Colorado court rules some pot convictions can be overturned

March 14, 2014

Some Colorado residents convicted of possessing small amounts of marijuana can ask for their convictions to be overturned because of the state’s recent legalization of the drug, its second-highest court ruled Thursday. The decision has prompted a firestorm of criticism from opponents of marijuana legalization, including the state’s attorney general.

In a unanimous ruling, a three-judge panel of the Colorado Court of Appeals found that a woman whose 2011 conviction for possessing cannabis had been under appeal was entitled to have her sentence and conviction overturned because of a "significant change in the law."

Colorado’s Amendment 64, which decriminalized the possession of an ounce or less of marijuana, took effect in December 2012.

The panel agreed with defense attorneys who argued that the marijuana law should be applied retroactively. While noting that laws generally are forward-looking, the judges said there were some legal exceptions.

"The general presumption of prospective application, however, is subject to a doctrine established by our General Assembly and Supreme Court enabling a defendant to benefit retroactively from a significant change in the law," Judge Mary Hoak wrote in the 16-page opinion.

The ruling could affect hundreds of people who were given jail terms for petty marijuana possession, and some inmates could be released, said Brian Vicente, one of the amendment's authors. "This is a huge victory," he said.

Vicente said Colorado prosecuted as many as 9,000 cases a year for marijuana possession. After it was decriminalized, a number of appeals were still in the courts.

The ruling came in the case of Brandi Jessica Russell, who was convicted in Grand County of possessing one gram or less of methamphetamine, possession of marijuana concentrate and possession of less than an ounce of marijuana.

Her attorney, Brian Emeson, said Thursday that the ruling is another indication the "tide is turning" on the nationwide attitude toward possession of small amounts of pot.

Emeson said he still handles a number of marijuana appeals, which shows prosecutors have not backed off.

"This ruling shows it would be wise for them to focus on more pressing matters," he said.

Sparking controversy

Colorado Attorney General John Suthers issued a statement on Thursday announcing plans to appeal the ruling because of the implications it could have on other cases not involving marijuana. Suthers’ main argument is that the ruling does not apply to previous convictions because the amendment legalizing marijuana in the state does not specifically say it can be applied retroactively.

"Well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated an intent to require such retroactive application," the statement reads.

"That was not the case with Amendment 64."

Suthers said the impact of the ruling on marijuana cases would be "very limited given that possession of an ounce or less of marijuana was already a petty offense," and that it would be "highly unlikely that there is anyone incarcerated at this time" solely because of possessing less than one ounce of marijuana concentrate.

Russell was sentenced in August 2011 to four years of supervised probation and 192 hours of community service, plus a suspended 90-day jail term. The appeals court overturned the convictions and sentences for possession of marijuana Thursday and sent the case back to the trial courts.

Russell and prosecutors in her case couldn't be immediately reached for comment.

In the ruling, the judges said Amendment 64 didn't include a provision for throwing out convictions imposed before its passage. However, they said state law allows a defendant to receive post-conviction relief "if there has been a significant change in the law." They said Amendment 64 meets that requirement.

They compared the amendment to lawmakers' decision in the 1970s to make marijuana possession a misdemeanor punishable by up to a year in jail, down from a maximum sentence of 15 years, under a statute passed a decade earlier. At the time, the court said defendants were entitled to appeal their convictions after that change.

Marijuana advocates cheered Thursday's ruling but said it won't affect most marijuana convicts.

"If I had a marijuana conviction 10 years ago, that doesn't go away," said Sean McAllister, a spokesman for the Colorado chapter of the National Organization for the Reform of Marijuana Laws, or NORML.

McAllister is a criminal defense attorney who said most people don't appeal pot convictions.

"This is the right legal decision, but we are talking about people who are disproportionately poor, minorities, unlikely to pursue an appeal," McAllister said.

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