing, the judge listens to testimony and evidence relevant to determining what kinds of criminal penalties to impose on you.

You (the defendant), your defense attorney, the prosecutor, and the victims all have an opportunity to address the judge before you get sentenced. Your attorney will focus on getting the laxest possible sentence and avoiding incarceration if possible.

In this article, our Denver criminal defense lawyers will address the following key issues regarding Colorado sentencing laws:

• 1. Evidence
• 2. PSIRs
• 3. Your Rights
• 4. What to Say to the Judge
• 5. Possible Sentences
• 6. Timing
• 7. Remaining Out of Jail Before Sentencing
• 8. Alternatives to Jail/Prison
• 9. Appeals
• Frequently Asked Questions
• Additional Reading

1. Evidence

During your Colorado 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.

From our experience at Colorado Legal Defense Group, it may also be essential to address the negative factors in your case before the district attorney does. This way, we can explain and agree to seek help in addressing the underlying problems. This may de-fang the prosecutor’s arguments for a harsher sentencing decision.

Note that 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.¹

2. PSIRs

If applicable to your case, the judge in your Colorado sentencing hearing 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.²

We generally advise that you exercise “strategic silence” and politely decline to be interviewed by the probation department. It is a nerve-racking experience, and you may express innocent sentiments that can be taken the wrong way.

Participating in PSIRs is nearly always a bad idea in cases where you were falsely convicted and intend to appeal. 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.

3. Your Rights

In Colorado, 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 specific penalty, including an alternative sentence. However, the prosecutor will also have the opportunity to be heard and provide their rationale for seeking a recommended sentence.

Indeed, every judge is different and looks for different things. Based on our 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.

4. What to Say to the Judge

The only time it really makes sense to remain silent at your Colorado 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. Express your understanding of what went wrong.
2. Avoid exaggerating 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 is 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.

Writing to the Judge

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 excessively long and filled with excuses, which will only 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.

If you do write your own statement, we advise to keep it to two double-spaced pages. The judge will likely only skim it, so consider using bullet points to maximize readability. Also provide a solid timeline of your plans for achieving goals (such as school, rehab, etc.) so it sounds like you are serious and determined.

5. Possible Sentences

In Colorado, criminal sentence ranges 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 364 days in jail. Meanwhile, 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, and your behavior was aberrant (out of character).

Although Colorado judges are not bound by federal rules, we also cite to mitigating arguments in the Federal Sentencing Guidelines that may show you in a less blameworthy light.³

6. Timing

In minor Colorado criminal 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.

7. Remaining Out of Jail Before Sentencing

Whether you can remain out of custody prior to your sentencing date in Colorado depends on your case.

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 at jail or prison. However, you may need to renew your bond to remain out of custody until then.⁴

8. Alternatives to Jail/Prison

Many factors go into your sentencing in Colorado, and it is not always possible to avoid incarceration. Some criminal offenses have a mandatory minimum prison sentence.

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

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

Note that violating your conditions of probation could result in you being remanded to jail or prison.

9. Appeals

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

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.

Frequently Asked Questions

Do I have to speak at my sentencing hearing?

No, you are not required to speak at your sentencing hearing. However, in most cases (except when you plan to appeal), it’s recommended that you address the judge directly. This is called your “right of allocution” and gives you a chance to explain why you deserve leniency and what you’ve done to reform yourself.

What happens if I cannot stay out of jail before my sentencing date?

Whether you stay out of jail before sentencing depends on your case. If you’re considered a flight risk or convicted of a felony or violent crime, you’ll likely be taken into custody immediately. For non-violent offenses or misdemeanors, you may remain free until sentencing, but you might need to renew your bond.

What is a PSIR and should I participate in the interview?

A PSIR (pre-sentence investigation report) is prepared by the probation department and includes your background, crime details, and whether you showed remorse. The article recommends “strategic silence” – politely declining the interview because your words could be misinterpreted. This is especially important if you plan to appeal your conviction.

Can I avoid jail time at sentencing?

Possibly, depending on your case. Your attorney can argue for alternatives like probation, house arrest, community corrections, or treatment programs. However, some crimes have mandatory minimum prison sentences. Factors like your criminal history, the type of crime, and showing remorse all affect your chances of avoiding incarceration.

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, and expungements.

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Legal References