The Colorado Supreme Court on Monday upheld a 29-year prison sentence for a woman who killed a man and injured two others while driving drunk west of Lyons seven years ago.
In the same ruling, the justices declined to add DUI vehicular homicide to the handful of crimes that are automatically considered serious under a unique legal designation that makes it more difficult for people to challenge those sentences as disproportionate.
The justices took on the case after Kari Mobley Kennedy, 57, challenged her 29-year prison sentence in a September 2018 fatal DUI crash.
Kennedy was driving drunk on U.S. 36 in Larimer County when she crossed into oncoming traffic and struck another vehicle, killing the driver, 22-year-old Denver resident Benjamin Shettsline. Two other people in the vehicle were injured.
Kennedy’s blood-alcohol levels remained three times over the legal limit hours after the crash, which was her fourth drinking-and-driving offense. She later agreed to plead guilty and accept a sentence of between eight and 33 years as part of the deal. She was sentenced to 24 years on a DUI vehicular homicide conviction and another five years for vehicular assault.
Kennedy challenged that sentence in 2021, alleging that the punishment was disproportional to the crime. That challenge triggers a particular review process under Colorado law, and the first step of that process is to consider the gravity of the crime.
Typically, that step involves a review of the particulars of the case, including the harm caused to the victim or society, and the defendant’s culpability and motive. However, a handful of crimes — including robbery, burglary and murder — are considered to be automatically serious enough to skip that first step of the review process.
It’s a shortcut unique to Colorado law, and crimes that are considered to be “per se grave or serious” are all but “impervious” to proportionality challenges — that is, a challenge like Kennedy’s that claims the punishment does not fit the crime, the justices wrote.
“If it is per se grave, that is a factor in favor of upholding a sentence,” said Chris Jackson, a Colorado attorney at Holland and Hart not involved in the case. “So it goes against the criminal defendant in that way — the defendant can no longer say, ‘In my particular case, here are reasons why the conduct isn’t that grave.'”
The justices on Monday found that DUI vehicular homicide should not join the list of automatically serious crimes because state law doesn’t require the defendant to intend to commit the crime to be convicted. Since intent is not part of the crime, it makes it more difficult to make an across-the-board determination of gravity for all DUI vehicular homicide cases, the justices found.
“We don’t mean to diminish the significance of vehicular homicide-DUI,” Justice William Hood wrote in the majority opinion. “To state the obvious, the harm is enormous because it necessarily involves death. But that harm alone — no matter how tragic — is insufficient to make the offense per se grave or serious. Other crimes, such as manslaughter, criminally negligent homicide, and careless driving resulting in death, also require evidence that the defendant caused a death, but they still have not been designated as per se grave or serious.”
Four justices joined the majority; Chief Justice Monica Márquez and Justice Brian Boatright concurred only in part. Justice Melissa Hart, who has been on a leave of absence since Oct. 28, did not participate.
Boatright and Márquez agreed that Kennedy’s prison sentence was appropriate, but believed DUI vehicular homicide should be included among the automatically serious crimes.
“In every instance of vehicular homicide-DUI, a person needlessly dies because the defendant made the voluntary choice to become intoxicated and then drive a motor vehicle,” Boatright wrote. “What is more grave or serious than a person needlessly dying due to the conduct of a drunk driver?”
Separately, Justices Carlos Samour and Richard Gabriel argued that Colorado courts should get rid of the automatic designation altogether, arguing the shortcut actually undermines fairness for proportionality claims.
“In short, for more than three decades, Colorado has adhered to the idea that defendants who stand convicted of crimes that our appellate courts have deemed per se grave or serious are only entitled to a superficial proportionality review of their sentences,” Samour wrote. “There are strong reasons to believe it is time to deep-six this concept.”
Sign up to get crime news sent straight to your inbox each day.
The post Colorado Supreme Court upholds 29-year DUI vehicular homicide sentence, declines to classify crime as ‘grave or serious’ appeared first on Denver Post