DENVER — The Colorado Court of Appeals this week found a procedural error and vacated the sentence for Krystal Kenney, the Idaho woman accused of tampering with evidence in the 2018 death of Kelsey Berreth in Teller County.
Kenney, who last year received a three-year sentence for her role in Berreth's death, will be re-sentenced in the case after the appeals court ruled that the judge in her case made a procedural error, according to the appeals court ruling released Thursday.
Kenney had an intimate relationship with Patrick Frazee, the man who was found guilty in November 2019 of murdering his fiancé, 29-year-old Kelsey Berreth, on Thanksgiving Day 2018. In November 2019, Frazee was found guilty of all counts against him and was sentenced to life without parole plus 156 years.
As part of a plea deal with prosecutors, Kenney pleaded guilty to tampering with physical evidence and agreed to testify at Frazee's murder trial, which carries an 18-month sentence.
However, during the sentencing, the judge decided that there were aggravating factors and so he sentenced her to three years in prison.
Aggravating factors include things like if the defendant committed the crime while they were on parole or on probation or have a serious criminal history.
"In order for the judge to make those findings, it needs to be given to a jury and a jury has to decide that one of those factors exist. Here there was no jury, the jury never decided that factor existed and so therefore the judge was not allowed to sentence her to more than 18 months," Beller said.
The appeals court ruled that District Court Judge Scott Sells did not "specifically inform" Kenney in her plea hearing that she had a right to have a jury "determine aggravating facts beyond a reasonable doubt."
Sells advised Kenney that she would be "giving up some significant, substantial constitutional rights" by pleading guilty in the case, the appeals court ruling said, including the right to have a jury determine all issues of guilt beyond a reasonable doubt.
Sells also told Kenney that she could receive a sentence of up to three years if the court found aggravating factors.
"But nothing in the record reflects 'at a minimum' that (1) the court advised Kenney of her Blakely rights and the consequences of waiving them, and (2) Kenney nevertheless chose to waive them," the appeals court ruling said.
Blakely rights mean that a court may only aggravate a defendant's sentence under certain circumstances, and Sells, during the sentencing, determined Kenney's sentenced could be aggravated.
"No one messed up in this circumstance. The judge just thought that he had more right to sentence her outside of that plea agreement than what he was ultimately allowed to do. So this was a legal error. It was a procedural error, but it doesn’t mean anyone necessarily did anything wrong. They just misapplied the law," said David Beller, a legal analyst.
Kenney in an appeal argued that the sentence violated her Blakely rights, and the appeals court ruled that her situation was not Blakely-exempt, considering she did not have any prior convictions and did not stipulate to judicial factfinding for her sentencing.
The 4th Judicial District Attorney's Office, which prosecuted Kenney and Frazee, said in a statement Thursday that "we are reviewing the decision."
On Friday, the district attorney's office said it would be sharing its opinion with the Colorado Attorney General's Office.
It was unclear Thursday when Kenney's case would be returned to district court for resentencing. She remained in a state prison Thursday afternoon. Before her three-year sentence was vacated, her estimated release date was July 7, 2022, according to the state parole board.
"Miss Kenney has served 13 months in custody. If the judge were to give her the maximum he could give her which is 18 months with good time credit she will very likely be released and then she’s going to have to serve a period of parole," Beller said.
As part of the plea deal, Kenney provided prosecutors with precise details about how Frazee had asked her to kill Berreth on multiple occasions, and then demanded that she leave Idaho to come clean up the murder scene after Thanksgiving. Kenney obeyed this command and in court, explained the horrific scene she found at Berreth’s home in Woodland Park. She also described that Frazee said he had beat Berreth to death with a baseball bat and put her in a black tote, and that she joined him as he burned the tote on his property in Florissant.
After Frazee's verdict, prosecutors said they were happy with the outcome and satisfied that Kenney’s testimony had helped the case, but knew that they had “made a deal with the devil” by offering Kenney a plea agreement.