Constitutional argument prompts judge to hold off sentencing hearing

Basalt man was convicted of attempted sexual assault. Defense lawyer filed a motion that the potential punishment of life in prison is unconstitutional.

A sentencing hearing scheduled Tuesday for a Basalt man convicted of attempting to sexually assault a woman was rescheduled after a defense lawyer filed a motion arguing that the potential punishment of life in prison is cruel, unusual and unconstitutional.

Robert Marlow, 41, appeared before Pitkin County District Judge Chris Seldin shackled at the ankles and wearing a beige inmate jumpsuit and orange jail shoes. Roughly 15 minutes later he headed back to Pitkin County Jail, which is where he is incarcerated without bond.

Seldin opted to postpone the sentencing hearing until Oct. 4 so that the matter can be argued over by the parties involved before he rules on the motion. Parties include the Colorado attorney general and the 9th Judicial District offices for the public defender and district attorney. Both the DA and attorney general’s office had not formally responded to the motion as of Tuesday.

Not having the matter fully briefed would open the door for “unending procedural journeys,” Seldin said.

“Unless someone tells me clearly they want to go forward to sentencing today,” he said, “if you are leaving it up to me, the court is disinclined to move forward because I have an argument, a constitutional argument that has been presented that is not fully briefed, and the motion was filed only five days ago.”

Public defender Scott Troxell, who filed the motion, agreed.

“I certainly don’t want to rush this,” Troxell said. “We’re taking about a sentence to the rest of Mr. Marlow’s natural life and I’m happy to take more time to let the parties respond and to further brief these issues based on the prosecution’s response if the court would like to proceed that way. But we are prepared to move forward if the court was like to do that.”

The odd one out was prosecutor Don Nottingham, who argued the defense’s challenge had little hope of succeeding.

“Frankly, reading the cases in the defendant’s brief alone ought to sway the court to reject this motion,” said Nottingham, who argued the sentencing hearing should go on as scheduled.

Following three days of hearing testimony and arguments during an April trial, a jury found Marlow also guilty of false imprisonment and indecent exposure. Both are misdemeanors and carry respective jail sentences of 18 months and up to 364 days.

The jury also determined Marlow used “force of violence” in July 2021 when he tried to rape the woman, who was 23 years old at the time. That finding could result in a prison sentence of two to six years to life, as well as a parole term that could last anywhere from 10 years to life if and when he is released from prison.

The potential for life behind bars for Marlow prompted Troxell to file a motion Thursday challenging the applicability Colorado’s Sex Offender Lifetime Supervision Act of 1998 to Marlow’s sentence. Also called a “facial challenge,” the motion questions the act’s constitutionality as it relates to Marlow’s case.

Marlow testified at trial that he’d been consuming alcohol and cocaine that night and did not remember what happened in the bathroom, other than the woman screaming. He said, however, that he remembered most other details of the evening, including arriving at the Aspen Public House and sitting at a table outside of the men and women’s restrooms.

The victim, who was 23 at the time of the attack, was visiting Aspen and went out the night of July 6, 2021, with family friend. Around 1 a.m. July 7, she went to the women’s bathroom at the Public House where she saw Marlow standing with his pants unbuttoned, the victim testified.

She then diverted to the men’s bathroom, where soon after Marlow, who was visibly drunk, came barging in and backed her to a wall, blocked her from leaving and began pulling down his pants and boxers, the victim testified.

The woman said after Marlow told her “You’re not going anywhere,” she screamed and punched and kicked him and was able to escape the bathroom. She also testified she believed she would have been raped if she had not gotten away.

Troxell’s motion said the punishment Marlow faces is too severe.

“It is unconstitutional to subject someone to a sentence that is disproportionate to the crime committed,” the motion argued. “Here, counsel asserts that the testimony at the trial was clear that Mr. Marlow was highly intoxicated, never touched of any of the victim’s intimate parts, and that the victim did not sustain any physical injuries. Yet for this act, he now faces life in prison.”

A lawsuit the victim filed July 1 in Pitkin County District Court tells a different story.

The victim “suffered back pain from being pushed into the sink and had bruises on her legs from kicking at Mr. Marlow. She was unable to sleep that night. Since being attacked, (the victim) has suffered from indecisiveness, unstable moods, dissociation, unhealthy eating habits, and fear of being alone. The assault has made her feel fearful and vulnerable, even in familiar places and at home. She has a hard time focusing, emoting, and communicating.”

The victim, who lives in the Washington, D.C., area, has had two automobile accidents since the attempted rape. She sprained an ankle from one of the accidents, the suit said.

“Prior to the attack, (the victim) had never been in a car accident,” the suit said.

The victim is suing both Eric’s Bar and Aspen Public House for liability in Marlow’s attack.

Marlow had five beers and “multiple shots of hard liquor” at Eric’s, where a bartender plied him with a free gram of cocaine and discounted liquor, the suit alleged. The bartender also is named as a defendant in the suit.

After several customers complained about Marlow’s behavior, management asked him to leave, the suit said. He crossed the street to Aspen Public House, where a bartender would only serve him water because he was so visibly intoxicated, the suit said.

Marlow stayed at the establishment for about 90 minutes, and during that time he made overtures toward an off-duty Aspen Public House employee and followed another woman to the bathroom until management told him to return to his table, the suit said. Marlow wasn’t thrown out until the third woman he eyed, the victim, escaped from the bathroom and told management what happened, the suit said.

“As a direct and proximate result of Defendant Elk Mountain’s (the corporate name of Aspen Public House) failure to remove Mr. Marlow, warn other customers of his behavior or notify law enforcement of his behavior, (the victim) was followed, trapped, slammed into a wall, almost sexually assaulted, and she has suffered economic, emotional and physical damages,” the suit said.

Aspen Public House answered the complaint Aug. 8, denying any wrongdoing and arguing Marlow’s behavior before the attack did not merit him being removed from the premises.

Eric’s Bar had not responded to the suit as of Friday.


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