Cripple Creek, Colo. – A judge Monday agreed to reconsider his decision that a former Forest Service employee invalidated her guilty plea by filing an appeal in the worst wildfire in Colorado history.
Judge Thomas Kennedy’s decision could mean the difference between a re-sentencing hearing for Terry Barton or a new trial that could include additional charges from up to four counties ravaged by the Hayman fire in 2002.
Barton, who admitted setting the fire by burning a letter in a drought-stricken area, is serving a 6-year federal sentence, but her 12-year state sentence was thrown out by the state Appeals Court. She pleaded guilty to a state felony arson charge.
Prosecutors argue that Barton broke her word when she appealed.
With Barton listening by telephone Monday, her lawyer Mark Walta told Kennedy that prosecutors should have raised that issue when Barton filed her appeal in 2003 and it’s too late to do so now.
Both sides disagreed about whether the appeals court or Kennedy had the right to decide whether the deal had been broken. Because of the extensive litigation in the case, Kennedy said he would talk some time to read the court cases cited by Walta.
Kennedy said he would decide the issue before a Feb. 26 conference with the lawyers, where they will either discuss setting a new trial or re-sentencing Barton.
If the plea deal is thrown out, prosecutors where the fire burned could potentially file charges against Barton. If the deal holds, the judge could re-sentence Barton to up to 6 years in prison, the normal sentence under state law, because of a recent Supreme Court ruling. That ruling, in another unrelated case, said that only juries can hand down a sentence longer than the normal range in state law.
“I’m trying to do everything I can four years later to prevent that,” said John Newsome, the district attorney for El Paso and Teller counties.
The fire scorched 138,000 acres, destroyed 133 homes and forced more than 8,000 people to leave their homes.
