(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;
(B) Murder;
(C) First or second degree assault;
(D) Kidnapping;
(E) A sexual offense pursuant to part 4 of article 3 of this title;
(F) Aggravated robbery;
(G) First degree arson;
(H) First degree burglary;
(I) Escape;
(J) Criminal extortion;
(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.