District Court, 17th Judicial District

Broomfield County Justice Center DATE FILED: January 18, 2019 4:43 PM
CASE NUMBER: 2017CR31
17 DesCombes Drive
Broomfield, CO 80020

THE PEOPLE OF THE STATE OF COLORADO

vs.

JOSEPH MARTIN TUMPKIN,

Defendant,  COURT USE ONLY 

Case Number: 2017 CR 31

ORDER

This matter comes before the Court for consideration of a proposed plea
disposition. The Court has reviewed the Victim’s Objection (filed on December 10,
2018); the Defendant’s Argument in Support of Proposed Disposition, and
attachments thereto (filed on December 21, 2018); and the People’s Notice
Regarding Plea Offer (filed on December 26, 2018). The Victim also filed an
additional pleading (Victim’s Response) on January 14, 2019. The Court has
reviewed that as well.
The Court being fully advised in the premises, takes judicial notice of the
court file and findings under C.R.E. 201(c) and hereby enters the following
ORDER:
 BACKGROUND
The Defendant was charged by Complaint/Information on January 30, 2017,
with eight charges; five counts of Second Degree Assault (C4F), and three counts
of Third Degree Assault (C1M). The charges are all filed as crimes of domestic
violence against the same victim. The case took an atypical path to its present
setting. An appeal from a lower court ruling created a meaningful delay as that
process completed. The matter is now before this court for proposed entry of a
guilty plea. The court is advised that this Defendant will plead guilty to one count
of Third Degree Assault, as a class one misdemeanor. As part of that guilty plea,
he will admit that the assault he committed on the Victim was an act of domestic
violence. The date range of the criminal conduct within the proposed guilty plea is
from February 27, 2015, to November 20, 2016. This is the calendar range of the
original charges in the Complaint. There are no sentencing concessions that would
bind the court. In exchange for that guilty plea, the remaining counts would be
dismissed. The People will request a presentence investigation and a pre-sentence
domestic violence evaluation be completed prior to sentencing. The People and the
Defendant asks the Court to accept his guilty plea, the Victim opposes.

LEGAL AUTHORITY
§ 16-7-302. Responsibilities of the trial judge with respect to plea discussions and
agreements
(1) The trial judge shall not participate in plea discussions.
(2) If a tentative plea agreement has been reached which contemplates entry of a
plea of guilty or nolo contendere (no contest) in the expectation that other charges
before that court will be dismissed or that sentence concessions will be granted, the
trial judge may, upon request of the parties, permit the disclosure to him of the
tentative agreement and the reasons therefor in advance of the time for tender of
the plea. He may then indicate to the district attorney and defense counsel or
defendant whether he will concur in the proposed disposition if the information in
the presentence report is consistent with the representations made to him. If the
trial judge concurs but later decides that the final disposition should not include the
charge or sentence concessions contemplated by the plea agreement, he shall so
advise the defendant and then call upon the defendant to either affirm or withdraw
his plea of guilty or nolo contendere (no contest).
(3) Notwithstanding the reaching of a plea agreement between the district attorney
and defense counsel or defendant, the judge in every case should exercise an
independent judgment in deciding whether to grant charge and sentence
concessions.
STANDARD OF REVIEW

Where the trial court clearly exercises independent judgment in rejecting a

proposed plea agreement and sets forth on the record its reasons for doing so, its
ruling will not be set aside on appeal. People v. Darlington, 105 P.3d 230, 233
(Colo. 2005). However, failure to exercise discretion is itself an abuse of
discretion. Id.

ANALYSIS

C.R.S. 16-7-302 and Crim. P. 11 direct a trial court to exercise its

“independent judgment in deciding whether to grant charge and sentence
concessions.” Here there are no proposed sentence concessions, thus the contested
issue relates to proposed charge concessions. Certain limited standards developed
through case law assist trial courts in the exercise of discretion. If a disposition is
rejected, the trial court must consider all relevant factors and articulate the reasons
for rejecting an agreement on the record. See People v. Copenhaver, 21 P.3d 413
(Colo. App. 2000); People v. Jasper, 984 P.2d 1185, 1187 (Colo. App.1999)
(“Jasper I ”) rev'd on other grounds 17 P.3d 807 (Colo. 2001). The trial court must
give the plea agreement due consideration before deciding whether to grant
charging or sentencing concessions. People v. Jones, 176 Colo. 61, 70, 489 P.2d
 596, 601 (Colo. 1971); see also ABA Standards of Criminal Justice Relating to
Guilty Pleas § 14–3.3 (1999).1

Pursuant to the relevant Colorado caselaw, factors which the trial court may
properly consider include the timeliness of the plea agreement, the defendant's
previous criminal history, and any pre-plea report or recommendation.
Copenhaver, 21 P.3d at 417; Darlington, 105 P.3d at 232. This Court will
therefore address those specifically enumerated factors.

Is this proposed plea agreement timely?

The court finds that the offered guilty plea is timely, or at least not untimely.
Though the case is chronologically older than many criminal cases, the delay was
neither the product of bad faith nor unreasonable dilatory tactics by either side.
This factor favors acceptance of the proposed guilty plea.

1
ABA Standard 14-3.3- Responsibilities of the Judge

///

(b) If a plea agreement has been reached by the parties which contemplates the granting of charge or sentence
concessions by the judge, the judge should:

(i) order the preparation of a pre-plea or presentence report, when needed for determining the appropriate
disposition;

(ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on
whether to grant charge or sentence concessions;

Commentary (in part):

“Many courts, when called upon to exercise their power to accept or reject a plea agreement, draw a further
distinction between the level of scrutiny accorded bargains regarding charges and that accorded bargains
regarding sentence, apparently based upon the distinction between the charging powers historically vested in
prosecutors and the sentencing power traditionally wielded by the judiciary. As one federal court explained,
‘[w]ithin the statutorily prescribed range, imposition of sentence is a matter of discretion for the district court.
Thus, the prosecutor's role in sentencing bargains is strictly advisory ... [By contrast, c]harge bargains directly and
primarily implicate prosecutorial discretion whereas judicial discretion is impacted only secondarily. Thus, while
district courts may reject charge bargains in the sound exercise of judicial discretion, concerns relating to the
doctrine of separation of powers counsel hesitancy before second-guessing prosecutorial choices.”
The Defendant’s previous criminal history

Both the Defendant and the People have represented to the Court that this
Defendant has no formal record of any prior convictions, felony or misdemeanor,
in Colorado or elsewhere. If accurate, this factor favors acceptance of the proposed
guilty plea.

Pre-Sentence Report and other Recommendations

As no guilty plea has entered a pre-sentence report has not yet been prepared.

The Victim’s Objections

On December 10, 2018, the Victim, Ms. Pamela Fine, filed an Objection to
Plea Agreement and Hearing date. By way of summary, Ms. Fine’s initial
objections to the guilty plea are:

1) The People have not consulted with her sufficiently as required under
C.R.S. 24-4.1-302.5;
2) The justice system has failed to respect her right to be heard at
hearing;
3) The proposed guilty plea is “inconsistent with the duty of prosecutors
to only prosecute charges which are supported by probable cause”;
4) The People’s assessment of the strength/weakness of the evidence of
guilt is wrong;
5) The offered guilty plea is inconsistent with other similarly situated
defendants;
6) The offered guilty plea sends the wrong message to the community at
large and other victims given the Defendant’s former employer and
employment;
7) Recent conduct by this Defendant is concerning to Ms. Fine.

An extensive Response was also filed by the Victim on January 14, 2019.
The court has endeavored to consider the wide breadth of information provided
herein. Candidly much of what has been provided to the court by the People, the
Defendant and the Victim may be relevant to the issue of what an appropriate
sentence may be. However, much of it does not specifically address the factors that
the higher courts direct trial courts to consider when accepting or rejecting a plea
agreement.

While a crime victim has a number of enumerated rights, including the right to
be present for “critical stages of the criminal justice process,” § 24–4.1–302.5,
C.R.S. (2015); Colo. Const. art. II, § 16a, a victim is not a party and has no
standing beyond the rights specifically granted by statute and the Colorado
Constitution. Gansz v. People, 888 P.2d 256, 258 (Colo. 1995); People v. Chavez,
368 P.3d 943, 944 (Colo. 2016).

In particular, Article II, section 16a of the Colorado Constitution does not
grant an alleged crime victim standing or the right to, for example, contest a
district attorney's decision to dismiss criminal charges or the right to appellate
review of the order dismissing the charges. Section 16a and its enabling legislation
do not grant an alleged crime victim the right to be heard on a district attorney's
motion to dismiss a criminal charge. Gansz, 888 P.2d at 258–59.

The question before the court warrants brief comment on the respective roles
of the district attorney, the criminal defense attorney, and the trial court. Among
the constitutionally granted powers of the district attorney is the power to charge a
defendant.

As our Colorado Supreme Court noted in People v. Gallegos,2 a prosecutor

has uniquely broad discretion in charging offenders. As with charging discretion,

2
People vs. Gallegos, 644 P.2d 920, 930 (Colo. 1982) states in part:

It has long been recognized that criminal prosecutors may exercise uniquely broad discretion in charging offenders,
and that this broad discretion does not exceed the permissible delegated power of the executive. As the United
States Supreme Court stated in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978):
the decision to dismiss also lies exclusively with the district attorney. Filed cases
that are not dismissed either proceed to a trial or are handled through plea
negotiations. Given the weight of caseload and limited resources, a small minority
of cases actually proceed to trial. Thus, all district attorneys routinely elect to offer
defendants guilty pleas to lesser charges in lieu of trial. This practice is the norm,
not the exception. According to a Bureau of Justice Assistance report, the
overwhelming majority (90 to 95 percent) of criminal cases result in a negotiated
plea.3 These figures are consistent with this court’s experience as a former elected
district attorney, a former criminal defense attorney, and now a trial judge.

On the other hand, criminal defense counsel’s focus must remain on the
protection and defense of their client. Thus, the defense attorney maintains an
ethical obligation to zealously protect the interests of their client. Logically, a
criminal defense counsel has no obligation under the Colorado Victim’s Rights
Act.

Finally, and briefly, one of a trial judge’s obligations is to “uphold and apply
the law… both fairly and impartially.” In so doing, a judge “shall not be swayed by
public clamor or fear of criticism.” Code of Judicial Conduct 2.2 and 2.4.
Participation by the trial judge in plea discussions could improperly transform the
judge from a neutral arbiter to an advocate. See e.g., Crumb v. People, 230 P.3d
726, 730 (Colo. 2010). A trial judge is therefore not permitted to engage in plea

‘In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury
generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of
chargeable offenses, “the conscious exercise of some selectivity in enforcement is not in itself a federal
constitutional violation” so long as “the selection was (not) deliberately based upon an unjustifiable standard such
as race, religion or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448 (82 S.Ct. 501, 7 L.Ed.2d 446)’.

3
Lindsey Devers, Bureau of Justice Assistance, U.S. Dep’t of Just., Plea and Charge Bargaining 3 (2011),
https://www.bja.gov/publications/pleabargainingresearchsummary.pdf.
 negotiations, but may require the parties to provide the reasons for the proposed
plea and should exercise independent judgment on whether or not to accept the
plea. C.R.S. § 16-7-302(1).

It is in the context of these respective roles and the parameters of such that
the court has considered the Motion, Notice, Response and Objection. These are
important considerations to all involved, particularly to both the Defendant and to
the Victim. The court initially notes that the Victim may request the Victim’s Rights
Act Compliance Program at the Colorado Division of Criminal Justice to review any
alleged V.R.A. violations committed by the prosecution and/or the court. If the
committee therein finds a V.R.A. violation occured, then remedial action can be
ordered.

The court notes that a significant portion of the Defendant’s Motion details
counsel’s professional assessment as to the relative strengths/weaknesses that the
evidence in this case presents. The People’s Notice discusses such as well. The
Victim in turn responds to such. But given the case posture, this court has not had
the opportunity to hear any of the evidence in this case. The court therefore cannot
endorse or reject the respective conclusions regarding the (in)adequacy of evidence
supporting the charges in this matter. But the court is not surprised that there may be
disagreements whether certain charges are strong or not. Both sides are represented
by able and experienced trial counsel who are skilled at critically assessing potential
evidence. The Victim has in turn made clear her positions and her disagreement with
their assessments of perceived evidentiary weaknesses.

In the end, however the issue that this Court deems most material is more
simple: whether the proposed guilty plea offered in this case is materially
inconsistent with the manner in which other similarly situated cases and other
defendants have been treated by the People. Fairness, in the court’s mind, requires
that this Defendant (and this Victim) not be subjected to unreasonably harsh or
unreasonably lenient guilty plea offers simply because this case has been in the
public eye or because this Defendant was a coach at a university. As to that
question, the court finds that given the charges that were ultimately filed and the
fact that the Defendant appears to have no prior convictions of record, the court
concludes that the offered guilty plea falls within a range of reasonable offers.
Without doubt, both sides and the Victim could point to other cases in this and
other courts in which either better or worse guilty plea offers were extended by
prosecutors. But the court finds this guilty plea offer falls within a reasonable
range of offers. For these reasons the court enters the following order:

ORDER

The proposed guilty plea is conditionally accepted, subject to the “information

in the presentence report being consistent with the representations made to the
court.” This matter shall therefore be set for an entry of a guilty plea, and a
Presentence Investigation Report will be ordered to be provided to the court. Upon
review of the Presentence Investigative report, the court will either set the matter
for a Sentencing Hearing or will permit the Defendant to withdraw his guilty plea.

So Ordered this 18th day of January, 2019.

By the Court:

________________________
F. M. Goodbee
District Court Judge