CAN YOUR CRIMINAL RECORD EFFECT NEW FELONY CHARGES?
Will a prosecutor or judge in Colorado look at your criminal record if you have new criminal charges? You probably know the answer: Heck yes. Prosecutors and judges rely on rap sheets in deciding sentences and in some cases a prior criminal case can lead to enhanced criminal charges. The bottom line is that your past can and will come back to haunt you.
Prior Criminal Record and Convictions Used at Trial
One of the ways in which prosecutors use criminal convictions is at trial and the Colorado Rules of Evidence permit this, with some exceptions. Rule of Evidence 404(b) allows “prior bad acts of an accused” for a few specific purposes. Those instances include:
motive
opportunity
intent
preparation
plan
knowledge
identity, or
absence of mistake or accident
As an example, take the case of an arson criminal charge with the defense of mistake. “I didn’t burn this house down, it was an accident.” Prosecutors will try to introduce at trial prior arson convictions to show that this particular arson was no mistake. In domestic violence charges, prosecutors use 404(b) all the time. If there are any prior instances of domestic violence (assaults, harassment, etc.), those instances can come.
And here is the warning, there does not need to be an actual conviction for the prior acts to be admissible at trial. In a recent domestic violence case we defended, the judge in Arapahoe County allowed the district attorney to describe to the jury some previous domestic violence allegations even when the police were never even called in those instances.
Sentence Increase and Habitual Offenses
The most obvious way in which a criminal rap sheet can come into play is through sentencing. Judges and district attorneys primarily rely on a criminal record in deciding the type and length of sentencing. If you have done jail or prison time in the past, you must expect that a judge will look to an increase the amount of time in custody.
In some instances, prior convictions can have devastating effects. Many counties in Colorado file habitual offense charges for people with multiple felony convictions. These counties include Denver, Arapahoe, Adams, Jefferson, Douglas, Larimer, and El Paso. However, these types of charges are most common in Arapahoe County and, while their use has decreased recently, the filing of these charges can be used as a negotiation threat.
Basically, habitual charges are Colorado’s version of the “three strikes” laws in other places such as Colorado. Certain felony charges qualify to be used as the enhancers and when they apply, potential sentences can get multiplied. For instance, let’s say a person is charged with an F3 felony for burglary, where the presumptive sentence is 4-12 years prison. If the defendant has two qualifying prior felonies, then with habitual charges, the prison sentence after conviction is 36 years. If there are three prior felonies, then the sentence is 48 years.
How Do I Fight Against the Stigma of Past Criminal Convictions?
Even person has a story and the same applies for prior criminal charges. The first step is to describe to the prosecutor and the judge what really happened in the prior case. Sometimes, the criminal charges itself sounds worse than the actual crime. For instance, I have represented clients who have burglary convictions in their past but when you investigate the actual event, I discovered that they plead to incorrect charges. In truth, the actual instance was not really a burglary. Similarly, I represented a woman charged with a felony burglary in Arapahoe County but after looking at the actual paperwork in the case, I discovered that the “burglary” was a shoplifting charged from a department store in Denver. Unfortunately, the client plead guilty without an attorney after an overzealous prosecutor wouldn’t make a reasonable offer.
Each case is different but the only way to combat the use of prior convictions is to investigate and aggressively use information to put the previous conduct in its proper light.