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Colorado Supreme Court Limits Bottom End of Aggravated Sentencing Statute for Habitual Sex Offenders

by Christopher Zoukis

The Supreme Court of Colorado ordered that a habitual sex offender be resentenced because the trial court miscalculated the bottom end of the defendant’s sentence. The December 18, 2017, opinion clarified that there is an upper limit on the minimum end of a habitual sex offender’s sentence.

Ervin Isom was convicted of sexual assault on a child and adjudicated a habitual sex offender against children. The trial court sentenced him to an indeterminate prison term of 40 years to life. Isom appealed the sentence, arguing that it was illegal because the trial judge had concluded that there was no upper limit on the minimum portion of his sentence.

The court of appeals agreed, concluding that 36 years to life was the maximum permissible sentence.

The court of appeals noted that the statute governing aggravated sentences for habitual sex offenders, C.R.S. 18-1.3-1004(1)(c) (“Statute”), does not appear to prescribe a maximum at the bottom end of an enhanced, indeterminate sentence. The Colorado Supreme Court granted certiorari and affirmed.

Colorado uses an indeterminate sentencing scheme for felonies, including sex offenses. This requires a court, pursuant to statutory sentencing provisions, to set a minimum and maximum sentence. For a habitual sex offender, the Statute provides for a sentence at the bottom end of “at least” three times the presumptive maximum sentence of sexual assault of a child (six years) and, at the top end, life.

The trial court took the phrase “at least” at face value and concluded that there was no limitation on the minimum sentence. But the Colorado Supreme Court had previously determined that similar language in another sentencing statute was ambiguous. In Vensor v. People, 151 P.3d 1274 (Colo. 2007), the Supreme Court determined that there was an upper limit to the minimum end of an enhanced sentence for a general sex offense.

According to the Court in the present case, the analysis that applied in Vensor also applies to the Statute. Taking the trial court’s reading of the top end of a minimum sentence to its logical extreme would destroy the indeterminate nature of Colorado’s criminal sentencing scheme, reasoned the Court. Misreading the Statute in this way could lead to an “indeterminate” sentence of life-life, which could not be what the Legislature intended.

Turning to the specifics of the Statute, the Court concluded that the minimum sentence for a habitual sex offender could be no higher than triple the presumptive maximum, unless the trial court finds extraordinary aggravating circumstances, in which case the top end of the minimum would be six times the presumptive maximum.

Because the presumptive maximum for sexual assault of a child is six years in Colorado, Isom’s minimum sentence could be no more than 18 years, unless the trial court found extraordinary aggravating circumstances, in which case his minimum would be 36 years.

Accordingly, the Court affirmed the judgment of the court of appeals and remanded the case back to that court with instructions for the trial court to resentence consistent with this opinion. See: Isom v. People, 407 P.3d 559 (Colo. 2017). 

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Related legal case

Isom v. People



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