August 25, 2019

Colorado Court of Appeals: Duplicitous Charges Violate Equal Protection Clause Where Underlying Conduct Identical

The Colorado Court of Appeals issued its opinion in People v. Slaughter on Thursday, February 21, 2019.

Equal Protection—Felony Strangulation—Charging Options.

The prosecution charged defendant with second degree assault by strangulation under C.R.S. § 18-3-203(1)(i) for allegedly strangling the victim with his hands. The People later moved to add a new count under the crime of violence sentencing statute, C.R.S. § 18-1.3-406(2)(a)(I)(A), based on their assertion that defendant used his hands as a deadly weapon. The trial court dismissed the charged sentence enhancer as violating defendant’s equal protection rights. The People filed this interlocutory appeal.

Under the Colorado Constitution, if criminal statutes provide different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection unless there are reasonable differences between the proscribed behaviors. A prosecutor charging an accused with felony strangulation has multiple charging options under the Colorado criminal statutes. The crime can be charged under the first degree assault statute, C.R.S. § 18-3-202(1)(g), which requires proof that the accused caused serious bodily injury to the victim.If the prosecution does not want to prove serious bodily injury, it can charge the accused under the second degree assault statute, C.R.S. § 18-3-203. This statute has two charging options, (1)(b) or (1)(i), neither of which would require proof of serious bodily injury. Under (1)(b) proof of use of a deadly weapon is required. Unless charged with a crime of violence sentence enhancer, a strangulation charge under subsection (1)(i) would not require proof of use of a deadly weapon. The penalty available for strangulation charged under (1)(i) if charged as a crime of violence under C.R.S. § 18-1.3-406(2)(a)(I)(A) is substantially more severe than if an accused is charged under (1)(b), even though both would require proof of use of a deadly weapon.

Though prosecutors have discretion in charging decisions, the prosecution is not permitted to charge an accused in a way that would result in an equal protection violation if the defendant were found guilty and sentenced to a harsher penalty than another accused might receive for identical assault conduct.Here, the combination of the prosecution’s charge against defendant under C.R.S. § 18-3-203(1)(i) and the crime of violence sentence enhancer under C.R.S. § 18-1.3-406(2)(a)(I)(A) renders these statutory provisions unconstitutional as applied to defendant. Thus, the prosecution’s motion to charge defendant with a crime of violence sentence enhancer should have been denied, and the trial court did not err.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

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