An Aspen man was sentenced Monday to 71 days in jail and four years of probation for having what a judge called more drugs in his possession “than we’ve seen at the end of this valley in a long time.”
Authorities said Thomas Simmons, 23, had cocaine, ecstasy, LSD, psychedelic mushrooms, hash and other drugs on his person and in his apartment when he was arrested in February 2012.
But he avoided a potentially lengthy sentence in state prison because of a case of mistaken identity by an Aspen police officer.
Because of that error, Aspen prosecutor Andrea Bryan reached a plea agreement with Simmons’ attorney, Garth McCarty of Glenwood Springs. Simmons in March pleaded guilty to a felony charge of possession of more than 4 grams of cocaine, and distribution counts were dropped.
In court Monday, Bryan said Simmons was a drug dealer who was selling “any assorted drug you can think of” to make money.
Bryan acknowledged the error by Aspen police officer Jeff Fain and said the “good-faith mistake” has allowed Simmons another chance to straighten out his life.
Fain initially detained Simmons on a tampering-with-evidence charge. Authorities mistakenly believed he was caught on surveillance footage at the Belly Up trying to hide two bags of ecstasy that another man dropped when he was arrested Dec. 24, 2011.
The tampering charge was soon dropped, and two other men pleaded guilty for roles in trying to hide the ecstasy, as did the man who dropped the baggies.
When Simmons was arrested on a warrant for the tampering charge, he had on his person 16 baggies containing cocaine and ecstasy, Fain testified in September.
Police then obtained a search warrant for his vehicle and Park Circle home. In the early hours of Feb. 5, 2012, according to the warrant, police uncovered 4.6 ounces of ecstasy and 1.6 ounces of cocaine hidden above a ceiling tile; 27 doses of LSD; a large blue pill of ecstasy; four pills of alprazolam (often sold as Xanax); several glass cylinders that Fain wrote are commonly used to consume small amounts of cocaine; and a digital scale.
Psilocybin mushrooms were found elsewhere in the apartment, according to police.
Simmons was charged with eight distribution and possession felonies, and faced a minimum of 12 years in prison upon conviction.
But McCarty attacked the initial and subsequent warrants, writing in a motion that Fain’s investigation was “reckless, dishonest and incompetent.”
Fain reviewed surveillance video of the Dec. 24, 2011 arrest with Belly Up general manager Siobhan Greene, according to the arrest warrant.
Greene told Fain that she didn’t know the name of the man who appeared to be hiding the drugs in the video, and couldn’t confirm if it was Simmons. She did say she was certain she had seen the person several times in the venue, knew him by sight and could identify him.
However, Fain, confident that the man on the video was Simmons, failed to ask Greene “to make a proper identification, and did not even simply show her a photograph of Mr. Simmons,” McCarty wrote. “Officer Fain made no attempt to confirm or dispel his belief that the individual Ms. Greene recognized was in fact Mr. Simmons.”
When Greene told police — after Simmons’ arrest — that the person trying to hide the baggies was not Simmons, then-prosecutor Arnold Mordkin dropped the tampering charge.
A veracity hearing that was to focus on Fain’s conduct in obtaining the warrants was canceled when the plea deal was reached.
At Monday’s sentencing hearing, Judge Gail Nichols of the 9th Judicial District, said there were risks for both sides had the veracity hearing and a trial occurred.
Simmons’ mother attended the sentencing hearing on Monday and told Nichols that her family has lived all of their lives in poverty.
And McCarty said Simmons essentially raised himself, noting that his client’s mother is disabled and that he cared for her growing up.
“He’s never had a parent as we can say we’ve had a parent, someone who’s encouraged us to do well in school ... and follow the more responsible dreams,” McCarty said.
Simmons was attracted to the drug lifestyle because he didn’t have any other options in life, the attorney said.
While Bryan had agreed to recommend that Simmons receive probation, the judicial district’s probation department advised that he should be sentenced to 90 days in jail.
The department’s recommendation cited the drug amounts and the severity of the charges, Bryan said.
Simmons mostly let a personal statement he wrote as part of the sentencing speak for him. He did say that his writing of the statement was an emotional experience.
“It was hard for me to find exactly what I wanted to say,” he said.
He wrote that there “is no pride or dignity in the sale of drugs,” Nichols said, reading a portion of Simmons’ statement.
Nichols agreed with the 90-day jail sentence, saying that he would have automatically received a prison sentence had he been convicted of distribution. Bryan also noted that Simmons recently tested positive for cocaine.
McCarty asked that Nichols suspend ordering him to jail until mid-May so Simmons can complete classes at Colorado Mountain College. Simmons said he is taking aerobic weight-training and dream-interpretation courses.
Nichols rejected that request, saying she wanted to get the jail sentence behind Simmons as soon as possible.
“Jail time is very appropriate given the outcome,” Nichols said.
Fain’s mistake “has turned out to be very good for the community,” she said, noting that Simmons’ arrest stopped some of the distribution of the drugs. The case also has allowed Simmons to work on his addiction problems, she said.
Nichols gave him credit for 19 days of time served, and a jail deputy took Simmons into custody.