DENVER — The Colorado Court of Appeals ruled Thursday that some of those serving sentences for marijuana possession can ask to have their convictions thrown out under the state’s new legalization law, but don’t expect the jail cells to start emptying just yet.
For one, most if not all of those convicted of marijuana possession prior to the passage of Amendment 64 in 2012 aren’t in jail. The previous penalty for being caught with an ounce or less of marijuana was a fine not to exceed $100.
“The impact of this ruling is very limited given that possession of an ounce or less of marijuana was already a petty offense subject to a $100 fine,” said Attorney General John Suthers in a post-decision statement. “No one could be incarcerated for such a petty offense.”
For another, Suthers said he doubts that Amendment 64 can be applied retroactively. The decision by a three-judge panel said the ruling applies only to those who were in the process of appealing their convictions when the voter-approved measure went into effect on Dec. 10, 2012.
While marijuana advocates lauded the decision, Suthers said in Thursday’s statement that he would probably file an appeal.
“While the attorney general’s office is reviewing the ruling, we will likely appeal because of the implications this ruling may have on other non-marijuana cases,” said Suthers. “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. That was not the case with Amendment 64.”
The court reversed the 2011 convictions of Brandi Jessica Russell on possession of marijuana concentrate and marijuana, saying that a defendant is “entitled to the benefits of amendatory legislation that mitigates the penalties for crimes when he files a motion for post-conviction relief.”
“Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for ‘a significant change in the law’ and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct,” said the decision.
Russell was guilty of possessing less than an ounce of marijuana and marijuana concentrate, as well as methamphetamine possession. She is now serving two concurrent four-year sentences of supervised probation.
At the time of her arrest, possessing three ounces or less of marijuana concentrate was considered a felony and subject to stiffer penalties than possession of marijuana, but the court noted that they are “deemed the same under Amendment 64.”
“Because defendant’s convictions were pending appeal when Amendment 64 became effective on December 10, 2012, her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated,” said the court.
Russell’s sentence may not be significantly reduced, however, given that the court refused to toss out her methamphetamine conviction.