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"A slap in the face:" Accomplice in Kelsey Berreth's murder has three-year prison sentence thrown out

Krystal Kenney will be resentenced, her attorneys hope for release
Krystal Kenney mugshot
Posted at 4:35 PM, Feb 18, 2021
and last updated 2021-02-19 02:57:17-05

TELLER COUNTY — The three-year prison sentence of an Idaho nurse who helped clean up the crime scene left behind after Patrick Frazee murdered his fiance Kelsey Berreth has been vacated.

Krystal Kenney was sentenced in January 2020 to three years in prison, as part of a plea deal where she testified against Frazee and pleaded guilty to tampering with evidence. Kenney has served around 13 months of that sentence. She will now be resentenced.

Kenney, Frazee's mistress, provided prosecutors all the essential information on how Frazee killed Berreth beating her to death with a baseball bat while she was blindfolded with a sweater to sniff candles. She also admitted to helping Frazee clean up the crime scene, but said she intentionally left evidence for investigators to find.

"We did a deal with the devil. There is no ifs, ands or buts about that, and I'm not proud of that. But, there's no question that Kelsey wouldn't have had the sure justice without making that deal with the devil," former District Attorney of the 4th Judicial District, Dan May, said following Frazee's trial.

As a result of her testimony, Frazee is now serving a life sentence without the possibility of parole, plus 156 years.

"You make a deal with the devil, sometimes the devil comes back and gets their due."
Stephen Longo, Attorney

News5 spoke with Kenney's attorney, Dru Nielsen, who explained how this decision was reached by the Colorado Court of Appeals. "Prior to the sentencing, I filed an extensive briefing explaining why the range that the judge could sentence her to was one to one and a half years, which is what Krystal had agreed to and negotiated with Dan May. The judge didn't agree with me at that time, but now the Court of Appeals has fully reviewed that decision and has agreed with Krystal," said Nielsen on Thursday afternoon.

CLICK HERE to read the full decision by the Colorado Court of Appeals.

The maximum prison sentence in Colorado for tampering with evidence is 18 months. However, that number was doubled in Kenney's case, because she was charged within the aggravated range of sentencing. Nielsen said that should have never happened.

The objection filed by Nielsen in December of 2019 states: "The language that the District Attorney attempted to insert into the plea paperwork - “[t]he Defendant further stipulates to the existence of extraordinary aggravating circumstances that would allow the court to sentence in the aggravated range” - was specifically and intentionally removed from the final paperwork as it was not part of the operative December 20, 2018 agreement."

Also in that document, Nielsen writes that Kenney never waived her Blakely rights. Nielsen stated the maximum sentence the court could impose in this case was 18 months. "The Court of Appeals agreed with the argument that we made at sentencing. I think it was the right decision, and I'm very happy for Krystal that she's going to be resentenced, because she's currently serving an unconstitutional sentence," said Nielsen.

Objection to aggravated range sentencing
Court documents show Kenney's defense filed this objection to the aggravated sentencing range in December of 2019.

CLICK HERE to read the full objection to the aggravated range sentencing that was filed by Kenney's defense team, a little more than a month before her sentencing in January of 2020.

Nielsen was not sure when Kenney's resentencing could be, and said that was a question for the 4th Judicial District. However, she hopes to see her client released from prison, when the time does come. "I believe that she should be getting out. That she has served her sentence, and any additional time is unconstitutional at this point, and unlawful. I believe it's an unlawful sentence," said Nielsen.

News5 reached out to one of Berreth's uncles to see if her family had a statement on Kenney's sentencing being vacated.

This is the first I am hearing of it. I can say that I am disgusted and feel this is a slap in the face to our family and the memory of Kelsey.
Scott Morin, Berreth's uncle

Attorney Stephen Longo spoke with our reporter Colette Bordelon, to add some perspective to the court documents. "A known risk, maybe a preventable one, but a known risk in making a plea agreement with someone where you're going to rely on aggravated factors to maximize their sentence. And at the end of the day, the record did not support those aggravating factors," said Longo.

To put why Kenney's sentence was thrown out simply, Longo said "there wasn't an admission by Kenney to any 'aggravated' as part of her plea deal. And that's why she can't have aggravated sentencing."

Longo said hypothetically, this could be brought to a higher court, but he does not predict that happening. "The district attorney's office knew what they were doing. They probably understood that there was some risk to this at some point. But at the end of the day, their goal was to put Patrick Frazee behind bars, and they accomplished that goal. And they did it through her testimony, and while they may not like this result or be happy with it, I think at the end of the day, their ultimate goal was accomplished," said Longo.

I thought the three year prison sentence was way too easy considering what she has done, but long before anyone was sentenced, I found peace in the knowledge that Kelsey's murderers would eventually have to answer to God for what they did. And our God is a god of perfect justice.
Nicole Morgan Haywood, Berreth's childhood friend

The 4th Judicial District told News5 they are reviewing the ruling. They plan to have an update for the public on Friday.

RELATED:

Patrick Frazee Trial

Kenney primed for key witness role in Frazee murder trial

Krystal Kenney pleads guilty to tampering charge, will testify against Frazee

'Cold, calculating and cruel': Krystal Kenney sentenced to 3 years in prison