January 16, 2018

Colorado Court of Appeals: Statutory “First Petition Filed with the Court” Language Does Not Encompass Later Additions

The Colorado Court of Appeals issued its opinion in People in Interest of I.S. on Thursday, December 14, 2017.

Juvenile—Sex Offender Registration—Exemption—C.R.S. § 16-22-103.

I.S., a juvenile, was originally charged in a delinquency petition with three felony counts of sexual assault on a child. Under a plea deal, the prosecution added a fourth misdemeanor count of unlawful sexual contact to its petition, to which I.S. pleaded guilty in return for the three felony counts being dismissed. At sentencing, I.S. argued that because the prosecution had added a misdemeanor offense to the first petition instead of filing a second petition, his misdemeanor offense had been charged in the first petition as required by C.R.S. § 16-22-103(5)(a)(III) and he was thus exempt from registering as a sex offender. Because the first petition filed with the court charged I.S. with the three felony counts of sexual assault on a child and not the misdemeanor, the district court ruled that I.S. must register as a sex offender.

On appeal, I.S. contended that the court erred in denying his request for exemption from sex offender registration. Under C.R.S. § 16-22-103(5)(a), a court may exempt a person from registering as a sex offender when five criteria are met, including the requirement that the first petition filed with the court must charge a misdemeanor offense of either unlawful sexual contact or indecent exposure. The “first petition filed with the court” does not encompass later amendments to that petition. Because the original petition in this case did not charge a misdemeanor offense of either unlawful sexual contact or indecent exposure, I.S. is not eligible for relief under this statute and must register as a sex offender.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Minimum Sentence for Indeterminate Range Should Be Three Times the Presumptive Maximum

The Colorado Supreme Court issued its opinion in Isom v. People on Monday, December 18, 2017.

Sentencing—Statutory Interpretation.

In this case, the Colorado Supreme Court considered the minimum end of a habitual sex offender’s indeterminate sentence pursuant to C.R.S. § 18-3-1004(1)(c). The court held that the enhanced minimum end in a habitual sex offender’s sentence is set to three times the presumptive maximum unless the court makes a finding of extraordinary aggravating circumstances pursuant to C.R.S. § 18-3-401(6), in which case the enhanced minimum end of the offender’s indeterminate sentence may be set anywhere between triple and sextuple the presumptive maximum otherwise prescribed for the offense.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Colorado Court of Appeals: Defendant Lacked Fixed Address and was Charged with Failure to Register as Sex Offender Under Incorrect Statute

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, September 7, 2017.

Sex Offender—Failure to Register—Evidence—Address—C.R.S. § 16-22-108(3)(i)—C.R.S. § 18-3-412.5(1)(g).

Jones was required to register as a sex offender. In 2011, he registered as a sex offender with the Aurora Police Department (Aurora P.D.) in Colorado. In August 2012, Jones was released from prison onto parole in an unrelated case, and he was given a voucher to stay at a particular motel in Aurora (and in Adams County). On August 12, 2012, Jones updated his sex offender registration with the Aurora P.D., listing the motel’s address as his new residence. On August 20, 2012, when the voucher expired, Jones left the motel and did not return. He did not report a change of address with the Aurora P.D. and did not register as a sex offender with any other local law enforcement agency in Adams County or in any other jurisdiction in Colorado until 2013. The People charged him with failure to register as a sex offender between August 26, 2012 and November 28, 2012.

At the close of evidence of his trial, Jones moved for a judgment of acquittal, arguing that (1) the prosecution presented no evidence of where he resided during the relevant time period, and (2) ceasing to reside at an address and thereafter lacking a fixed residence does not fall within the meaning of “changing an address” under C.R.S. 18-3-412.5(10(g). The trial court denied the motion, and Jones was convicted of the charge.

On appeal, Jones contended that the evidence at trial was insufficient to prove that he failed to register “upon changing an address” under C.R.S. § 18-3-412.5(1)(g). The Colorado Sex Offender Registration Act (Act), C.R.S. §§ 16-22-101 to -115, requires sex offenders to register with the local law enforcement agency where the person resides. C.R.S. § 16-22-108(3)(i) criminalizes the failure to register upon “ceasing to reside at an address and [thereafter] lacking a fixed residence.” A violation of this section must be charged under the catchall provision in C.R.S. § 18-3-412.5(1). Here, the prosecution elected to charge Jones only under C.R.S. § 18-3-412.5(1)(g), which criminalizes the “[f]ailure to register with the local law enforcement agency in each jurisdiction in which the person resides upon changing an address, establishing an additional residence, or legally changing names.” Although Jones was required to register as a sex offender in each jurisdiction where he resided, there was no evidence that Jones had a fixed residence during any portion of the relevant time period. Because the evidence at trial did not establish a violation of C.R.S. § 18-3-412.5(1)(g), he was wrongfully convicted under that statutory provision.

The judgment was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Evidence Sufficient to Prove Defendant Knowingly Failed to Register as Sex Offender

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, June 29, 2017.

Sex Offender—Registration—Evidence—Affirmative Defense—Uncontrollable Circumstances.

Wilson was required to register as a sex offender and failed to do so. He was then convicted of failure to register as a sex offender.

On appeal, Wilson contended that the evidence was insufficient to show that he knowingly failed to register as a sex offender. Wilson argued that because he was evicted from the motel he was staying at on the last day of the five-day period, he had an additional five days to register. A defendant is guilty of failing to register as a sex offender when, as relevant here, he does not register with his local law enforcement agency within five business days after being released from incarceration. The evidence is sufficient to support the fact that Wilson knowingly failed to register as a sex offender within five days of being released. Further, the statute required Wilson to register within five days of his release without regard to where he was living or whether his location changed during that five-day period.

Wilson next contended that the trial court erred in “disallowing the affirmative defense of uncontrollable circumstances.” However, lack of a fixed residence is not an uncontrollable circumstance, and Wilson did not present any credible evidence that uncontrollable circumstances existed that prevented him from registering as a sex offender. Thus, the trial court did not err in rejecting his affirmative defense.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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.

Colorado Court of Appeals: California Resident Required to Register as Sex Offender for Extended Visits in Colorado

The Colorado Court of Appeals issued its opinion in In re Stanley v. District Attorney for the 18th Judicial District on Thursday, March 9, 2017.

Sex Offender Registration—California Conviction.

In 2001, Stanley was convicted and sentenced in California of “unlawful sexual intercourse with [a] person under 18.” Stanley successfully completed his California probation and his conviction was eventually reduced to a misdemeanor.

In 2014, the California Department of Justice notified Stanley that his statutory requirement to register as a sex offender under the California Penal Code had been terminated. In 2015, Stanley filed a petition to discontinue his sex offender registration in the Arapahoe County District Court for a non-Colorado conviction under C.R.S. § 16-22-113. Stanley, who resided in California but had family in Colorado that he wanted to visit with in Colorado for potentially long periods of time, recognized that travel would result in him being considered a temporary resident of Colorado for purposes of sex offender registration.

The district court denied the petition, concluding as a matter of law that Stanley was ineligible for relief under C.R.S. § 16-22-113(3) because his crime, if committed in Colorado, would have been a violation of C.R.S. § 18-3-402 and consequently required lifetime sex offender registration.

On appeal, Stanley argued that the district court erred as a matter of law in interpreting C.R.S. § 16-22-113(3). He conceded that if committed in Colorado, his offense would have been a violation of C.R.S. § 18-3-402(1)(e), which is a class 1 misdemeanor and an extraordinary risk crime. The Colorado Court of Appeals concluded that the plain language of C.R.S. § 16-22-113(3) precludes Stanley, as a matter of law, from discontinuing his sex offender registration in Colorado.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

SB 17-087: Allowing Courts Discretion to Set Determinate Sentences for Certain Sex Offenders

On January 18, 2017, Sen. Irene Aguilar introduced SB 17-087, “Concerning Granting Judicial Discretion to Sentence a Defendant to an Indeterminate or Determinate Sentence for a Sexual Offense, and, in Connection Therewith, Requiring the Criteria and Basis for the Sentencing Decision to be Articulated on the Public Record.”

Currently, a court is required to sentence certain sex offenders to an indeterminate sentence that is a maximum of the sex offender’s life.

The bill allows the court to choose either the indeterminate sentence or a determinate sentence in those cases. The bill addresses the factors related to punishment and treatment that a court must consider when deciding between an indeterminate or a determinate sentence. The court must specify its reasons on the record for choosing either a determinate or an indeterminate sentence.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 8 at 1:30 p.m.

Colorado Court of Appeals: Photos May Be Considered “Erotic Nudity” if Recipient Uses Them for Sexual Satisfaction

The Colorado Court of Appeals issued its opinion in People in Interest of T.B. on Thursday, October 20, 2016.

Juvenile Sexual Exploitation of a Child—Delinquency Adjudication.

T.B. used his cell phone to solicit, receive, and store nude photographs of teenage girls who were 15 and 17 years old. He also texted them photographs of his erect penis. Among other offenses, the prosecution charged T.B. with sexual exploitation of a child. The sexual exploitation counts were severed. A jury acquitted him of the remaining counts.

After a bench trial on the sexual exploitation counts, the court adjudicated T.B. delinquent, sentenced him to sex offender probation, and required him to register as a sex offender.

On appeal, T.B. asserted that the evidence was insufficient to support his delinquency adjudication. He argued that because the girls did not take the photos for their own sexual satisfaction, the photos did not depict “erotic nudity,” a necessary component of the crime of sexual exploitation of a child. He also contended that the statutory reference to “persons involved” in the definition of erotic nudity necessarily means that the people displayed in the photograph must be sexually stimulated. The Colorado Court of Appeals disagreed, citing the Colorado Supreme Court’s rejection of the contention that the focus of the overt sexual gratification component of the definition of erotic nudity could only be the persons depicted in the photograph. The court of appeals concluded that the statutory requirement was met.

T.B. also argued that the chain of custody was insufficient to show that he knew that he possessed the nude photos on his cell phone. He contended that the chain of custody linking his cell phone and the photographs was insufficient because it did not show that the photographs were accurate copies of the photographs that were on his phone. The court found that the photos were found by the police on the T.B.’s cell phone, they were identified by the girls as photos they had taken of themselves and texted to him, and T.B. had complimented one of them on the photos. A digital forensic officer testified that the data in T.B.’s phone had not been tampered with, and the photographs had been opened and viewed. Accordingly, there was sufficient evidence to prove that T.B. knowingly possessed the nude photos.

T.B. also argued that because there was no “sexual abuse of a child” in the photos, the evidence was insufficient to support a conviction. The court found that the clear and unambiguous language of the statute does not contain such a requirement.

T.B. further argued that the statute does not cover “teen sexting.” The court found nothing in the language of the statute to support such an argument.

T.B. also contended that the trial court abused its discretion when it denied his request for a jury trial. The court concluded that the trial court did not abuse its discretion because its decision fell within a range of reasonable options.

Finally, T.B. argued that he was being selectively prosecuted because he was a male and the trial court should have dismissed the sexual exploitation charges. The court found that the prosecution was not motivated by a discriminatory purpose and concluded that the trial court’s decision was not manifestly arbitrary, unreasonable, or unfair.

The delinquency adjudication was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Privilege Against Self-Incrimination Precludes Revocation of Probation

The Colorado Supreme Court issued its opinion in People v. Roberson on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

The Supreme Court concluded that on the facts presented here, defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking his sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the Court, however, the Court was unable to determine whether defendant’s privilege against self-incrimination precluded the district court from revoking defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the Court made its rule to show cause absolute and remanded the case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Total Refusal of Sex Offender Treatment Based on Fifth Amendment is Prohibited

The Colorado Supreme Court issued its opinion in People v. Ruch on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

This case required the Supreme Court to determine whether the trial court properly revoked defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment. The Court perceived no Fifth Amendment violation here, where the trial court revoked defendant’s probation based on his total refusal to attend treatment. In these circumstances, defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the Court held that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Warrantless Search Condition of Supervised Release Not Limited to Sex Offenders

The Tenth Circuit Court of Appeals issued its opinion in United States v. Flaugher on Friday, November 13, 2015.

In 2006, Walter Flaugher pleaded guilty to one count of conspiracy to distribute methamphetamine and was sentenced to 57 months’ imprisonment followed by five years of supervised release. In 2014, the U.S. Probation Office filed a petition to revoke his supervised release based on several alleged violations. Flaugher stipulated to one of the violations, use of methamphetamine. The district court revoked his supervised release, sentencing him to 12 months and one day in prison followed by three years of supervised release. The district court also imposed a supervised release condition of submission to warrantless search, over Flaugher’s counsel’s objection.

Flaugher appealed, contending 18 U.S.C. § 3583(d) prohibits district courts from imposing the warrantless search condition other than for felons required to register under SORNA. The Tenth Circuit disagreed. The Tenth Circuit rejected Flaugher’s argument that the warrantless search provision applicable to defendants subject to SORNA is precluded for non-felons or felons who are not subject to SORNA. The Tenth Circuit noted that § 3583(d)’s “any other condition” provision specifically allows district courts to impose any condition of supervised release it deems necessary, as long as three limitations are met. This language does not preclude application of a warrantless search condition. The Tenth Circuit further noted that there is nothing in the SORNA warrantless search condition that limits it to sex offenders. The Tenth Circuit found that Flaugher’s proposed construction would render some of the text void or superfluous, and found that its own reading gave full effect to each of the words.

The Tenth Circuit affirmed the district court’s imposition of the warrantless search condition of supervised release.