Court ruling throws cloud over resentencing


DENVER – Prosecutors’ goal of keeping Terry Lynn Barton in prison past 2008 for starting the worst wildfire in Colorado’s recorded history has been thrown into doubt by a state Supreme Court ruling that their preferred option is unacceptable.Barton’s original 12-year state sentence was thrown out in late 2004, and prosecutors had hoped a jury would restore it in a new hearing. But in a ruling issued Monday, the Supreme Court said state law doesn’t authorize such hearings.Prosecutors said Tuesday they weren’t sure what their next move would be. Unless the longer sentence is restored, Barton could be released from prison in 2008. With a 12-year sentence, she could be in prison until 2014.Barton pleaded guilty in 2003 to arson for starting the Hayman fire, which burned 138,000 acres and destroyed 133 houses in June 2002. Citing aggravating circumstances, the trial judge ordered her to spend 12 years in prison, twice as long as the typical two-to-six-year sentence for arson.The Colorado Court of Appeals threw out the sentence, saying only juries, and not a judge, could determine aggravating circumstances. The appeals court also said the judge might have been biased because smoke from the fire forced him from his home.A different state district judge took over the case, and in January he agreed with prosecutors that a jury should be seated to decide whether aggravating circumstances existed.Barton’s case was put on hold while the state Supreme Court reviewed another case with similar circumstances. That ruling came Monday, when the high court said that in cases where a defendant pleads guilty, the law doesn’t allow a jury to be seated to consider whether a longer-than-typical sentence is justified.Doyle Baker, a deputy district attorney for El Paso and Teller counties, said Tuesday it was unclear what his office would do without the jury option. Baker said one option is asking the trial judge to withdraw Barton’s guilty plea and put her on trial with a possibility of a longer sentence.Baker said the final decision will be made by District Attorney John Newsome, who is on vacation this week.”She will be resentenced on the state charge,” Baker said. “But it’s just a question of what that sentence will be at this point.”Mark Walta, Barton’s public defender, had argued against seating a jury for resentencing. He did not immediately return a call Tuesday.The state case does not affect the six-year federal sentence Barton is serving simultaneously with her state sentence in a federal prison in Texas. She pleaded guilty in December 2002 to federal charges of setting fire to federal land and making false statements.Barton also was ordered to pay $42.2 million in state and federal restitution.

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