May 21, 2018

Colorado Court of Appeals: Crime of Violence Sex Offense Sentence Cannot be Reduced to Probation

The Colorado Court of Appeals issued its opinion in People v. Al-Turki on Thursday, April 6, 2017.

Colorado Sex Offender Lifetime Supervision Act—Probation—C.R.S. § 18-1.3-406(1)(a) and (b)—Crime of Violence—Sex Offender.

Al-Turki was convicted under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA) of 12 counts of unlawful sexual contact through use of force, intimidation, or threat. The district court ultimately sentenced him to indeterminate prison terms of six years to life. Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under C.R.S. § 18-1.3-406(1)(a). The trial court denied the motion.

On appeal, Al-Turki contended that he was eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, C.R.S. § 18-1.3-406(1)(b), modified to probation under C.R.S. § 18-1.3-406(1)(a). The mandatory sentencing for violent crimes statute, C.R.S. § 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses (C.R.S. § 18-1.3-406(1)(b)) and those that do not involve sex offenses (C.R.S. § 18-1.3-406(1)(a)). C.R.S. § 18-1.3-406(1)(b) provides that defendants convicted of a sex offense that is a crime of violence “shall” be sentenced to an indeterminate term of incarceration. Thus, a crime-of-violence sex offender is not eligible for probation. Al-Turki was convicted of a sex offense that is a crime of violence. Therefore, the district court did not err in concluding that C.R.S. § 18-1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to probation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Four Year Age Difference Mandate for SORNA Registration Equals 48 Months

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Tuesday, December 9, 2014.

Jay Black pleaded guilty for one count of sexual abuse of a minor for a consensual act between him, an 18-year-old, and a 14-year-old victim. A comparison of their birthdays revealed that Black was 55 months older than the victim. Black contests that he is not required to register as a sex offender because the Sex Offender Registration and Notification Act (SORNA) provides that a person does not qualify as a sex offender if the victim is at least 13 years of age and the offender was not more than four years older than the victim. Black contended that, because he was 18 and the victim was 14, he need not register. The district court disagreed, concluding that § 16911(5)(C) requires a comparison of the offender’s and victim’s birth dates. Black appealed.

The Tenth Circuit affirmed, adopting the reasoning of the Third Circuit in a similar case, United States v. Brown, 740 F.3d 145 (3d Cir. 2014), which found that considering “years” to mean whole years only would lead to strange results in application of SORNA. The Tenth Circuit advanced an additional reason, in that Black’s interpretation could reach offenders who were barely more than three years older than their victim, and would exclude offenders who were nearly five years older. The Tenth Circuit found no grievous ambiguity necessary to implicate the rule of lenity, and affirmed.


Colorado Court of Appeals: SOLSA Encompasses Single Subject of Sex Offender Supervision and is Constitutional

The Colorado Court of Appeals issued its opinion in People v. Montgomery on Thursday, December 4, 2014.

Colorado Sex Offender Lifetime Supervision Act of 1998—Colorado Constitution—Subject Matter—Clear Express Requirement.

Montgomery pleaded guilty in three related criminal cases involving the sexual assault of three children. He was convicted of one count of sexual assault on a child and two counts of sexual assault on a child in a position of trust–pattern of abuse. The trial court sentenced Montgomery under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA) to two consecutive sixteen-years-to-life terms and one consecutive six-years-to-life term, denying Montgomery’s motion for post-conviction relief filed under Crim.P. 35(a).

On appeal, Montgomery argued that his sentence was illegal because SOLSA violates Article V, § 21 of the Colorado Constitution. SOLSA’s single-subject matter is the lifetime treatment and supervision of persons who commit sex offenses. Its goal is to rehabilitate sex offenders while mitigating the dangers they pose to the public when released from incarceration. The matters of sentencing, parole, and probation are properly connected because they are all means of accomplishing SOLSA’s single objective of lifetime supervision of convicted sex offenders. Therefore, SOLSA contains only one subject and, for that reason, does not violate the single-subject requirement. SOLSA is not unconstitutional merely because the terms “sentencing,” “parole,” and “probation” are not mentioned in its title. Accordingly, SOLSA does not violate the clear expression requirement of the Colorado Constitution, and the judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.