Motion for Reconsideration – Rule § 35(b) in Colorado

In Colorado, a motion for reconsideration is a request for a sentence reduction you make after being convicted and sentenced for a criminal offense. Also called 35(b) proceedings, the process gives you a second chance to argue for lesser penalties. In deciding whether to grant a 35(b) request for a lesser sentence, judges

• reexamine the relevant evidence and
• may even consider new evidence.

Some factors that may persuade a judge to lower your sentence include whether

1. you have been rehabilitated,
2. the punishment matches the crime, and
3. there are mitigating circumstances that put you in a more positive light.

The following flowchart summarizes the Rule 35(b) process. In this article, our Denver Colorado criminal defense attorneys will address the following key issues regarding motions for reconsideration in Colorado:

• 1. Overview
• 2. The Court Process
• 3. How to Win
• 4. How to File
• 5. When to File
• 6. If Motion Is Granted
• 7. If Motion Is Denied
• 8. Can sentence increase?
• 9. Immigration Benefits
• 10. Federal Law
• Additional Reading

1. Overview

Under Colorado Rule 35(b), a motion for reconsideration is when you ask the court to lessen your criminal sentence.¹ The motion is often called a “Rule 35b motion” or just a “35b motion”. Denver criminal defense attorney Michael Becker illustrates:

Example:  Gene from Denver gets convicted of the Colorado crime of selling 14 grams or less of cocaine, which is a level 3 drug felony. The judge sentences Gene to the maximum prison sentence of four years because he seemed unrepentant at his sentencing. In his motion for reconsideration, Gene argues (1) that this was only his first offense, (2) that he was still in the process of detoxing at his sentencing, and (3) that his behavior in prison so far has been impeccable. Based on these factors, the judge lowers his sentence to the minimum prison sentence of two years.

In the above example, the judge determined that Gene was entitled to a lighter sentence. Note that Gene’s arguments may not have swayed a different judge. Judges are under no obligation to grant a lesser sentence as long as the original sentence was lawful.

2. The Court Process

Anyone convicted of and sentenced to a crime in Colorado may file a motion for reconsideration. However, the judge has complete discretion over whether to reduce the punishment. You do not have to be sentenced to prison to be eligible to file a motion for reconsideration. You can file a 35(b) motion if you have been sentenced just to

• probation,
• fines, and/or
• classes.²

3. How to Win

Several reasons may justify a reduced sentence in Colorado. Some of the reasons include the following:

• The penalties were unduly harsh in light of the facts of the case.
• There are “mitigating factors” that warrant a laxer punishment (such as that you had a rough childhood, or you are repentant).
• It is in the public interest to grant you a lesser sentence.
• Your character has been rehabilitated by your time in prison so far.

Colorado courts may consider circumstances that have occurred after the sentencing that may be favorable to you. Examples of such circumstances are

• that you have been a model prisoner, or
• that you have taken responsibility.³

4. How to File

Motions for consideration must be made in writing. The motion may also include new evidence that has surfaced after the sentencing hearing in Colorado court. Once the motion for reconsideration is filed, the judge may rule on it with or without holding a hearing on the matter.⁴

5. When to File

When to file your motion for reconsideration depends on whether you appeal the trial verdict. If you do not appeal, the deadline for filing a motion for reconsideration is 126 days after you are sentenced. If you do appeal, the deadline is 126 days after the appellate decision.⁵ Courts are instructed to rule on motions for reconsideration within a “reasonable time.” Though if the court is slow to rule on the motion, you are obligated to make reasonable efforts to contact the court about handing down a decision. Otherwise, the court will consider the 35(b) motion “abandoned” and disregard it.⁶ Note that you should not pursue motions to reconsider and appeals at the same time. The motion will be moot if an appeal is pending and you filed a motion to reconsider. You need to decide, with your defense attorneys, whether to file an appeal or a motion to reconsider first.⁷

6. If Motion is Granted

If your motion for reconsideration is granted, the judge will vacate the original sentence and hand down a lesser punishment. Depending on the case, this lesser sentence may include a

• shorter prison sentence,
• probation,
• fines, and/or
• classes.⁸

7. If Motion is Denied

If your motion for reconsideration is denied, then the original penalties will remain in effect. However, you may still appeal the ruling.⁹

8. Can sentence increase?

No. Judges may not increase the sentence when you file a motion for reconsideration.¹⁰

9. Immigration Benefits

A successful motion for reconsideration can potentially stop deportation. Legal aliens in Colorado who have been convicted of deportable crimes are susceptible to being removed from the U.S. However, if the court significantly reduces the sentence after a motion for reconsideration, the conviction may no longer be considered deportable.¹¹ Learn more about the criminal defense of immigrants in Colorado.

10. Federal Law

If you are sentenced in federal court—whether in Colorado or another state—you can pursue a sentence reduction by helping the government with its criminal investigation. This process, known as “substantial assistance sentencing reductions,” may result in significant reductions in sentence, sometimes even below the mandatory minimum. These reductions benefit the government by enabling the collection of valuable evidence and you by offering a pathway to reduced sentences. In some cases, these reductions lead to probation or other lenient penalties, depending on the case and your level of cooperation. Substantial assistance reductions may be pursued either:

• before sentencing through a 5K motion or
• after sentencing via a Rule 35(b) motion.

5K Motions (Pre-Sentencing)

A 5K motion allows the court to depart from standard sentencing guidelines when the government acknowledges that you have provided substantial assistance before sentencing. Factors courts consider in these reductions include:

• The significance and reliability of your assistance;
• The extent and nature of the cooperation;
• Risks or harm you or your family may face; and
• The timeliness of your assistance.¹²

Rule 35(b) Motions (Post-Sentencing)

After sentencing, you may seek a sentence reduction by filing a Rule 35(b) motion. This motion typically applies when you helped the government within one year of your sentencing. In some instances, courts will grant you a reduction more than one year after your sentencing if you provide assistance:

• Involves information that becomes useful to the government more than one year after sentencing, or
• Could not have been reasonably anticipated as useful any earlier.¹³

Additional Reading

For more in-depth information about sentence reductions, refer to these scholarly articles:

• Reviewing Leniency – The University of Chicago Law Review.
• The Sentencing Court’s Discretion to Depart downward in Recognition of a Defendant’s Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement – Indiana Law Review.
• Sentence Reduction as a Remedy for Prosecutorial Misconduct – Georgetown Law Journal.
• Race, remorse, and sentence reduction: Is saying you’re sorry enough? – Justice Quarterly.
• First Thoughts about Second Look and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision – University of Toledo Law Review.

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Legal References