A Durango man serving 10 years in prison for sexual assault involving a shotgun is renegotiating his plea agreement based on new evidence and a legal technicality that deemed his previous sentence illegal.
Testimony presented at a co-defendant’s trial and a Colorado Supreme Court decision last year forced prosecutors and defense attorneys to re-examine the case against James Zink, 20, who pleaded guilty in 2018 to second-degree assault, a Class 4 felony, and two counts of attempted sexual assault, a Class 5 felony.
Zink’s attorneys in May asked the court to release their client based on the new evidence presented at a trial in May that suggested his sexual contact with the alleged victim was consensual. District Court Judge William Herringer appointed the Colorado Public Defender’s Office in Durango to the case, which in July sought Zink’s release from prison.
Prosecutors moved in November to renegotiate Zink’s plea agreement after a Colorado Supreme Court decision in September that ruled it illegal to sentence a defendant to both probation and prison, further undermining the legal authority for Zink’s incarceration.
Zink appeared Friday in a La Plata County courtroom for the first time since Herringer sentenced him to 10 years in prison to be followed by 10 years of probation.
“The Legislature intended to allow courts to chose one or the other,” Supreme Court judges ruled in the case of Allman v. Colorado. “Probation is an alternative to prison.”
Prosecutors accused Zink of sexually assaulting a Fort Lewis College student in October 2017 with co-defendants Devin Bond and Anthony Fitts. Fitts pleaded guilty to second-degree assault and two counts of attempted sexual assault. Bond went to trial on accusations of sexual assault causing submission by overbearing the victim’s will, a Class 2 felony.
But at Bond’s trial, the alleged victim testified that at least some of the sexual acts on the night of the assault were consensual. Prosecutors moved to dismiss charges against Fitts, who at the time had spent eight months in prison.
Judge Herringer declared a mistrial in Bond’s case after he found a 12-person jury “hopelessly deadlocked” as to the defendant’s guilt. Bond spent 19 months in La Plata County Jail on $50,000 bail before his case was eventually dismissed after prosecutors discovered new evidence, which they declined to discuss.
In light of the Colorado Supreme Court decision and the new evidence in the case, prosecutors moved to offer Zink a new plea deal and dropped the assault charge, said 6th Judicial District Attorney Christian Champagne.
But Judge Herringer rejected the new plea agreement, in which Zink admitted to two counts of attempted sexual assault, which carry a possible sentence of one to three years in prison and a fine of $1,000 to $100,000.
A copy of the proposed plea agreement was not publicly available Friday – Assistant District Attorney Sean Murray declined to discuss the case citing a gag order. A court document from November says prosecutors were willing to agree to a maximum sentence of eight years in prison.
Prosecutors say Zink attempted sexual assault twice – once when he racked a shotgun to intimidate the alleged victim into sexual contact with the co-defendants and again when he attempted sexual contact with the woman.
But Herringer said he had “a bit of a problem” with the facts presented in the plea deal and asked prosecutors to craft a more thorough, accurate and precise agreement.
“There’s been too much confusion already in this case, and I don’t want to go ahead and have it unwind,” the judge said. “The factual basis needs to be consistent with what was testified to at the trial.”
Zink is scheduled to appear in court Wednesday.