June 25, 2019

Colorado Court of Appeals: Plain Language of C.R.S. § 18-1.3-202 Allows Incarceration for Each Specific Grant of Probation

The Colorado Court of Appeals issued its opinion in People v. Gravina on Thursday, February 28, 2013.

Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and aMaxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

Summary and full case available here.

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