Constitutional argument prompts judge to suspend sentencing hearing

A sentencing hearing scheduled for Tuesday for a Basalt man convicted of attempting to sexually assault a woman has been postponed after a defense attorney filed a motion arguing that the potential prison sentence to life is cruel, unusual and unconstitutional.

Robert Marlow, 41, appeared before Pitkin County District Judge Chris Seldin shackled at the ankles and wearing a tan inmate jumpsuit and orange jail shoes. About 15 minutes later, he returned to Pitkin County Jail, where he is being held without bail.

Seldin chose to postpone the sentencing hearing until October 4 so that the case could be argued by the parties involved before he rules on the motion. The parties include the Colorado Attorney General and the 9th Judicial District offices for the Public Defender and the District Attorney. The attorney general and the attorney general’s office had not formally responded to the request on Tuesday.



Failure to be fully briefed on the matter would open the door to “endless procedural journeys,” Seldin said.

“Unless someone makes it clear to me that they want to go ahead with sentencing today,” he said, “if you leave it to me, the court is not inclined to move forward because I have an argument, a constitutional argument that has been presented that is not fully informed and the petition was only filed five days ago.



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

“I definitely don’t want to rush this,” Troxell said. “We are taking about a sentence for the remainder of Mr Marlow’s natural life and I am happy to take more time to let the parties respond and to further inform these questions based on the prosecution’s response if the court wishes do so. way. But we are ready to move forward if the court agrees to do so.

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

“Frankly, just reading the cases in the defendant’s brief should prompt the court to dismiss this motion,” said Nottingham, who argued the sentencing hearing should proceed as scheduled.

After three days of hearing testimony and arguments at a trial in April, a jury also found Marlow guilty of false imprisonment and indecent assault. Both are misdemeanors and carry respective prison terms of 18 months and up to 364 days.

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

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

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

The victim, who was 23 at the time of the attack, was visiting Aspen and went out on the night of July 6, 2021, along with a family friend. At around 1 a.m. on 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 turned away to the men’s room, where shortly after Marlow, who was visibly drunk, burst in and backed her up against a wall, stopped her from leaving and started pulling down his pants and his boxers, testified the victim.

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 that she believed she would have been raped if she had not run away.

Troxell’s motion said the punishment faced by Marlow was too severe.

“It is unconstitutional to subject someone to a punishment disproportionate to the crime committed,” the motion argued. “Here, the attorney says the testimony at trial was clear that Mr. Marlow was very intoxicated, never touched any of the victim’s private parts and that the victim suffered no physical injury. Yet for this act, he now faces life imprisonment.

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

The victim “suffered from back pain after being pushed into the sink and had bruises on his legs after kicking Mr Marlow. She was unable to sleep that night. …Since being assaulted, (the victim) has suffered from indecisiveness, mood swings, dissociation, unhealthy eating habits and fear of being alone. The assault made her fearful and vulnerable, even in familiar places and at home. She has trouble concentrating, moving and communicating.

The victim, who lives in the Washington, DC area, has been in two car accidents since the attempted rape. She sprained her ankle from one of the accidents, the suit said.

“Before the attack, (the victim) had never been in a car accident,” the lawsuit said.

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

Marlow drank five beers and “several shots of hard liquor” at Eric’s, where a bartender offered him a free gram of cocaine and discounted liquor, the lawsuit alleges. The bartender is also named as a defendant in the lawsuit.

After several customers complained about Marlow’s behavior, management asked her to leave, according to the lawsuit. He walked across the street to Aspen Public House, where a bartender served him only water because he was visibly intoxicated, according to the lawsuit.

Marlow stayed at the facility for about 90 minutes, and during that time he made overtures to an off-duty Aspen Public House employee and followed another woman into the bathroom until management tell him to go back to his table, the suit said. Marlow was not kicked out until the third woman he saw, the victim, escaped the bathroom and told management what happened, the suit said.

“As a direct and immediate result of defendant Elk Mountain’s (the corporate name of Aspen Public House) failure to remove Mr. Marlow, warn other patrons of his behavior, or notify law enforcement of his behavior , (the victim) was followed, trapped, slammed against a wall, almost sexually assaulted, and suffered economic, emotional and physical harm,” the lawsuit said.

Aspen Public House responded to the complaint on August 8, denying any wrongdoing and arguing that Marlow’s behavior prior to the attack did not warrant his removal from the premises.

Eric’s Bar did not respond to the lawsuit on Friday.

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