By H. Michael Steinberg Colorado Drug Crime Criminal Defense Lawyer
September 15, 2015 – Colorado Criminal Law – Amendment 64 – What Happens When The Penalty For A Colorado Crime Changes? – A common question that I receive is the following: When there is a change in the criminal law – either the abolishment of a crime or a change in the penalty for that crime is – does the change apply retroactively to my conviction?
The recent enactment of Amendment 64 to the Colorado Constitution legalizing possession of marijuana for amounts 1 ounce or less is a perfect launching platform to discuss this complex area of the law.
Amendment 64 And The Decriminalization Of Small Amounts Of Marijuana
In 2012 Colorado citizens enacted Amendment 64 by way of referendum. At the time of the enactment the question arose as to whether the new law applied retroactively to decriminalize prior convictions for possession of less than one ounce of marijuana should be vacated.
The law provides (Section 16(3)) that possession of one ounce or less of marijuana and certain other acts “are not unlawful.”
The rule is this, under Colorado law, certain convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.”
Is Amendment 64 Retroactive?
Not to be coy – but the answer is “Yes and No.”
In construing a Constitutional amendment, the goal of the Courts of Colorado is to “determine and give effect to the will of the people in adopting it.” To do this, the Courts apply general rules of statutory construction in construing the new law – in this case a citizen-initiated measure.
While Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful,” Section 16(9) provides that all provisions of Amendment 64 “shall become effective upon official declaration of the vote hereon by proclamation of the governor . .”
Governor Hickenlooper made the proclamation in this case on December 10, 2012.
Analysis
Amendment 64, Section 16(3)(a) applies retroactively to convictions for possession of less than one ounce of marijuana that were pending appeal on December 10, 2012.
Under Sections 18-1-410(1)(f)(I), C.R.S., a convicted defendant to request post conviction relief when “there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.”
Similarly, under the case of People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974), the Colorado Supreme Court said this:
“The view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.”
If a person’s conviction for less than an ounce of marijuana was either under direct appeal or being challenged through post conviction motions at the time of the enactment of Amendment 64, that, and only that, convicted defendant is given the benefit of a retroactive application of the new law.
The “Thomas” Rule
The Thomas rule is simple. Under the Thomas rule a convicted criminal defendant receives the “benefit of amendatory legislation which became effective at any time before their conviction becomes final either on appeal or through a post conviction challenge judgment has entered.”
Amendment 64 was adopted in 2012 and it, “significant[ly] changed the law,” (§18-1-410(1)(f)(I)), eliminating the penalty for persons convicted of possessing one ounce or less of marijuana. Y applying the Thomas rule, a convicted Defendant should receive the benefit of this change and have his conviction vacated IF their conviction was not final as described above at the time of the enactment of the law.
The General Rule – New Criminal Laws – Sections 2-4-202 and 2-4-303
Two other Colorado statutes, also apply to amendatory legislation:
Section 2-4-202, C.R.S. “A statute is presumed to be prospective in its operation.”
Section 2-4-303, C.R.S. “The repeal . . . of any statute or part of a statute . . . shall not have the effect to release [or] extinguish . . . any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the repealing . . . act so expressly provides . . .
While these laws apply to general changes in both Colorado civil and criminal law, the Thomas Rule specifically holds that in criminal cases, a Defendant, notwithstanding these other laws, is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.”
The two laws above, apply generally to new laws with effective date clauses that state that the amendatory legislation either:
(1) apply only to offenses committed on or after the effective date, or
(2) do not apply to offenses committed prior to the effective date,
Sections 2-4-202 and 2-4-303 do NOT preclude the retroactive application of Amendment 64 Section 16(3) from applying to convictions that were not final on the date of the enactment of the new law.
Colorado Criminal Law – Amendment 64 – What Happens When The Penalty For A Colorado Crime Changes?
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Amendment 64 – What Happens When The Penalty For A Colorado Crime Changes?
