Plea deal must stay, ruling says

The Colorado Supreme Court barred prosecutors Monday from backing out of a plea deal with the woman who started the state’s worst wildfire, raising the possibility she could be free soon.

The ruling follows an appeals court decision voiding the 12-year state prison sentence Terry Barton received for starting the Hayman fire in 2002.

The justices’ ruling limits prosecutors to asking for a maximum of six years in state prison when Barton is resentenced, according to 4th Judicial District Attorney John Newsome.

Barton, 44, began serving a sixyear federal prison sentence in February 2003. Her 12-year state sentence was tossed out by the state’s Court of Appeals in late 2004.

A sentencing date could be set at her next court hearing Feb. 11.

“The most we can get is six years,” Newsome said. “There’s nothing myself or the other DAs can do about it.”

It’s unclear, though, if Barton will have to serve time in state prison after finishing her federal sentence.

Under the plea agreement, the federal and state prison sentences were to be served at the same time.

If the 12-year state sentence had stood, Barton would have served six years in federal prison and then would have faced another six years in a state prison.

Newsome contended Monday that because the state sentence for felony arson was voided, it hasn’t been completed while she’s been in federal prison.

Barton’s public defender Mark Walta disagrees and will argue that she can’t be sent to state prison after she’s released from a federal prison in Texas.

“Any sentence imposed on resen- tencing will, in my view, have to honor — and give effect to — this provision of the plea agreement,” Walta wrote in an e-mail.

Barton, a fire spotter for the U.S. Forest Service at the time, claimed she accidentally started the Hayman fire while burning letters from her estranged husband in a fire pit in drought-stricken Park County.

The fire burned for more than a month and tore through forests in four counties. It burned an estimated 137,000 acres and 133 homes, causing about $29 million in property losses, prosecutors have said.

The plea deal was drawn up by Newsome’s predecessor Jeanne Smith and the district attorneys from Park, Douglas and Teller counties. In January 2003, Barton pleaded guilty to a felony arson charge and prosecutors sought — and got — a 12-year prison sentence.

But the Court of Appeals, when it voided the sentence, ruled the judge was affected by the fire when he voluntarily evacuated his house. It also ruled that only a jury could find aggravating factors that would increase the sentence beyond the normal six-year maximum for the crime.

Newsome and the other prosecutors attempted to empanel a jury for a resentencing. But while awaiting that sentencing, the state Supreme Court ruled Barton’s plea precluded a jury from hearing aggravating sentencing factors.

Newsome then tried to withdraw from the plea agreement, stating Barton violated the agreement when she appealed the 12-year sentence. Fourth Judicial District Judge Thomas Kennedy agreed with prosecutors and ruled they could get out of the agreement.

But the justices ruled Monday that Barton didn’t violate the agreement and let it stand.

In it’s ruling Monday, the justices recap the damage the fire caused and that Barton worked for the U.S. Forest Service, used by prosecutors as an aggravating factor because she held a position of trust.

“The terrible costs of the fire continue to be felt in our state today, and will be felt far into the future,” the ruling says. “Barton, however, was not required to admit to any of these facts as part of her plea agreement. . . . Barton neither stipulated to any facts that would be used specifically for aggravation nor agreed to allow the trial court — rather than a jury — to determine any aggravating facts.”

That means those facts can’t be used to push the sentence beyond the normal sixyear range, Newsome said.

Walta said a new sentencing date should be set “which is all that Ms. Barton has ever sought.”

CONTACT THE WRITER: 636-0110 or dennis.huspeni@gazette.com