Montrose - Daily Press

DENVER — Contending the Montrose District court’s “clear error” violated Jason Fiske’s constitutional rights, his attorneys formally asked the Colorado Court of Appeals for a reduction in his sentence.

In an opening brief filed Wednesday, Fiske attorneys Dan Hotsenpiller and Marna Lake argued the local trial court had engaged in “judicial fact-finding” in violation of Fiske’s Sixth and Fourteenth Amendment rights, resulting in an excessive sentence.

“The sentences imposed are not proper,” the brief read. “The defendant’s reckless attempt to stop a fight had disastrous, but unintended, results.”

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Fiske is currently serving a 22-year sentence in the 2005 death of Kevin Hale, an openly gay man who was killed in a Montrose park.

Fiske received a 12-year sentence on his Alford plea to reckless manslaughter and a 10-year, consecutive sentence on his plea to robbery.

Both sentences were in the aggravated sentencing range.

Fiske’s co-defendant, Adam Hernandez, received a total sentence of eight years after pleading guilty to the same charges.

Fiske is seeking an appellate court order reducing his sentence to six years for manslaughter and two years for robbery — the same sentence as Hernandez. Alternately, his attorneys asked the appeals court to vacate the original sentences and send the case back for re-sentencing.

Fiske and Hernandez were both originally charged with first-degree murder in Hale’s death, which Hale’s family maintains was a hate crime.

Hernandez reportedly accused Hale of “molesting” him in the past, something Hale’s family has always denied and of which there is no public evidence.

The men ultimately got into a fight at Buckley Park July 29, 2005, which ended with Fiske placing Hale in a “sleeper hold” — a hold that cut off Hale’s oxygen supply and led to his death early the next morning.

Hotsenpiller and Lake’s brief said the tragedy “started with Adam Hernandez,” whom they alleged was “‘ranting and raving’ (at a local bar) about some man that had molested him in the past. Hernandez continued to bring up the prior molestation incident and talked about ‘teaching a lesson’ to the person involved.”

The attorneys said Fiske had tried to talk Hernandez down, and that witness statements concerning a planned robbery contradicted one another. The brief also said Fiske, Hernandez and others arrived in the park before Hale did, contradicting the notion the victim was followed.

Fiske had no intention of killing Hale, his attorneys said, and they alleged Hernandez continued to taunt and kick Hale after he was on the ground. “As the victim resisted, (Fiske) warned him to ‘quit struggling or I could kill you.’ When Mr. Hale relaxed, (Fiske) released the chokehold and got up. All witnesses believed that Kevin Hale was alive...”

The men then took money from Hale’s wallet.

Fiske is now arguing that the trial court failed to consider mitigating factors but instead “divined intent.” The brief contends the court used a single previous misdemeanor conviction of a property crime to deem the crime against Hale “aggravated” without first finding the prior conviction itself fell under extraordinary aggravating circumstances.

That finding is required under existing case law and Colorado Supreme Court precedent, the attorneys said.

“The trial court then drew inferences from certain raw facts it believed warranted an aggravated sentence,” the brief stated.

“The assumptions and conclusions of the court were disputed by the defendant throughout the proceedings. Mr. Fiske did not admit the facts and no jury determined the facts. Instead, the trial court engaged in unauthorized judicial fact-finding.”

The court’s alleged error was “obvious,” the brief stated, and as a result Fiske’s “sentences are constitutionally infirm and cannot stand.”

Focusing on select facts, even those disputed by Fiske and Hernandez, and ignoring mitigating ones was a “clear abuse of discretion,” Fiske’s team argued in the brief. They said statements clearly showed there was no “plan” to kill Hale and also said the court ignored forensic evidence that showed minimal use of force.

“Rather, the trial court chose to surmise what (Fiske) was thinking at the time of the incident, as well as what the victim may have been thinking. ...With respect for the sentence for the robbery, the lower court did not even attempt justification for the aggravated sentence.”

Fiske also argued he’d been given a sentence that was out of step with the one received by Hernandez, even though he’d been more cooperative, had a lesser criminal history and had tried to calm Hernandez.

There was no indication as to when the Appeals Court would hear argument.

A response from the prosecution hadn’t been filed as of Thursday.

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