A Denver judge did not satisfy her obligation to ensure a defendant knew he could speak on his own behalf at sentencing, Colorado’s second-highest court determined in ordering a new sentencing hearing on Thursday.

Jurors convicted Joe Pinheiro of second-degree murder in 2022 for fatally shooting Philip Malinowski five years earlier. The parties disputed whether Pinheiro’s actions were intentional, with the defense maintaining the shooting was accidental.

Pinheiro faced a sentence of 16 to 48 years in prison. During the sentencing hearing, his lawyer told then-District Court Judge Jennifer B. Torrington, “I’ve instructed Mr. Pinheiro not to make a statement today since we do plan on appealing this conviction.”

Torrington then imposed the maximum sentence. Her ruling amounted to five spoken sentences that did not describe how she concluded 48 years were appropriate. Instead, Torrington said she reviewed “the entirety of the record,” the presentencing investigation report and the comments of various parties.

“That statement is so ambiguous and inscrutable to be meaningless. Pinheiro’s sentencing range was 16 to 48 years. Why did the court choose 48? Why not 38? Why not 28? Why not 18 or 16?” wrote public defender Jeffrey A. Wermer on appeal. “We do not know because the court did not tell us. Affirming here would render meaningless the requirement that sentencing courts must state on the record the basic reasons for imposing the sentence.”

A three-judge Court of Appeals panel did not address whether Torrington’s rationale was inadequate because it agreed with Pinheiro that she neglected to give him the opportunity to speak, as state law requires.

“The district court must give every criminal defendant an opportunity to speak on their own behalf before it imposes a sentence,” wrote Judge Stephanie Dunn in the July 24 opinion. She added that it was unclear if Pinheiro knew he had that right, notwithstanding his defense lawyer’s statement.

“Because we agree that the court violated Pinheiro’s right to speak, we don’t reach the remaining arguments,” Dunn wrote, returning the case to the trial court for a new sentencing.

The Court of Appeals panel also agreed police violated Pinheiro’s Miranda rights, but the mistake did not affect the outcome.

After shooting Malinowski, Pinheiro went to the Sheridan police station, called 911, said he needed to speak to a detective, and confessed to shooting and killing someone. Officers arrived and arrested Pinheiro, who had also brought with him a bag containing guns.

An officer gave Pinheiro a Miranda warning, advising of his constitutional rights to silence and to consult with an attorney. During his subsequent police interview, Pinheiro twice invoked his right to counsel. On appeal, Pinheiro disputed the prosecution’s use at trial of the final set of statements Pinheiro made 2.5 hours after his 911 call, in which Pinheiro told Detective Bryan Valenzuela where the victim was.

After speaking with Pinheiro, leaving the room and returning, Valenzuela said he needed to ask Pinheiro “where this potentially injured party that you’re claiming to the other officers to have murdered” was. Pinheiro told Valenzuela the address and continued to respond to the detective’s questions.

Then-District Court Judge Kenneth M. Laff determined the questioning, which happened after Pinheiro invoked his right to counsel, could be used as evidence because it was “reasonable to believe that a threat to public safety existed.” 

“Detective Valenzuela had reason to believe there was an injured victim in an unknown location,” Laff added.

Pinheiro, on appeal, acknowledged the U.S. Supreme Court has created a “public safety” exception. The court’s goal, as explained in a 1984 decision, was to avoid placing police officers “in the untenable position of having to consider, often in a matter of seconds, whether it best serves society” to respect a suspect’s Miranda rights or to question them about a potential safety threat.

However, Wermer argued for Pinheiro, the Supreme Court was addressing a scenario in which officers had just stopped the defendant and wanted to know where an unsecured gun was located.

In Pinheiro’s case, “the custodial interrogation occurred two and a half to three hours after Malinowski died,” Wermer wrote. “It is unreasonable to believe that a shooting victim would still be alive hours after a first-hand report of a fatal shooting.”

The Court of Appeals panel agreed the Supreme Court’s recognized exception did not apply. Dunn noted the police questioning happened after Pinheiro’s Miranda warning, and well after he had told police he had shot and killed someone.

“True, the location of the victim was unknown,” Dunn wrote. But “well-intentioned though he might have been, the fact that the detective waited several hours to press the issue undercuts any claim that there was an objectively reasonable belief of immediate or exigent danger.”

Because the panel deemed Pinheiro’s statements “unimportant and irrelevant” to the issue of whether Pinheiro intended to shoot Malinowski, it decided the violation did not affect the verdict.

The case is People v. Pinheiro.