Cripple Creek – A Teller County judge Tuesday ordered that a jury be seated to decide whether Terry Barton’s actions in setting the largest wildfire in Colorado history were so serious that she can receive an aggravated sentence.
In March 2003, the former U.S. Forest Service employee was sentenced to the maximum aggravated sentence of 12 years in state prison for lighting the 137,000-acre Hayman fire.
But the sentence was thrown out by the Colorado Court of Appeals, which said only a jury, not a judge, could impose a sentence in the aggravated range. The Colorado Supreme Court let the appeals court decision stand.
District Judge Tom Kennedy said Tuesday that he believed another Colorado Supreme Court decision, issued in May, permitted him to impanel a jury as requested by El Paso County District Attorney John Newsome.
Barton’s attorney, Sharlene Reynolds, said she will immediately appeal Kennedy’s decision to the Colorado Supreme Court.
Reynolds had argued that in the wake of the appeals court ruling, Barton could receive at most six years in prison, the maximum that could be imposed in the “normal” or “presumptive” range.
“I was a little surprised by the decision here,” Reynolds said. “I thought the law was on our side.”
Reynolds said she knew of no similar case where a judge has impaneled a jury in similar circumstances. And Kennedy said that in his research he found only one case in Indiana where that had happened.
When the Colorado Supreme Court in November let stand the appeals court decision – it basically reduced the 12-year term imposed in 2003 – Newsome said he might scrap the plea bargain that he said Barton voluntarily entered.
Newsome said each of the four district attorneys in the areas ravaged by the fire then could file separate cases against Barton. Newsome claimed that under the terms of the plea bargain, Barton knew prosecutors would seek the aggravated maximum of 12 years.
Newsome had asked Kennedy to either impanel a jury or let him withdraw from the Barton plea bargain.
Kennedy ordered a jury to be impaneled, but stressed that prosecutors had the legal authority to withdraw from the plea agreement.
Newsome said he will present numerous aggravating factors to the jury, including that the Hayman fire was the largest wildfire in Colorado history; there was $30 million in property damage; Barton, as a U.S. Forest Service worker, had specialized knowledge and knew that setting a fire in dry, windy conditions could have horrible consequences; Barton violated a public trust; and she lied to investigators.
Barton could be eligible for an aggravated sentence if the jury found only one aggravating factor.
The original sentence was imposed by Teller County District Judge Edward Colt two months after Barton pleaded guilty to a state charge of fourth-degree arson, admitting that she knowingly or recklessly started a fire on June 8, 2002, and by doing so placed another person in danger of death or serious bodily injury.
The state sentence came on top of a six-year federal term Barton received in April 2003 for starting the blaze. She claimed that while on patrol, she had taken out a letter from her estranged husband, became angry and upset, and burned the letter in a campfire ring in Pike National Forest near Lake George.
Barton is serving her federal sentence in a prison in Texas. She was in Cripple Creek for Tuesday’s hearing.
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
