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N Cal Attorney
N Cal Attorney, Lawyer
Category: Criminal Law
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Experience:  Since 1983
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A 22 year old sentenced to 48 years, this was his 3rd felony

Customer Question

A 22 year old sentenced to 48 years, this was his 3rd felony conviction the DA filed habitual criminal charges on him. How could I convince an appellate judge that his sentence is grossly disproportionate to his crime and that the Judge did not adequately consider his upbringing and other problems in life. Mother died of an overdose, foster care he was physically and sexually abused.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  N Cal Attorney replied 6 years ago.
You can raise the argument that this is cruel and unusual punishment, but whether that works may depend on what the prior convictions were for. You need an attorney to handle the appeal and see if there is any basis to reverse the conviction.
Did the trial attorney bring out all relevant information at the sentencing? If not, ineffective assistance of counsel might be one of the grounds for the appeal.
Customer: replied 6 years ago.
How after the appeal is filed and court date is set, by the way the other two charges were one at 18 for drug possession and at 19 he got drug distribution charge. Not happy with the first answer. I feel this young man will spend the best part of his life in prison. I believe his 8th Amendment has been dismissed by the Judge and you do remember The English common law prohibitaed excessive punishments adopted in 1689. (15,16,17 and 18. Look it up. Trial attorney brought up every heatbreaking detail of this young man.
Customer: replied 6 years ago.
Are you still thinking? Sorry I just have a busy night, I have so much running through my mind.
Customer: replied 6 years ago.
Are you still thinking? Sorry I just have a busy night, I have so much running through my mind. I'M going to turn off the computer, I have to go out. Sorry I don't have any more time to wait.
Expert:  N Cal Attorney replied 6 years ago.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=1998sc%5Csc0608a&invol=1 is a Colorado Supreme Court case Velarde v. Zavaras from 1998 where the court upheld the constitutionality of the Colorado habitual criminal law. I agree this is an excessive punishment but it will be an uphill battle to convince the courts.
I am not happy with this answer either, but sometimes I have to tell people bad news.

CRS 18-1.3-801-804 is the habitual criminal statute, see http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp= The statute does allow the governor to grant clemency, but I urge you to pursue the appeal and try to get the conviction reversed. Also if there is any way to attack either of the prior convictions by filing a petition for writ of habeas corpus, that may be worth pursuing. If you could knock out one of the priors he would not be sentenced as a habitual criminal for the new charge.

I hope this information is helpful.

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N Cal Attorney
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