Appeals court: Judge’s mistake means Nardi must be resentenced
February 8, 2018
A former Aspen bartender convicted of sexual assault in 2014 must be resentenced on that charge because the district judge in the case made a mistake, the Colorado Court of Appeals said in a decision issued Thursday.
Peter Nardi, 55, was convicted by a Pitkin County jury in April 2014 of felony sexual assault, felony attempted second-degree sexual assault, felony violation of bail bond conditions, two counts of misdemeanor assault and misdemeanor false imprisonment.
Three months later, then-District Judge Gail Nichols sentenced Nardi to 15 years to life in prison for the convictions.
The sexual-assault conviction carried the longest portion of the prison term. That "indeterminate sentence" of 11 years to life in prison means convicted sexual offenders such as Nardi have the choice of serving their sentence and obtaining treatment or staying incarcerated for life.
Nichols handed down the sexual assault sentence based on a determination that it was a "crime of violence" and an "extraordinary risk crime," according to the Court of Appeals decision. That meant the crime was aggravated and the sentencing range was higher than normal — in this case a minimum of 10 years to 32 years and a maximum of life in prison, the decision states.
However, in order for the sexual assault to be considered a crime of violence, it must involve assault with a deadly weapon, serious bodily injury or a victim 15 years old or younger, according to the decision. None of those conditions existed with Nardi, meaning he should have been sentenced to a minimum of four to 12 years and a maximum of life, the decision states.
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"Because the trial court was mistaken about the appropriate sentencing range, defendant's indeterminate sentence must be vacated and his case remanded for reconsideration within the proper range," according to the Court of Appeals decision.
A footnote in the decision points out that the 11-year minimum imposed by Nichols is within the sentencing range that should have been used and the District Court again could impose 11 years if it deems that number appropriate.
"However, even if the sentence is within the proper range, when it is imposed based on a misapprehension of the range, resentencing is still required," the footnote states.
The Colorado Public Defender's Office, which handled Nardi's appeal, also argued Nichols should have allowed evidence of the victim's controlling behavior. In addition, it said the judge should not have allowed police officers to testify about their observations of the victim after they responded to a 911 call reporting the sexual assault, according to the decision.
The Court of Appeals said Nichols acted appropriately in those instances.
Prosecutors wanted to resentence Nardi on the attempted sexual assault conviction, saying Nichols also misunderstood the sentencing range on that charge. The Court of Appeals, however, said prosecutors did not appeal that alleged mistake in time and that the sentence was legal under the law so it could not be changed, according to the decision.
The case against Nardi was based on sexual- and physical-abuse allegations made by a Texas woman he dated from August 2012 to April 2013. Prosecutors presented evidence during trial that Nardi was controlling, jealous of other men, verbally abusive and threatening to her, according to the Court of Appeals decision. In addition, forensic evidence supporting the sexual-assault claim also was provided to the jury, the decision notes.
Nardi is serving his sentence at the Bent County Correctional Facility in Las Animas, according to the Department of Corrections website.
Even if he completes whatever sentence is imposed, he won't be eligible for parole until he meets certain stipulations, including admitting guilt and completing an intense sex-offender rehabilitation program. Nardi repeatedly proclaimed his innocence after he was sentenced in July 2014, prompting one of his lawyers to say that he faced a serious dilemma because he believed he was innocent of sexual assault.
A message left Thursday at the Public Defender's Office was not returned. District Attorney Jeff Cheney declined to comment.
It was not clear Thursday when Nardi will be resentenced by Nichols' replacement, District Judge Chris Seldin.