June 27, 2017

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.

Colorado Supreme Court: City Ordinance Effectively Barring Sex Offender Residence Does Not Conflict with State Law

The Colorado Supreme Court issued its opinion in Ryals v. City of Englewood on Monday, January 25, 2016.

Home Rule—Local Government Law—Land Use—Sex Offenders—Conflict in Matter of Mixed State and Local Concern—Preemption.

Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the Supreme Court held that state law does not preempt Englewood’s Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado’s statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender’s application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answered the certified question in the negative and returned this case to the Tenth Circuit for further proceedings.

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

Tenth Circuit: As-Applied Challenge to Special Condition Allowed Despite Failure to Object to Condition’s Imposition

The Tenth Circuit Court of Appeals issued its opinion in United States v. LeCompte on Tuesday, September 1, 2015.

In 2003, Paul LeCompte pleaded guilty in New Mexico state court to five counts of criminal sexual penetration due to a relationship he had with a 14-year-old girl when he was 29 years old. He was sentenced to 15 months in prison and was required to register as a sex offender. In 2010, he traveled from New Mexico to Nevada and failed to update his registration. He pleaded guilty, and at sentencing the district court judge imposed several conditions of supervised release, including a prohibition against associating with minors except in the presence of an approved responsible adult.

In 2014, LeCompte’s probation officer visited him at his grandparents’ home and saw LeCompte sitting on the porch with his grandparents, his then-girlfriend (now fiancee), and the girlfriend’s 3-year-old granddaughter. This presented a technical violation of his probation condition. After a polygraph test revealed that LeCompte may have had more contact with minors, an officer petitioned to revoke LeCompte’s supervised release. LeCompte moved to dismiss the petition, challenging the prohibition as applied. The district court held a hearing and denied LeCompte’s motion to dismiss, rejecting LeCompte’s as-applied challenge. He was sentenced to six months in prison and five years’ supervised release, subject to six sex offender special conditions. LeCompte appealed the denial of his motion to dismiss and challenged the procedural and substantive reasonableness of the six sex offender special conditions.

The Tenth Circuit evaluated LeCompte’s as-applied challenge, finding that the district court dismissed the challenge because LeCompte had not appealed when the special condition was imposed. The Tenth Circuit found that LeCompte need not have appealed the imposition of the special condition to raise an as-applied challenge. The Tenth Circuit found that because the condition could be imposed in a way as to violate a defendant’s rights, failure to appeal was not a procedural bar to an as-applied challenge. The Tenth Circuit noted that when a court imposes a condition of release, a defendant may not be able to anticipate that particular conduct will be prohibited, so allowing as-applied challenges accounts for unanticipated consequences. Turning to the district court’s denial of LeCompte’s motion to dismiss, the Tenth Circuit found that the district court failed to make findings connecting the condition of release to the charged conduct, and failed to consider LeCompte’s relevant characteristics in denying his as-applied challenge.

The Tenth Circuit reversed the district court’s denial of the motion to dismiss and remanded for further proceedings consistent with its opinion.

Tenth Circuit: Special Conditions of Supervised Release Require Particularized Findings of Fact

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Torres on Friday, July 31, 2015.

Belisario Dominguez Martinez-Torres pleaded guilty in New Mexico District Court in 2008 to possession with intent to distribute 50 kilograms or more of marijuana. He was sentenced to 30 months’ imprisonment followed by three years of supervised release. The district court imposed special conditions of supervised release and subsequently modified those conditions. Later, the probation office filed a request to revoke supervised release, alleging Defendant violated a new special condition by failing to return to his residential reentry center. Defense counsel asked the court to fashion a sentence that would allow Defendant to meet his familial obligations, noting Defendant had not committed any crimes, was employed, and did not use alcohol or drugs. The district court imposed a sentence of two months’ imprisonment and two years of supervised release with seven special conditions, including three that became the subject of the appeal: (1) a restriction on the use or possession of alcohol or other substances, (2) sex offender evaluation and treatment based on a prior conviction, and (3) a prohibition on possession or viewing of any pornographic material.

Defendant objected only to the third condition in district court but on appeal argued all three were impermissible. The government conceded the first two restrictions were impermissible and the Tenth Circuit agreed. The Tenth Circuit considered the reasonableness of the third restriction after admonishing that if the parties had devoted more time at sentencing to issues beyond incarceration, these issues would not be before its docket as they are all too often. Addressing the issues at hand, the Tenth Circuit agreed with Defendant that the pornography restriction is not reasonably related to his history or other statutory factors. The Tenth Circuit noted that the district court’s sole expressed reason for the restriction was Defendant’s prior sexual offense, and stated that that was not enough to justify the restriction. The district court needed to make an individualized assessment of whether it was appropriate for Defendant. The Tenth Circuit analyzed other cases in which similar restrictions were imposed and determined that the lack of an individualized inquiry in Defendant’s case required reversal of the restriction.

The Tenth Circuit reversed the imposition of the three special conditions and remanded to the district court.

Colorado Court of Appeals: Sex Offender Registration Not Punishment so No Eighth Amendment Violation for Juvenile Offender Registration Requirement

The Colorado Court of Appeals issued its opinion in People in Interest of J.O. on Thursday, August 27, 2015.

Juvenile—Unlawful Sexual Contact—Indecent Exposure—Sex Offender Registration—Evidence—Eighth Amendment.

J.O., who was 15 years old at the time of the charged offenses, was adjudicated delinquent for acts that, if committed by an adult, would constitute misdemeanor unlawful sexual contact, attempted misdemeanor unlawful sexual contact, and two counts of indecent exposure. As part of adjudication, J.O. was required to register as a sex offender.

On appeal, J.O. argued that the trial court erred in ordering him to register as a sex offender because (1) he met the criterion for the magistrate to exempt him from registration, (2) the registration violated his rights under the Eighth Amendment, and (3) (1) the evidence was not sufficient to support the adjudication. Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in CRS § 16-22-103(5)(a)(III) for exemption from sex offender registration. Additionally, because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights. Finally, there was sufficient evidence showing that J.O. possessed the requisite intent for unlawful sexual contact and indecent exposure.Therefore, the evidence was sufficient to support his adjudication. The judgment was affirmed.

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

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.