Articles Posted in Post Conviction – Sentencing

Caryn J. Adams
Managing Attorney
The Gasper Law Group

To every rule, there is an exception. To the rule that no conviction may be sealed, the exception is criminal conviction records for some offenses involving controlled substances. Pursuant to C.R.S. 24-72-308.5, as of July 1, 2008, a person may petition the court to seal the conviction records for drug offenses at the petty, misdemeanor, or class 5 or 6 felony level. There are, as you might expect, several conditions to be met:

1) The petition has to be filed no sooner than ten years after the final disposition or end of probation, whichever is later; and
2) The petitioner cannot have been charged or convicted for any criminal offense in the intervening ten years; and
3) For convictions entered before July 1, 2008, the district attorney must consent to the sealing of the records.

There are also limitations concerning the types of drug offenses that are subject to sealing. A conviction for a class 5 or 6 felony for the sale, manufacturing, or dispensing of a controlled substance (or conspiracy, attempt, or possession with intent to do any of the above) cannot be sealed. What does that leave at the felony level? Pretty much, it leaves simple possession or attempted possession.

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Allen Gasper is the Senior Partner in the Gasper Law Group, Colorado Springs.

In considering potential plea offers in District Court cases in Colorado, a question arises about the possibility of reconsideration of sentence in the future and the best approach to establishing a “track record” for the court to consider in determining whether the defendant is a good candidate for reconsideration of sentence. Boot Camp provides a vehicle for proving a defendant’s acceptance of responsibility and desire to change in a manner sufficient to establish a positive view toward society reintegration.

As part of a plea agreement, the District Attorney may agree to allow the defendant to file a Colorado Criminal Procedure Rule 35(b) motion upon successful completion of the Colorado Department of Corrections Boot Camp Program. If the defendant qualifies (court recommendation is helpful) for the Boot Camp Program, the Executive Director of the Department of Corrections may assign an inmate to this regimented training program pursuant to C.R.S. §17-40-102(2). After successful completion of the program, the defendant would appear before the original sentencing court for reconsideration of sentence pursuant to the plea agreement. It is important to note that the Colorado Criminal Procedure Rule 35(b) Motion must be filed within one hundred twenty (120) days from the original sentencing date – asking the court to hold the motion in abeyance until the inmate has completed the program. Failure to file the Motion within the time period specified would preclude the defendant from asking for reconsideration of his sentence, regardless of defendant’s status in the Boot Camp Program.

Not every charge is eligible for the Boot Camp Program. Also, the original charge against the defendant is the charge that will control eligibility for acceptance to the program – regardless of the final charge to which the defendant pleads by agreement. This means that if the original charge filed against the defendant falls within the list of ineligible charges below, the defendant will be ineligible for the Boot Camp Program, even if the defendant pleads to an amended charge which would not necessarily preclude the defendant from the program.

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