Mesa County Clerk Sentence Violated First Amendment by Relying on “Her Protected Speech Regarding Allegations of Election Fraud”

First, some backstory from NBC News (Gary Grumbach & Dareh Gregorian):

[Tina Marie] Peters was convicted of four felony and three misdemeanor charges in August 2024 for using another person’s security badge to allow someone associated with MyPillow founder Mike Lindell, a prominent election denier and ally of President Donald Trump, access to county election equipment involving Dominion Voting Systems.

In Thursday’s long opinion in People v. Peters, Colorado Court of Appeals Judge Ted Tow, joined by Judges Craig Welling and Lino Lipinsky de Orlov,  decided Thursday by the Colorado Court of Appeals, in an opinion by Judge Tow, affirmed the conviction, holding (among other things):

1. President Trump’s pardon of Peters could only affect federal offenses, and not the state offenses for which he was convicted (a pretty well-settled principle, since the pardon power extends only to “offenses against the United States,” which is generally understood as violations of federal law).
2. Peters didn’t have any Supremacy Clause immunity from state prosecution, because such immunity just affects federal officers discharging their federal responsibilities.
3. There was sufficient evidence that Peters was responsible for false representations alleged by the prosecution.

But the court concluded that Peters’ sentencing (which led to a sentence of 6 months in jail plus 8¼ years in prison) violated the First Amendment by “punish[ing] her based on her protected speech regarding allegations of election fraud”:

During sentencing the court said,

There are many things in my mind that are crystal clear about this case. You are no hero. You abused your position and you’re a charlatan who used and is still using your prior position in office to [peddle] a snake oil that’s been proven to be junk time and time again. In your world, it’s all about you.

The court later said,

So the damage that is caused and continue[s] to be caused is just as bad, if not worse, than the physical violence that this court sees on an all too regular basis. And it’s particularly damaging when those words come from someone who holds a position of influence like you. Every effort to undermine the integrity of our elections and public’s trust in our institutions has been made by you. You’ve done it from that lectern. The voting public provided you with everything you’ve done has been done to retain control influence [sic]. The damage is immeasurable. And every time it gets refuted, every time it’s shown to be false, just another [tale] is weaved.

… “[A] court may not punish an individual by imposing a heavier sentence for the exercise of [F]irst [A]mendment rights…. A sentence based to any degree on activity or beliefs protected by the [F]irst [A]mendment is constitutionally invalid.” …

Courts have affirmed sentences premised on speech or associational activity when it was relevant to the sentencing decision. See, e.g., United States v. Stewart (2d Cir. 2012) (explaining that the defendant’s public statements were relevant sentencing considerations because they demonstrated her lack of remorse and belief that her previous sentence was not serious); United States v. Simkanin (5th Cir. 2005) (noting the district court’s finding that the defendant’s “membership in a group with radical views rejecting the laws of the United States and … professed beliefs that he is not required to abide by the tax laws would lead him to commit other tax-related crimes”); People v. Tresco (Colo. Ct. App. 2019)  (“[W]e conclude that evidence of gang affiliation is not per se inadmissible during sentencing if it is related to the nature of the offense and the defendant’s character, not merely his abstract beliefs.”); State v. Warfield (Idaho Ct. App. 2001) (holding that, in imposing sentence, the trial court properly considered the defendant’s statement that he spared the victim’s life only because she was white and explaining that the defendant’s “racist belief system was relevant in assessing the danger he present[ed] to society, a factor that is unquestionably legitimate for consideration by a sentencing court”); State v. Schreiber (Wisc. Ct. App. 2002) (concluding that the trial court did not err by considering the defendant’s poetry in imposing sentence because the poems reflected the defendant’s violation of his parole condition that he refrain from gang activity).

In Colorado, sentencing courts are to consider “the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law and the deterrence of crime, and the protection of the public.” Here, the trial court’s comments about Peters’s belief in the existence of 2020 election fraud went beyond relevant considerations for her sentencing. Her offense was not her belief, however misguided the trial court deemed it to be, in the existence of such election fraud; it was her deceitful actions in her attempt to gather evidence of such fraud. Indeed, under these circumstances, just as her purported beliefs underlying her motive for her actions were not relevant to her defense, the trial court should not have considered those beliefs relevant when imposing sentence.

To be sure, many of the trial court’s statements indicated wholly appropriate considerations. The court’s view that Peters was motivated by self-promotion and self-interest, for example, was fully within the court’s discretion to articulate and consider, as was her evident lack of remorse. But several specific statements can be read only as the infliction of punishment because of Peters’s beliefs and statements about election fraud. For example, the court noted that her “words” were particularly damaging because of the position of influence she held; and it noted that every time her beliefs were refuted, she would make a new claim….

The tenor of the court’s comments makes clear that it felt the sentence length was necessary, at least in part, to prevent her from continuing to espouse views the court deemed “damaging.” But the court failed to acknowledge that Peters is no longer the Mesa County Clerk and Recorder. She is no longer in a position to engage in the conduct that led to her conviction. So it cannot be said that the lengthy prison sentence was for specific deterrence. To the contrary, the sentence punished Peters for her persistence in espousing her beliefs regarding the integrity of the 2020 election.

For these reasons, we conclude that the trial court obviously erred by imposing sentence at least partially based on Peters’s protected speech. See Dawson v. Delaware (1992) (concluding that the defendant’s “First Amendment rights were violated by the admission of … Aryan Brotherhood evidence … because the evidence proved nothing more than [the defendant’s] abstract beliefs”); Stewart (“It is impermissible to sentence a defendant more harshly based on associations that do not relate to specific criminal wrongdoing, for example, or for beliefs that some might find morally reprehensible, or for critical statements made in public because they were made in public.”)….

Thus, we must remand the matter for resentencing. In doing so, we reject Peters’s conclusory and undeveloped request to require that the case be assigned to a different district court judge. Any such request must first be pursued in the district court….