Colorado’s second-highest court last week ordered that a defendant be resentenced a second time because a Denver judge failed to allow John Doushay Wise to speak, and also based the sentence length on speculation about what the previous judge who sentenced Wise 15 years prior would have handed down if he “was here today.”

A jury originally convicted Wise in 2004 for his attempts to rob a convenience store and grocery store, which culminated in Wise shooting and paralyzing a security guard. His sentence amounted to 150 years in prison. For attempted murder, Wise received 32 years.

In 2017, Wise alleged his sentence for attempted murder was illegal because the original trial judge, Larry J. Naves, used a range of 10 to 32 years when, in fact, the range was eight to 24 years. The state’s Court of Appeals agreed and ordered a resentencing.

At the 2019 resentencing hearing, District Court Judge Jay S. Grant said the facts of Wise’s case were “incredibly serious.” Observing that Naves “knew his stuff,” Grant opted to again impose the maximum sentence possible for the attempted murder count, 24 years.

“It’s clear that Judge Naves wanted the maximum there, and he gave it to him,” Grant said. “I think that if Judge Naves was here today, he would impose that.”

Wise appealed his sentence again. He argued Grant had not afforded him the right of allocution, meaning to speak on his behalf and possibly introduce information that would mitigate a harsh sentence. Wise also challenged Grant’s rationale for imposing the 24-year sentence.

“While the court held a hearing and entertained arguments of counsel, it ultimately deferred entirely to what it believed Judge Naves would have wanted if the case were currently before him for resentencing,” wrote public defender Anne T. Amicarella.

In an unusual move, the prosecution agreed that Wise should be sentenced a third time because Grant did not invite him to speak.

A three-judge panel for the Court of Appeals decided Grant imposed the sentence illegally and ordered another resentencing hearing at which Wise could speak. The panel acknowledged Grant may impose the 24-year maximum again, but reinforced that a judge’s job is to use his own discretion when considering how the nature of the offense, the defendant’s potential for rehabilitation, and the need to protect the public affect the magnitude of the sentence.

“In saying that the court should exercise its ‘own discretion,’ we mean only that the court should not automatically impose the maximum twenty-four-year sentence simply because the original sentencing court had imposed the maximum term in an even greater (but erroneous) sentencing range,” wrote Judge John Daniel Dailey in the Feb. 2 opinion.

A defendant’s good conduct after his original sentencing, Dailey added, could be part of the decision. 9News reported in 2004 that the victim of Wise’s shooting said he forgave Wise and “did not want any more or any less of a sentence than what the law and the judge thought was just.”

The case is People v. Wise.