The Sentencing Process: Who is Involved?

There are numerous people who can be involved in a defendant’s sentencing and sentencing hearing:

• Judge
• Probation Department
• Counselors, Therapists, Psychologists, Psychiatrists
• District Attorney or Deputy District Attorneys
• Victims and their Families
• Defense Attorney or Public Defender

A Judge’s Role in a Weld County Criminal Sentencing

For a Weld, Morgan, or Logan County judge, sentencing is a very serious responsibility. The judge is tasked with deciding if the plea bargain punishment agreed upon by the defense attorney and district attorney is just, or what the appropriate punishment should be for a person after a guilty verdict. When sentencing is open, judges have to be mindful of public opinion (usually pushing for harsh sentences) and giving an appropriate sentence based on all the facts and mitigating factors presented. Judges who are seen as too harsh or too easy can face a short career as the public must vote to retain them. This is often why judges rely on the recommendations provided by other outlets (probation and the DA) to support their sentencing decisions.

Sentencing Options for a Weld County Judge

When a defendant is brought before a judge for sentencing, the judge can choose to sentence that person to incarceration or probation. Certain convictions and pleas require a defendant to serve time in the Weld County Jail, Community Corrections or the Colorado Department of Corrections. A felony is punishable by a sentence to prison, whereas a misdemeanor incarceration sentence will be spent in the Morgan or Larimer County Jail. The sentence ranges are decided by the Colorado lawmakers based on the level of felony or misdemeanor and if any aggravating or special circumstances apply. Some crimes require a sentence to incarceration, but for those that don’t require it, a judge has some options other than jail or prison. As long as a defendant is accepted, they could go to the Community Corrections program with Weld County, where movements are monitored and nights are spent in the facility, but access to the community is allowed. In-home detention is an option for less serious cases. Probation is also an available sentencing avenue. Judges can impose added conditions on a probation sentence like:

• Treatment - Mental Health, Drug, Alcohol, Sex Offender
• Mandatory Therapy with a Counselor or Therapist
• Anger Management
• Medication
• Employment
• Community Service (Useful Public Service)
• Restraining and Protection Orders
• Restitution
• Classes or Courses on Maintaining Boundaries, Victim Empathy, etc
• GPS Monitoring
• Supervision by a Probation Officer
• Paying Fines and Court Costs
• Jail as a Condition of Probation (up to 60 days for a misdemeanor, 90 days for a felony, or 2 years of work release)

A judge basically has the authority to impose conditions that will help prevent recidivism.

The Importance of  Pre-Sentence Investigation (PSI) Through the Probation Department

Prior to the sentencing hearing, the judge will order the Weld County probation department and the defendant to meet and complete a pre-sentence investigation report. If the defendant is in custody, then it becomes the probation department’s responsibility to go to the facility and complete the investigation. If the defendant is out of custody, then they will need to schedule an appointment with a probation officer. The purpose of this investigative report is to present a fuller picture of the defendant to the judge, overview the facts of the case, summarize the defendant’s willingness to accept responsibility and the empathy they hold for their victim, as well as give sentencing recommendations. The following are all areas that are included in the PSI:

• Criminal History
• Mental Health Evaluations
• Alcohol and Substance Abuse Evaluations
• Police Reports
• Statements from the defendant about the case
• Concerning Test Results
• Law regarding sentencing ranges
• Limitations on sentencing either by plea agreement or law
• Probation Officer’s Opinion
• Victim’s Statement on Sentencing

Professionals Who Can Provide Input at Sentencing

Counselors, therapists, psychologists, psychiatrists, and other professionals of a similar nature can all provide input for sentencing. This can be a good or bad thing depending on who has asked them to provide their opinion. Reports for the defendant can highlight things like a willingness to change, an acceptance of responsibility, and a commitment to treatment and therapy - all suggesting a lesser punishment or community based sentence. Reports submitted for the victim may illustrate the impact of the crime on the victim’s life and request harsher punitive measures be ordered.

District Attorneys at Sentencing

At the sentencing hearing, the District Attorney or Deputy District Attorney will present an argument to the judge about how they feel the defendant should be punished. They will remind the judge of all the negative information about the defendant, as provided through testimony in a trial or through discovery reports. They will discuss the victim and the impact the crime has had on the victim’s life. During this presentation, they will also request a restitution amount be ordered.

The Victim and Victim’s Family at Sentencing

The victim in any criminal case is given the opportunity to speak at the sentencing hearing. Usually, the victim and / or the victim’s family will give tearful statements about the impact the crime has had on their lives and the pain and suffering involved. Generally when a victim chooses to speak, it is with the intent of getting a harsher sentence for the defendant. This is not always the case, and some victims are very reasonable. For many, the wounds are still fresh and this is their opportunity to speak about it in hopes of getting more punitive measures placed on the defendant. This is always a dangerous part of the sentencing hearing, as judges are human too and can be greatly swayed by these emotional statements.

The Defense at a Sentencing Hearing | A Defense Attorney’s Role

An experienced criminal defense attorney will be able to prepare a defendant for their sentencing, explaining everyone’s motives and the role each person will play in the hearing. Sentencing is never an easy part for the defendant, but coming in predisposed for what could happen is the best way to prepare. The defense attorney or public defender will ask a judge for a lesser sentence within the confines of the law and present a picture of their client along with the defendant’s interpretation of what occurred. At the O’Malley Law Office, we often have witnesses, family members and professionals speak at the sentencing hearing to give their opinions and experiences with the defendant. We do this to counter all the negative points that the district attorney argues. A prepared defense attorney can make the difference between a Fort Collins judge giving jail, prison, or probation.

A defendant also has the opportunity to speak at the sentencing hearing. A good defense attorney will help the client prepare what to say and more importantly what not to say when given the opportunity to speak. It is important for the defendant to take responsibility for their actions, never passing the blame onto anyone else - especially the victim. Any statements made should be genuine, as a judge will see through falsities. This is also the opportunity for the defendant to tell the judge why a more lenient or lesser sentence is appropriate.