By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer – Attorney

Second Degree Assault -18-3-203 – Dropping Mandatory Sentences To Prison Changes Everything – Colorado Criminal Law – A major change on behalf of fairness in sentencing and plea bargaining was quietly enacted into law in 2016 with the passage of Colorado Senate Bill 16-102: Removing Mandatory Sentences for Second Degree Assault and Bail Bond Crimes. Prior to the change, a person convicted of certain types of second degree assault (and the violating bail bond conditions law) was required to be sentenced to a mandatory term of prison. The bill removed the mandatory term of incarceration requirement thus making the decision to take a case to trial much less of a risk for certain sections of Colorado’s Second Degree Assault law.

Colorado Crimes of Violence Charges And Mandatory Prison Sentences

Under Colorado law the commission of, conspiracy to commit, or attempt to commit criminal actions that:

(1) involve the use, possession, or threat of a deadly weapon or

(2) cause serious bodily injury or death of any other person.

Colorado law as crimes of violence are subject to something called enhanced sentencing.

Crimes of Violence include:

• any crime against an at-risk adult or at-risk juvenile;
• murder;
• first or second degree assault;
• kidnapping;
• aggravated robbery;
• first degree arson;
• first degree burglary;
• escape;
• criminal extortion;
• first or second degree unlawful termination of pregnancy; and
• any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim.

Until the change that is the subject of this article – (changes to Colorado’s Second Degree Assault law) – any offender convicted of certain forms of Second Degree Assault – crimes of violence was required to be sentenced to a term of incarceration in the Department of Corrections of at least the midpoint in the presumptive range but not more than twice the maximum term for the offense, as modified by the extraordinary risk crime statute.

Mandatory sentencing laws require Colorado Judges are required to sentence most individuals convicted of certain categories of crimes (see above) to a mandatory minimum period of incarceration.

Put differently, Second Degree Assault is enumerated Colorado “crime of violence” and prior to the changes that are the subject of this article this meant that upon a conviction for the charge, like other crimes of violence, a term of mandatory imprisonment.

For Second Degree Assault the mandatory sentence, depending on how it is charged, is a mandatory minimum of 5 years to 16 years in prison because is a class 4 felony.

The Recent Changes To Colorado’s Mandatory Sentencing Laws

Three bills were passed in the past several years (2015, 2016) that impact the infliction of mandatory sentencing. They were:

Colorado House Bill 15-1303 – which in 2015 removed the mandatory sentencing as a crime of violence for second degree assault committed against a peace officer, firefighter, or emergency medical service provider

Colorado Senate Bill 16-051 – which in 2016 removed the requirement that a person convicted of two or more separate, specified crimes of violence (aggravated robbery, second degree assault, or escape) arising out of the same incident be sentenced to consecutive prison terms.

And the subject of this article:

Colorado Senate Bill 16-102 – which in 2016 removed the mandatory term of incarceration for certain types of second degree assault or violations of bail bond conditions.

A Close Look At The Changes To Colorado’s Second Degree Assault Law 18-3-203

There are several ways to commit Second Degree Assault under Colorado Law. A closer look at the statute helps flush out those different ways of committing this crime.

As a result of the changes made by Senate Bill 16-051 in 2016, the method of committing Second Degree Assault outlined in Sections b, c, d and g NO LONGER REQUIRE MANDATORY PRISON SENTENCES AS OF 2016.

The Law Second Degree Assault 18-3-203

(1) A person commits the crime of assault in the second degree if:

….

(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or

(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or

(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or

…

(g) With intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another; or

[HMS – The major change is found in the Section below.]

(II) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406; except that, notwithstanding the provisions of section 18-1.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.

Understanding Plea Bargaining Second Degree Assault Cases In Colorado Why This Change Is So Important

To fully understand the significance of the 2016 major change in the law of mandatory sentenciing in Second Degree Assault cases – one needs to comprehend how plea bargaining works. Plea bargaining is all about weighing risks and benefits.

When a Defendant is charged with a Colorado crime of violence and his lawyer is aware that his client is subject to a mandatory prison sentence upon conviction at trial (the Judge must sentence the Defendant to prison upon a conviction) a criminal defense lawyer is placed in a very difficult position during negotiations.

Mandatory prison or mandatory sentencing laws change the playing field during plea bargaining negotiations.

When I started out as a young prosecutor in the early 1980’s mandatory minimum sentences were enacted following a perceived crime wave at the time. They were intended to force judges to mete out certain prison sentences essentially removing a Judge’s discretion to take into consideration mitigating factors that distinguish one Defendant from another.

Mandatory sentences allow prosecutors to have the ultimate ability to shape the outcome of any case – to dictate the sentence that will be imposed. Mandatory minimums allow prosecutors to “bludgeon defendants into effectively coerced plea bargains.”

Prosecutors already have almost complete power in charging and plea bargaining criminal cases. – Mandatory minimum sentences increase that concentration of power changing any opportunity for a Defendant in certain cases from taking a case to trial.

The “Trial Penalty”

The “trial penalty” is a phrase criminal defense lawyers use to describe the fact the sentence for a person who goes to trial is almost always harsher relative to sentences for those who agree to a plea bargain. Before the “invention” of mandatory minimum sentencing the “gap” between a plea bargained sentencing result and a post trial sentencing … was narrower, trials were less risky.

Today, a District Attorney with a weak case has the right to “leverage” a plea bargain by using the threat of mandatory prison to essentially coerce the person to accept a less than satisfactory plea deal.

The Impact Of Lifting Mandatory Sentencing In Colorado Second Degree Assault Cases

Prior to the change in Colorado’s Second Degree Assault law, if you were charged under sections b, ,c, d, or g in the statute (see above and below) upon a conviction, the mandatory sentencing provisions requiring a minimum of 5 years to 16 years in prison would be imposed.

In a case where a Defendant is unjustly charged the decision to go to trial to test the strength of the State’s case meant, upon conviction, not only a permanent felony conviction, it would mean the Defendant would actually be denied the right to seek a probation sentence even if the Defendant had a strong self defense case – had no prior criminal history and had lived an exemplary life prior to the charges being filed.

That has changed with addition of these words to Colorado’s Second Degree Assault law:

The Key Paragraph - Restoring Judge's Sentencing Discretion In Certain Second Degree Assault Cases

II) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406; except that, notwithstanding the provisions of section 18-1.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.

Summary And Conclusion – Second Degree Assault – 18-3-203 – Dropping Mandatory Sentences To Prison Changes Everything – Colorado Criminal Law

I am grateful to the work of organizations such as the Colorado Criminal Defense Bar’s lobbying arm for their hard work.

Carrie Thompson, lobbyist for the CCDB said this about the bill.

SB16-102 Elimination of Mandatory Sentences to Incarceration for Certain Crimes

Sen. Kerr (D) and Rep. Moreno (D)

“This was a CCDB bill. We were fortunate to have two great sponsors who worked hard at getting these bills through.

We hope this is just the beginning of much more sentencing reform to come. As a result of this bill, most Second Degree Assault crimes no longer carry a mandatory prison sentence. The types of second degree assault that are now probation eligible are:

• With the intent to cause bodily injury, caused serious bodily injury

• With the intent to cause bodily injury, caused bodily injury by means of a deadly weapon

• Recklessly caused serious bodily injury by means of a deadly weapon

• Caused bodily injury by means of strangulation

These second degree assaults are still considered crimes of violence, so if the judge sentences the person to prison, the range will be 5-16 years.”

Great result for a great organization.

The Complete Colorado Second Degree Assault Law – 18-3-203

§ 18-3-203. Assault in the Second Degree

(1) A person commits the crime of assault in the second degree if:

….

(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or

(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or

(c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or

(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or

(e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm; or

(f) While lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or, while lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent child, he or she knowingly and violently applies physical force against a person engaged in the performance of his or her duties while employed by or under contract with a detention facility, as defined in section 18-8-203(3), or while employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services.

A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender; except that, if the offense is committed against a person employed by the division in the department of human services responsible for youth services, the court may grant probation or a suspended sentence in whole or in part, and the sentence may run concurrently or consecutively with any sentences being served. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203(3), and who is required to report back to the detention facility at a specified time is deemed to be in custody.

(f.5) (I) While lawfully confined in a detention facility within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material.

(III) (A) As used in this paragraph (f.5), “detention facility” means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of the state of Colorado or any political subdivision of the state of Colorado.

(B) As used in this paragraph (f.5), “employee of a detention facility” includes employees of the department of corrections, employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are present in or in the vicinity of a detention facility and are performing services for a detention facility. “Employee of a detention facility” does not include a person lawfully confined in a detention facility.

(g) With intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another; or

(h) With intent to infect, injure, or harm another person whom the actor knows or reasonably should know to be engaged in the performance of his or her duties as a peace officer, a firefighter, an emergency medical care provider, or an emergency medical service provider, he or she causes such person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including by throwing, tossing, or expelling such fluid or material; or

(i) With the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

(2) (a) If assault in the second degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 6 felony.

(b) If assault in the second degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 4 felony.

(b.5) Assault in the second degree by any person under subsection (1) of this section without the circumstances provided in paragraph (a) of this subsection (2) is a class 3 felony if the person who is assaulted, other than a participant in the crime, suffered serious bodily injury during the commission or attempted commission of or flight from the commission or attempted commission of murder, robbery, arson, burglary, escape, kidnapping in the first degree, sexual assault, sexual assault in the first or second degree as such offenses existed prior to July 1, 2000, or class 3 felony sexual assault on a child.

(c) (I) If a defendant is convicted of assault in the second degree pursuant to paragraph (c.5) of subsection (1) of this section or paragraph (b.5) of this subsection (2), except with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. A defendant convicted of assault in the second degree pursuant to paragraph (b.5) of this subsection (2) with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, shall be sentenced in accordance with section 18-1.3-401(8)(e) or (8) (e.5).

(II) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406 ; except that, notwithstanding the provisions of section 18-1.3-406 , the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.

Second Degree Assault – 18-3-203 – Dropping Mandatory Sentences To Prison Changes Everything – Colorado Criminal Law

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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2018) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).

The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, canges constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

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Putting more than 36 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Second Degree Assault – 18-3-203 – Dropping Mandatory Sentences To Prison Changes Everything – Colorado Criminal Law.

Summary

Article Name

Second Degree Assault - 18-3-203 - Dropping Mandatory Sentences To Prison Changes Everything - Colorado Criminal Law.

Description

A major change on behalf of fairness in sentencing and plea bargaining was quietly enacted into law in 2016 with the passage of Colorado Senate Bill 16-102: Removing Mandatory Sentences for Second Degree Assault and Bail Bond Crimes. Prior to the change, a person convicted of certain types of second degree assault (and the violating bail bond conditions law) was required to be sentenced to a mandatory term of prison. The bill removed the mandatory term of incarceration requirement thus making the decision to take a case to trial much less of a risk.

Author

H. Michael Steinberg