In re People

• Decision Date: 13 December 2018
• Docket Number: Court of Appeals No. 16CA0385
• Citation: 452 P.3d 133
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF C.M.D., Juvenile-Appellant.
• Court: Colorado Court of Appeals

452 P.3d 133

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF C.M.D., Juvenile-Appellant.

Court of Appeals No. 16CA0385

Colorado Court of Appeals, Division II.

Announced December 13, 2018

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

Opinion by JUDGE VOGT^*

¶ 1 C.M.D. was adjudicated delinquent based on an incident involving unlawful sexual contact. At sentencing, he was ordered to register as a sex offender under the Colorado Sex Offender Registration Act (CSORA), §§ 16-22-101 to - 115, C.R.S. 2018. Because C.M.D. had a previous adjudication for unlawful sexual contact, the magistrate was statutorily precluded from waiving the registration requirement, and C.M.D. is not eligible to petition to discontinue the registration.

¶ 2 On appeal, C.M.D. contends that, as applied to him and similarly situated juveniles, the CSORA violates constitutional prohibitions against cruel and unusual punishment and constitutional due process rights. Under the circumstances of this case, we disagree. We therefore affirm the order requiring C.M.D. to register as a sex offender.

I. Background

¶ 3 At the time of the incident giving rise to the order, C.M.D. was serving a sentence in the Department of Youth Corrections (DYC) based on prior adjudications, one of which was also for unlawful sexual contact. Although the incident was reported to have occurred when C.M.D. was seventeen and a half years old, the petition in delinquency was not filed until one year later, when C.M.D. was eighteen and a half.

¶ 4 The petition alleged that C.M.D. had committed unlawful sexual contact against another DYC resident, who was then seventeen. C.M.D. had reported the incident to his case manager, stating that he "grabbed a girl’s ass" and that he did it because he "felt aroused and couldn't help himself." The victim told law enforcement personnel that she had been in a transport van with C.M.D. and another girl on the way to court appearances. In the elevator at the courthouse, she felt C.M.D.’s hand brush her bottom, but was not sure if it was intentional. She then said that

[w]hen they were leaving court getting ready to get back in the transport van, she did not want to sit next to C.M.D. ... [H]e kept touching her back throughout the drive.

She told him to stop several times and he did not stop. He was only touching her back at this point, but this made her mad and uncomfortable.

When they arrived back at DYC ... C.M.D. scooted closer to [her], [and] grabbed her butt two times.

¶ 5 The People filed a petition in delinquency alleging that C.M.D. had committed an act which, if committed by an adult, would constitute misdemeanor unlawful sexual contact under section 18-3-404(1)(a), C.R.S. 2018. In exchange for dismissal of the charge, C.M.D. pleaded guilty to third degree assault, § 18-3-204(1)(a), C.R.S. 2018, with an underlying factual basis of unlawful sexual contact. The court sentenced C.M.D. to up to six months in the custody of the DYC, the sentence to run concurrent with his sentences in four other cases. C.M.D. acknowledged at the plea hearing that he knew he would be required to register as a sex offender.

¶ 6 As noted, this was not C.M.D.’s first adjudication for an offense with an underlying factual basis of unlawful sexual contact. He had previously been adjudicated for sexually assaulting his sister over the course of three to five years, beginning when she was approximately four years old and he was approximately six years old. The conduct giving rise to the adjudication included forced oral sex, digital penetration of the vagina, and attempted penile-vaginal intercourse. At sentencing in this case, the magistrate noted that he had no discretion to decline to impose the sex offender registration requirement, and then commented:

Even if I'd had discretion, I would feel somewhat conflicted about not requiring [C.M.D.] to register.... [C]onsidering some of the factors if I were allowed to under [ section 16-22-103(5)(a) ], considering that, certainly lifetime registration would seem unfairly punitive under these circumstances.

But, it’s not the adjudication for this offense that makes it unfairly—that makes it lifetime. It’s the—of course, the existence of the other offense. But, the risk to the community may require that registration. And so, if I had that discretion, I'm not sure that I would actually go—and exercise that discretion.

¶ 7 C.M.D. petitioned for district court review of the magistrate’s order, arguing, among other things, that requiring him to register as a sex offender amounted to cruel and unusual punishment. The district court disagreed, citing cases holding that the requirement to register is not punishment, and adding:

However, even if the requirement to register were punishment, such a requirement here would neither be unfairly punitive nor cruel and unusual because of the Juvenile’s prior adjudication for unlawful sexual behavior. With two adjudications for this type of behavior, community safety requires registration. Such conclusion is necessary because the statute specifically permits the exception for only someone who has no prior for this type of behavior.

II. Cruel and Unusual Punishment

¶ 8 C.M.D. contends that mandatory, lifetime sex offender registration under CSORA violates federal and state constitutional prohibitions against cruel and unusual punishment, as applied to him and similarly situated juveniles. We disagree.

A. Standard of Review

¶ 9 We review the constitutionality of a statute de novo. See People v. Sabell , 2018 COA 85, ¶ 46, 452 P.3d 91. Statutes are presumed to be constitutional. Qwest Servs. Corp. v. Blood , 252 P.3d 1071, 1083 (Colo. 2011). Thus, the burden is on the party challenging a statute to prove that it is unconstitutional beyond a reasonable doubt. Id. ; People v. Dash , 104 P.3d 286, 290 (Colo. App. 2004).

B. CSORA

¶ 10 The CSORA provides that "any person who is convicted in the state of Colorado of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior ... shall be required to register" as a sex offender. § 16-22-103(2)(a), C.R.S. 2018. This registration requirement applies equally to adult convictions and to juvenile adjudications based on the commission of any act that may constitute unlawful sexual behavior. § 16-22-103(4).

¶ 11 Section 16-22-103(5)(a) permits sentencing courts to exempt offenders from the registration requirement if the court determines that the requirement would be unfairly punitive and that exempting the person would not pose a significant risk to the community. However, this provision applies only if the person was under eighteen at the time of the commission of the offense and had not been previously charged with unlawful sexual behavior. Id.

¶ 12 Additionally, section 16-22-113(1), C.R.S. 2018, outlines circumstances in which offenders may petition the court to discontinue the registration requirement. However, the option to discontinue registration is not available to persons with more than one conviction or adjudication for unlawful sexual behavior. § 16-22-113(3)(c) ; see People v. Atencio , 219 P.3d 1080, 1082 (Colo. App. 2009).

¶ 13 As noted, neither of these options was available to C.M.D. because of his previous adjudication for unlawful sexual behavior. Thus, the court was statutorily required to order C.M.D. to register as a sex offender for the rest of his life.

C. The CSORA Is Not Punishment

¶ 14 The United States and Colorado Constitutions prohibit cruel and unusual punishment. U.S. Const. amend. VIII ; Colo. Const. art. II, § 20.

¶ 15 To decide whether this prohibition is implicated, we must first determine whether the challenged requirement is punishment. See People in Interest of J.O. , 2015 COA 119, ¶ 21, 383 P.3d 69. In making this determination, we initially look to the statute to see whether the legislature intended the requirement to be punishment. See Smith v. Doe , 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (legislative intent as expressed in statute supported conclusion that Alaska sex offender registration statute was non-punitive). Where the legislature has clearly stated its intent to create a non-punitive regulatory scheme, " ‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. at 92, 123 S.Ct. 1140 (quoting Hudson v. United States , 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ).

¶ 16 The CSORA states:

The general assembly finds that persons convicted of offenses involving unlawful sexual behavior have a reduced expectation of privacy because of the public’s interest in public safety. The general assembly further finds that the public must have access to information concerning persons convicted of offenses involving unlawful sexual behavior that is collected pursuant to this article to allow them to adequately protect themselves and their children from these persons. The general assembly declares, however, that, in making this information available to the public ... it is not the general assembly’s intent that the information be used to inflict retribution or additional punishment on any person convicted of unlawful sexual behavior....

§ 16-22-112(1), C.R.S. 2018.

¶ 17 Consistent with the legislature’s stated intent, divisions of this court have uniformly held that sex offender registration is not punishment. See J.O ., ¶¶ 21-30 ; People v. Carbajal , 2012 COA 107, ¶ 37, 312 P.3d 1183 ; People v. Sowell , 327 P.3d 273, 277 (Colo. App. 2011) ; People v. Tuffo , 209 P.3d 1226, 1230 (Colo. App. 2009) ; People v. Montaine , 7 P.3d 1065, 1067 (Colo. App. 1999). Such registration is not part of a defendant’s sentence...