First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 13-0519.01 Michael Dohr x4347 HOUSE BILL 13-1148 HOUSE SPONSORSHIP Foote, SENATE SPONSORSHIP Roberts, House Committees Senate Committees Judiciary Appropriations A BILL FOR AN ACT Concerning changes to aggravated sentencing provisions. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill repeals the extraordinary risk sentencing enhancer. The bill makes certain child abuse crimes and stalking crimes a crime of violence. Under current law there are numerous mandatory sentences in which the court is required to sentence to at least the midpoint of the presumptive range. The bill changes that sentencing requirement to at least the minimum of the presumptive range. The bill increases the maximum range for class 3 through 6 felony crimes of violence. The bill makes conforming amendments. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 18-1.3-401, amend (8) (a) introductory portion, (8) (d) (I), (8) (e) (I), (8) (e.5), (8) (g), and (13) (a) introductory portion as follows: 18-1.3-401. Felonies classified - presumptive penalties. (8) (a) The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony forty-eight years for a class 2 felony, thirty-two years for a class 3 felony, sixteen years for a class 4 felony, eight years for a class 5 felony, and four years for a class 6 felony without suspension: (d) (I) If the defendant is convicted of the class 2 or the class 3 felony of child abuse under section 18-6-401 (7) (a) (I) or (7) (a) (III), the court shall be required to sentence the defendant to the department of corrections for a term of at least the midpoint minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of that class felony forty-eight years for a class 2 felony or thirty-two years for a class 3 felony without suspension. (e) (I) If the defendant is convicted of the class 2 felony of sexual assault in the first degree under section 18-3-402 (3), commission of which offense occurs prior to November 1, 1998, the court shall be required to sentence the defendant to a term of at least the midpoint minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of that class of felony forty-eight years for the class 2 felony without suspension. (e.5) If the defendant is convicted of the class 2 felony of sexual assault under section 18-3-402 (5) or the class 2 felony of sexual assault in the first degree under section 18-3-402 (3) as it existed prior to July 1, 2000, commission of which offense occurs on or after November 1, 1998, the court shall be required to sentence the defendant to the department of corrections for an indeterminate sentence of at least the midpoint minimum in the presumptive range for the punishment of that class of felony up to the defendant's natural life. (g) If the defendant is convicted of class 4 or class 3 felony vehicular homicide under section 18-3-106 (1) (a) or (1) (b), and while committing vehicular homicide the defendant was in immediate flight from the commission of another felony, the court shall be required to sentence the defendant to the department of corrections for a term of at least the midpoint minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of the class of felony vehicular homicide of which the defendant is convicted thirty-two years for a class 3 felony or sixteen years for a class 4 felony without suspension. (13) (a) The court, if it sentences a defendant who is convicted of any one or more of the offenses specified in paragraph (b) of this subsection (13) to incarceration, shall sentence the defendant to a term of at least the midpoint minimum, but not more than twice the maximum, of the presumptive range authorized for the punishment of the offense of which the defendant is convicted forty-eight years for a class 2 felony, thirty-two years for a class 3 felony, sixteen years for a class 4 felony, eight years for a class 5 felony, and four years for a class 6 felony without suspension if the court makes the following findings on the record: SECTION 2. In Colorado Revised Statutes, repeal 18-1.3-401 (10). SECTION 3. In Colorado Revised Statutes, 18-1.3-406, amend (1) (a), (1) (b), and (2) (a) (II) (I); and add (2) (a) (II) (K), (2) (a) (II) (L), and (2) (a) (II) (M) as follows: 18-1.3-406. Mandatory sentences for violent crimes. (1) (a) Any person convicted of a crime of violence shall be sentenced pursuant to the provisions of section 18-1.3-401 (8) to the department of corrections for a term of incarceration of at least the midpoint minimum in, but not more than twice the maximum of the presumptive range provided for such offense in section 18-1.3-401 (1) (a), as modified for an extraordinary risk crime pursuant to section 18-1.3-401 (10) but not more than forty-eight years for a class 2 felony, thirty-two years for a class 3 felony, sixteen years for a class 4 felony, eight years for a class 5 felony, and four years for a class 6 felony without suspension. Except that, within ninety-one days after he or she has been placed in the custody of the department of corrections, the department shall transmit to the sentencing court a report on the evaluation and diagnosis of the violent offender, and the court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence, effective not earlier than one hundred nineteen days after his or her placement in the custody of the department. Such modification may include probation if the person is otherwise eligible therefor. Whenever a court finds that modification of a sentence is justified, the judge shall notify the state court administrator of his or her decision and shall advise said administrator of the unusual and extenuating circumstances that justified such modification. The state court administrator shall maintain a record, which shall be open to the public, summarizing all modifications of sentences and the grounds therefor for each judge of each district court in the state. A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently. (b) Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint minimum in the presumptive range specified in section 18-1.3-401 (1) (a) (V) (A) up to a maximum of the person's natural life, as provided in section 18-1.3-1004 (1). (2) (a) (II) Subparagraph (I) of this paragraph (a) applies to the following crimes: (I) Escape; or (K) Any violation of section 18-6-401 (7) (a) (I); (L) Any violation of section 18-6-401 (7) (a) (III); or (M) Any violation of section 18-3-602 (3) (b). SECTION 4. In Colorado Revised Statutes, 18-1.3-1004, amend (1) (b) as follows: 18-1.3-1004. Indeterminate sentence. (1) (b) If the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 18-1.3-406, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the midpoint minimum in the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. SECTION 5. In Colorado Revised Statutes, 18-3-602, repeal (4) and (9) as follows: 18-3-602. Stalking - penalty - definitions - Vonnie's law. (4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). (9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 18-6-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently. SECTION 6. In Colorado Revised Statutes, 18-3-405.6, amend (2) (b) introductory portion as follows: 18-3-405.6. Invasion of privacy for sexual gratification. (2) (b) Invasion of privacy for sexual gratification is a class 6 felony and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3-401 (10) if either of the following circumstances exist: SECTION 7. In Colorado Revised Statutes, 18-4-302, amend (3) as follows: 18-4-302. Aggravated robbery. (3) Aggravated robbery is a class 3 felony. and is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). SECTION 8. In Colorado Revised Statutes, 18-6-401, amend (7.3) as follows: 18-6-401. Child abuse. (7.3) Felony child abuse is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). Misdemeanor child abuse is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). SECTION 9. In Colorado Revised Statutes, 18-18-405, amend (3) (a) and (7); and repeal (3.5) as follows: 18-18-405. Unlawful distribution, manufacturing, dispensing, or sale. (3) (a) Unless a greater sentence is required pursuant to the provisions of another statute, any person convicted pursuant to subparagraph (I) of paragraph (a) of subsection (2) of this section for knowingly manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, or inducing, attempting to induce, or conspiring with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute an amount that is or has been represented to be: (I) At least twenty-five grams or one ounce but less than four hundred fifty grams of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for at least the minimum term of incarceration in the presumptive range provided for such offense in section 18-1.3-401 (1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for at least the minimum term of incarceration in the presumptive range provided for such offense in section 18-1.3-401 (1) (a) as modified pursuant to section 18-1.3-401 (10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute; (II) At least four hundred fifty grams or one pound but less than one thousand grams of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for a term of at least the midpoint minimum of the presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401 (1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for a term of at least the midpoint minimum of the presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401 (1) (a) as modified pursuant to section 18-1.3-401 (10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute; (III) One thousand grams or one kilogram or more of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401 (1) (a) with regard to offenses other than manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute, and for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1.3-401 (1) (a) as modified pursuant to section 18-1.3-401 (10) with regard to manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture, dispense, sell, or distribute. (3.5) The felony offense of unlawfully manufacturing, dispensing, selling, distributing, or possessing with intent to unlawfully manufacture, dispense, sell, or distribute a controlled substance is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). (7) Notwithstanding the provisions of subsection (2) of this section, and except as otherwise provided in sub-subparagraph (B) of subparagraph (I) of paragraph (a) of subsection (2) or paragraph (a) of subsection (2.5) of this section, a person who violates subsection (1) of this section by selling, dispensing, or distributing a controlled substance other than marijuana or marijuana concentrate to a minor under eighteen years of age and who is at least eighteen years of age and at least two years older than the minor commits a class 3 felony and, unless a greater sentence is provided under any other statute, shall be sentenced to the department of corrections for a term of at least the minimum, but not more than twice the maximum, of the presumptive range provided for such offense in section 18-1.3-401 (1) (a). as modified pursuant to section 18-1.3-401 (10). SECTION 10. In Colorado Revised Statutes, 18-18-406.8, amend (2) introductory portion as follows: 18-18-406.8. Unlawful distribution, manufacturing, dispensing, or sale of cathinones. (2) A person who violates subsection (1) of this section commits a class 3 felony and shall be sentenced as provided in section 18-1.3-401; except that, unless a greater sentence is provided under any other statute, the person shall be sentenced to the department of corrections for a term of at least the minimum, but not more than twice the maximum, of the presumptive range provided for the offense in section 18-1.3-401 (1) (a) as modified pursuant to section 18-1.3-401 (10), if the person is at least eighteen years of age and: SECTION 11. In Colorado Revised Statutes, 18-18-412.7, amend (2) as follows: 18-18-412.7. Sale or distribution of materials to manufacture controlled substances. (2) A violation of this section is a class 3 felony. A violation of this section is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). SECTION 12. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.