An 18-year-old who received a mandatory five-day jail sentence for being a juvenile in possession of a handgun must be resentenced under the broader range of options available to offenders who are no longer children, the state's Court of Appeals has decided.

In the case involving a teenager identified as E.V., the defense took the position that the juvenile sentencing law imposing a mandatory minimum punishment did not apply to him because he had already turned 18 at the time of sentencing. The government argued it did.

Although E.V.'s stance meant that he could receive a harsher sentence for his offense if he prevailed on appeal, there would also be a potential for avoiding jail time.

"It's entirely possible you could have a situation where by the time the sentencing occurs, circumstances have deteriorated to the point that the juvenile court judge is perfectly justified in imposing a six-month jail sentence, not a five-day jail sentence," argued public defender Mark Evans to the Court of Appeals. "But when a young person has done everything that we've asked of them and they've tried their best to move beyond their mistake and start contributing to society, that progress does not have to be derailed by five days in the county jail."

E.V.'s appeal hinged on a provision in state law that requires courts to sentence juveniles who have committed weapons possession to a minimum of five days "of detention." In E.V.'s case, an Arapahoe County magistrate sentenced him to jail because he was newly 18.

Evans emphasized to the Court of Appeals panel that detention and jail are not synonymous.

"Detention is a set of facilities established by statute, run by state-level employees and tailored toward the educational and unique needs of kids," he said. "Jails are established by counties to house people as punishment for crime."

Under other sentencing provisions, E.V. could receive probation or community corrections, or perhaps a longer jail sentence. The Colorado Attorney General's Office argued that if the law treats E.V. as a juvenile, that includes for sentencing purposes.

A three-judge panel for the appellate court sided with E.V.'s interpretation, and found the magistrate was not authorized to impose the mandatory minimum sentence of five days in jail.

"The prosecution argues that this interpretation leads to absurd outcomes by creating different rules for juveniles who have turned eighteen by the time of sentencing and those who have not," wrote Judge Neeti Vasant Pawar in the May 19 opinion. "We disagree that it is absurd to have different sentencing rules for children and individuals over eighteen years old — the entire juvenile justice system is predicated on a very similar distinction."

The panel rejected E.V.'s other claim on appeal – that police did not have reasonable suspicion to stop and search him in the first place, which led to the discovery of the gun.

Officers had responded to reports of an assault next to an apartment building. While they found no activity upon arrival, they noticed E.V. in a doorway, where he was reportedly sweaty, out of breath and refusing to cooperate.

An officer handcuffed E.V. and felt the gun in E.V.'s backpack.

Because investigatory police stops require reasonable suspicion that a person has committed a crime, the Court of Appeals panel believed the circumstances the night of E.V.'s arrest met the legal threshold.

"(I)t was reasonable for the officers to suspect that E.V. might have been sweaty and out of breath because he was involved in the assault that had just occurred," Pawar wrote.

The panel sent the case back to the trial court for resentencing.

The case is People in the Interest of E.V.

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