Colorado’s second-highest court on Thursday upheld an Adams County judge’s decision to give a defendant five more years in prison solely because he did not tell the judge he was sorry.

By 2-1, a three judge panel for the Court of Appeals agreed that under certain circumstances, a defendant’s silence at sentencing cannot be used to increase his sentence. But in the case of Trinidad Renay Marquez, he not only accepted responsibility for firing a gun at others, but maintained during a pre-sentencing interview that his victims had some culpability.

“His choice to make these statements without any subsequent qualification meant the court could properly consider what he said in the interview,” wrote Judge Jerry N. Jones, “as well as what he elected not to say at sentencing.”

Judge Stephanie Dunn “reluctantly” disagreed. While she believed Marquez’s statements during the interview supported the 15-year sentence Marquez received, she was concerned that District Court Judge Roberto Ramirez imposed the sentence simply because Marquez did not say the words, “I’m sorry.”

Case: People v. Marquez

Decided: July 27, 2023

Jurisdiction: Adams County

Ruling: 2-1

Judges: Jerry N. Jones (author)

Katharine E. Lum

Stephanie Dunn (dissent)

In February 2020, Marquez shot at multiple people at a Commerce City King Soopers. The victims claimed Marquez and the people with him were harassing them, while Marquez asserted the victims would not leave him alone. Prosecutors charged Marquez with multiple counts of attempted murder, but he pleaded guilty to one assault charge.

Although the offense merited 10 to 32 years in prison, the prosecution agreed to a sentence of 10 to 15 years.

During his pre-sentencing interview, Marquez believed “both sides should have been arrested.”

“These guys were taunting me and grabbing me,” he said. “I was messed up, I was doing codeine and stuff.”

Marquez clarified he was “not going to say what I did was right, and I should not have let these guys get under my skin. I just don’t think it was right that I was the only one arrested.”

The probation officer, in turn, wrote that Marquez “seems to be taking accountability for his actions,” albeit with the belief that the victims were to blame, too.

During Marquez’s sentencing, Ramirez asked if Marquez had anything to say. Marquez replied, “No, sir.”

“That’s unfortunate,” Ramirez said. He suggested that while he talked to the prosecution, Marquez rethink his decision not to elaborate on what he said in the pre-sentencing interview. When the judge returned to Marquez, the defendant again opted not to speak.

“You want to be the tough guy, Mr. Marquez,” Ramirez said. “All you had to do was say, ‘Hey, I’m sorry.’ All you had to do was say, ‘You know what? Whenever I said that it was all their other – it was my victims’ fault, they had it coming to them. Man, I was – you know what? I was just upset. I’m sorry.'”

Ramirez continued that he was prepared to sentence Marquez to only 10 years in prison.

“All you had to say is, ‘I’m sorry.’ You would have gotten 10 years. But you want to stay hard, man. You want to be the tough guy,” the judge said. “I gave you the chance. Fifteen years.”

Marquez appealed his sentence, arguing he had the constitutional right against self-incrimination and Ramirez could not compel him to speak. Nor could he increase Marquez’s sentence as punishment for not speaking.

“The Trial Court’s frustration at Mr. Marquez not making a statement or apology at sentencing was the only factor he considered to increase the sentence from ten to fifteen years,” wrote defense attorney Avery Lehr.

The Court of Appeals panel acknowledged a 1999 decision in which the appellate court found a judge improperly imposed a sentence due to the defendant’s lack of remorse, based on the defendant invoking his constitutional right to silence throughout the proceedings.

“Though we recognize that a court may not punish a defendant merely for refusing to admit guilt,” wrote Jones in the July 27 opinion, “we cannot conclude that that is what happened here.”

He elaborated that Ramirez relied on the pre-sentencing report to determine Marquez lacked remorse over the shooting. Marquez could have clarified his comments to the judge, but he did not.

“Although he accepted some responsibility, his statements indicated a lack of remorse by seeking to cast responsibility elsewhere,” wrote Jones for himself and Judge Katharine E. Lum.

Dunn indicated she would have ordered a new sentencing hearing for Marquez based on Ramirez’s statement that Marquez “would have gotten 10 years” if he only said he was sorry.

“I can’t tell whether the district court based the sentence on the presentence report,” she wrote, or if Ramirez “improperly punished Marquez for refusing to admit guilt or express remorse.”

The case is People v. Marquez.