Montrose - Daily Press

MONTROSE —  The trial court sentenced Jason Fiske fairly when it sent him to prison for 22 years, the Colorado Attorney General said.

Assistant Attorney General Katharine Gillespie filed an answer Jan. 10 to Fiske’s appeal on constitutional grounds.

She said in it that Fiske knew what he was getting into when he entered an Alford plea last year to reckless manslaughter and robbery in the 2005 death of Kevin Hale.  

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Hale, 36, was killed in a Montrose Park after a reported fight with Fiske and Adam Hernandez, who according to police reports had accused the openly gay victim of “molesting” him.

Hale’s family denied he’d done any such thing and said previously it considers his death a hate crime.

Both Fiske and Hernandez’s family said previously they did not think the men were homophobic.

Fiske and Hernandez were originally charged with first-degree murder in Hale’s strangulation death, but eventually pleaded to lesser charges.

Though the charges in the plea deals were identical, the sentences were not. Hernandez was sentenced to eight years — six for reckless manslaughter and two for robbery, to be served consecutively. Fiske drew a 22-year sentence — 12 for reckless manslaughter and 10 for robbery, consecutive.

Fiske appealed his sentence to the Colorado Court of Appeals last September. His attorneys argued the local trial court engaged in judicial fact-finding in violation of Fiske’s Sixth and Fourteenth Amendment rights, which resulted in an excessive sentence.

They also argued former Judge Dennis Friedrich, who has since retired, failed to consider mitigating factors and used a single prior conviction — on a misdemeanor charge — to consider the reckless manslaughter “aggravated.”

Attorneys Marna Lake and Dan Hotsenpiller contended Friedrich did not first determine whether the misdemeanor conviction fell under extraordinary aggravating circumstances.

Gillespie’s brief said that was not the case.

“…the defendant unequivocally stated that he understood that in his case he could be sentenced in the aggravated range on both counts and that the sentences could be ordered to be served consecutively,” she wrote.

The brief later detailed court testimony in which Fiske was explicitly asked whether he was agreeing the misdemeanor conviction could be used “in sentencing the aggravated range in both charges.” Fiske replied “Yes, sir,” according to the brief.

Gillespie said the defense neither corrected nor disagreed with this advisement.

At sentencing, the court listed several factors it deemed relevant, which according to the brief included the fact that Fiske did not know Hale, yet was willing to commit the crime for Hernandez; attacked Hale as he was trying to leave and knew his actions could kill him.

Fiske’s prior conviction was not exempt from consideration and, based on applicable case law, its seriousness or lack thereof did not affect whether it could be considered as an extraordinary aggravating circumstance, Gillespie said.

“The rationale…is that the previous conviction has been established through procedures satisfying the defendant’s Sixth Amendment rights, whether the conviction was obtained by jury verdict or plea agreement, and thus no further jury involvement is required,” she wrote.

The court was correct in considering Fiske’s prior conviction, Gillespie said, calling the sentencing range “clearly part of the negotiated terms of the plea agreement.”

She also said the trial court properly considered all relevant sentencing factors and there was nothing requiring co-defendants to receive identical or similar sentences. Fiske’s sentence, she argued, appropriately reflected his degree of culpability in Hale’s death.

“The trial court properly sentenced the defendant more harshly as it was his actions, and his alone, that killed the victim,” Gillespie wrote.

Hotsenpiller said he expects to file a reply brief to Gillespie’s argument in about a month and at that time, would request an oral argument before the court of appeals.

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