Hernandez withdraws appeal

MONTROSE — Adam Hernandez won’t appeal his sentence in the 2005 death of Kevin Hale after all, court records show.

Hale, 36, was found dead in Buckley Park July 30, 2005.

Hernandez was arrested after his co-defendant, Jason Fiske, turned himself in to police and said they were fighting with Hale late the night before. Fiske said he placed Hale in a choke hold to pull him off Hernandez, according to prior testimony and police records.

The choke hold proved fatal. Hale died of cerebral anoxia due to compression of his neck, an autopsy found.

Hernandez and Fiske met up with Hale in the park; the district attorney’s office said the men followed Hale there with malice on their minds because Hernandez claimed the openly gay Hale “tried to molest” him. After fighting with Hale, the men took $8 from his wallet.

Defense attorneys said no one had intended for Hale to die and all present believed he was alive when they left the park.

Originally charged with first-degree murder, Hernandez was sentenced in May 2006 to eight years in prison after pleading guilty to manslaughter and theft. His plea agreement allowed him to seek reconsideration of his sentence after serving two years.

The matter was set for a hearing Thursday, but on Monday, Hernandez moved to withdraw his request for sentencing reconsideration.

“After having two years to reflect on his sentence, Mr. Hernandez understands that his sentence was appropriate for his actions,” the withdrawal motion stated.

“Additionally, he does not want to put the Hale family or his family through any further emotional trauma associated with further hearings.”

The motion stands in contrast to Hernandez’s original motion to the court, filed in March. “Although Mr. Hernandez directly played a role in Mr. Hale’s death, it was never his intention that Mr. Hale die,” the March motion read.

It referenced a letter that revealed Hernandez’s “true and thoughtful remorse,” which the court said it was not able to release because the letter contained mental health counseling information.

Fiske, who was sentenced to 22 years in prison after his Alford plea to manslaughter and robbery, is still seeking a reduced sentence.

Attorneys Dan Hotsenpiller and Marna Lake argued in briefs to the Colorado Court of Appeals that Fiske’s constitutional rights were violated after the trial court engaged in “judicial fact finding.”

They said the local court improperly used Fiske’s prior conviction of a misdemeanor as an aggravating circumstance for his sentence in Hale’s death.

The attorney general’s office said Fiske conceded in his plea agreement that the misdemeanor could be used as an aggravator.

Hotsenpiller and Lake fired back, saying Fiske only acknowledged the existence of his misdemeanor conviction as a “Blakely-exempt” fact.  A Blakely-exempt case is one in which the defendant stipulates to aggravating factors.

Oral arguments were slated for Aug. 11.