Section 18-1.3-406 - Mandatory sentences for violent crimes - definitions(1)(a) Any person convicted of a crime of violence shall be sentenced pursuant to section 18-1.3-401 (8) to the department of corrections for a term of incarceration of at least the midpoint 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), without suspension; except that, within ninety-one days after the person has been placed in the custody of the department of corrections, upon the request of the defendant, prosecution, or the court, 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 that 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 the person's 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 the judge's decision and shall advise the administrator of the unusual and extenuating circumstances that justified the modification. The state court administrator shall maintain a record, which is open to the public, summarizing all modifications of sentences and the grounds therefor for each judge of each district court in the state.(b) Except as described in subsection (1)(e) of this section, for offenses committed on or after July 1, 2023, a court shall sentence a person convicted of two or more separate crimes of violence arising out of the same incident so that the person's sentences are served consecutively rather than concurrently; except that if the person has not previously requested a review of the term of years of the mandatory sentences pursuant to subsection (1)(a) of this section, the person may petition the court for a modification of the sentences imposed if at least two calendar years but no more than five calendar years after the entry of final judgment of conviction or sentence have passed. The person is entitled to an evidentiary hearing on the petition for modification of sentence, and the court shall appoint counsel for the defendant for the hearing. The court shall serve an order of appointment on the office of state public defender, which shall represent the defendant or notify the court of a conflict. The court shall allow counsel to supplement the petition.(c) Following the evidentiary hearing authorized in subsection (1)(b) of this section, the court may modify the terms of the sentence if the court finds substantial mitigating factors surrounding the case and if the person has demonstrated substantial actions toward rehabilitation as evidenced by engagement in positive programming; assigned work; treatment, when available; and behavior that is compliant with the rules of the facility or facilities where the person is or was placed. A modification ordered by the court may include the imposition of concurrent sentences or modification of the length of the sentences to incarceration.(d) Notwithstanding the provisions of subsection (1)(a) of this section, 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 in the presumptive range specified in section 18-1.3-401 (1)(a)(V)(A) or (1)(a)(V) (A.1) up to a maximum of the person's natural life, as provided in section 18-1.3-1004 (1).(e) The court may require a defendant to serve the defendant's sentences concurrently rather than consecutively if the defendant is convicted of two or more separate crimes of violence arising out of the same incident and:(I) One of the crimes is:(A) Aggravated robbery, as described in section 18-4-302;(B) Assault in the second degree, as described in section 18-3-203; or(C) Escape, as described in section 18-8-208; or(II) The parties agreed to waive ineligibility for concurrent sentences; or(III) The following factors are proven by a preponderance of the evidence by the defendant or stipulated by the parties at the sentencing hearing:(A) The defendant has no prior felony convictions for a victim rights offense pursuant to section 24-4.1-302; and(B) The defendant did not use or possess a firearm or explosive in the commission of the offense or threaten the use of a firearm or explosive during the commission of the offense; and(C) The defendant's action did not result in serious bodily injury or death.(2)(a)(I) "Crime of violence" means any of the crimes specified in subparagraph (II) of this paragraph (a) committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person: (A) Used, or possessed and threatened the use of, a deadly weapon; or(B) Caused serious bodily injury or death to any other person except another participant.(II) Subsection (2)(a)(I) of this section applies to the following crimes: (A) Any crime against an at-risk adult or at-risk juvenile;(C) First or second degree assault;(E) A sexual offense pursuant to part 4 of article 3 of this title;(H) First degree burglary;(K) First or second degree unlawful termination of pregnancy;(L) Human trafficking for involuntary servitude of an adult or a minor in violation of section 18-3-503; or(M) Human trafficking for sexual servitude of an adult or a minor in violation of section 18-3-504.(b)(I) "Crime of violence" also means 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. For purposes of this subparagraph (I), "unlawful sexual offense" shall have the same meaning as set forth in section 18-3-411 (1), and "bodily injury" shall have the same meaning as set forth in section 18-1-901 (3)(c).(II) The provisions of subparagraph (I) of this paragraph (b) shall apply only to felony unlawful sexual offenses.(c) As used in this section, "at-risk adult" has the same meaning as set forth in section 18-6.5-102 (2), and "at-risk juvenile" has the same meaning as set forth in section 18-6.5-102 (4).(3) In any case in which the accused is charged with a crime of violence as defined in subsection (2)(a) of this section, the indictment or information shall so allege in a separate count, even though the use or threatened use of such deadly weapon or infliction of such serious bodily injury or death is not an essential element of the crime charged.(4) The jury, or the court if no jury trial is had, in any case as provided in subsection (3) of this section shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime or whether such serious bodily injury or death was caused by the accused. If the jury or court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was caused by the accused, the penalty provisions of this section shall be applicable.(5) In any case in which the accused is charged with a crime of violence as defined in subsection (2)(b)(I) of this section, the indictment or information shall so allege in a separate count, even though the use of threat, intimidation, or force or the infliction of bodily injury is not an essential element of the crime charged.(6) The jury, or the court if no jury trial is had, in any case as provided in subsection (5) of this section shall make a specific finding as to whether the accused did or did not use threat, intimidation, or force during the commission of such crime or whether such bodily injury was caused by the accused. If the jury or court finds that the accused used threat, intimidation, or force or that such bodily injury was caused by the accused, the penalty provisions of this section shall be applicable.(7)(a) In any case in which the accused is charged with a crime of violence as defined in this section and the indictment or information specifies the use of a dangerous weapon as defined in sections 18-12-101 and 18-12-102, or the use of a semiautomatic assault weapon as defined in paragraph (b) of this subsection (7), upon conviction for said crime of violence, the judge shall impose an additional sentence to the department of corrections of five years for the use of such weapon. The sentence of five years shall be in addition to the mandatory sentence imposed for the substantive offense and shall be served consecutively to any other sentence and shall not be subject to suspension or probation.(b) For the purposes of this subsection (7), "semiautomatic assault weapon" means any semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition.Amended by 2024 Ch. 54,§ 2, eff. 4/11/2024.Amended by 2023 Ch. 297,§ 1, eff. 7/1/2023.Amended by 2018 Ch. 153, § 3, eff. 4/23/2018.Amended by 2016 Ch. 210, § 124, eff. 7/1/2016.Amended by 2016 Ch. 85, § 1, eff. 7/1/2016.Amended by 2016 Ch. 210, § 29, eff. 6/6/2016.Amended by 2013 Ch. 372, § 7, eff. 7/1/2013.Amended by 2013 Ch. 233, § 11, eff. 5/16/2013.L. 2002: Entire article added with relocations, p. 1403, § 2, effective October 1. L. 2003: (1), (2)(a)(II)(E), and (7)(a) amended, pp. 1424, 1432, §§ 3, 21, effective April 29. L. 2004: (1) amended, p. 634, § 2, effective August 4. L. 2012: (1)(a) amended, (SB 12-175), ch. 208, p. 865, § 110, effective July 1. L. 2013: (2)(c) amended, (SB 13-111), ch. 233, p. 1127, § 11, effective May 16; (2)(a)(II)(I) and (2)(a)(II)(J) amended and (2)(a)(II)(K) added, (HB 13-1154), ch. 372, p. 2193, § 7, effective July 1. L. 2016: (3) and (5) amended, (SB 16-189), ch. 210, p. 760, § 29, effective June 6; (1)(a) amended and (1)(c) added, (SB 16-051), ch. 85, p. 241, § 1, effective July 1; IP(1)(c) amended, (SB 16-189), ch. 210, p. 798, § 124, effective July 1. L. 2018: (1)(b) amended, (HB 18-1029), ch. 153, p. 1087, § 3, effective April 23.This section is similar to former § 16-11-309 as it existed prior to 2002.
(1) For the sentencing of a defendant for multiple counts arising from the same act, see § 18-1-408 (3). (2) For the legislative declaration in the 2013 act amending subsections (2)(a)(II)(I) and (2)(a)(II)(J) and adding subsection (2)(a)(II)(K), see section 1 of chapter 372, Session Laws of Colorado 2013. For the legislative declaration in the 2013 act amending subsection (2)(c), see section 1 of chapter 233, Session Laws of Colorado 2013.