People ex rel. J.M.M.

• Decision Date: 01 July 2021
• Docket Number: Court of Appeals No. 20CA0195
• Citation: 496 P.3d 833,2021 COA 88
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, IN the INTEREST OF J.M.M., Juvenile-Appellee.
• Court: Colorado Court of Appeals

496 P.3d 833

2021 COA 88

The PEOPLE of the State of Colorado, Plaintiff-Appellant, IN the INTEREST OF J.M.M., Juvenile-Appellee.

Court of Appeals No. 20CA0195

Colorado Court of Appeals, Division II.

Announced July 1, 2021

Daniel H. May, District Attorney, Doyle Baker, Senior Deputy District Attorney, Tanya A. Karimi, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant

J.M.M., Pro Se

Opinion by JUDGE LIPINSKY

¶ 1 The meaning of a statute can hinge on the General Assembly's choice of a single word. In this case, the General Assembly used the indefinite article "a," rather than the definite article "the," in establishing the conditions under which a person who committed a sex-related offense as a juvenile may petition a court to discontinue registration as a sex offender. We must interpret statutes using the words the General Assembly employed.

¶ 2 Under the Colorado Sex Offender Registration Act (the Act), §§ 16-22-101 to - 115, C.R.S. 2020, certain persons convicted of unlawful sexual offenses must register on the state's sex offender registry. § 16-22-103, C.R.S. 2020. Section 16-22-103(4) extends the registration requirement to "any person who receives a disposition or is adjudicated a juvenile delinquent based on the commission of any act that may constitute unlawful sexual behavior or who receives a deferred adjudication based on commission of any act that may constitute unlawful sexual behavior ...."

¶ 3 In addition, section 16-22-113, C.R.S. 2020, specifies when persons required to register as a sex offender are eligible to seek to discontinue their registration. While various subsections of that statute apply to persons convicted of a sex offense as a juvenile, section 16-22-113(1)(e) expressly provides that "person[s] [who were] younger than eighteen years of age at the time of commission of the offense" may seek to deregister as a sex offender "after the successful completion of and discharge from a juvenile sentence or disposition ...."

¶ 4 In this appeal, we consider whether a person who served a sentence or disposition that was not his or her original juvenile sentence or disposition is nonetheless eligible to file a petition to deregister as a sex offender under section 16-22-113(1)(e).

¶ 5 We conclude that the reference to "the successful completion of and discharge from a juvenile sentence or disposition" in section 16-22-113(1)(e) (emphasis added) does not mean that the person must have successfully completed his or her original sentence or disposition. We therefore affirm the district court's order.

I. Background

¶ 6 When J.M.M. was eleven years old, he was charged with sexual assault on a child, violent crime-sexual offense, and sexual assault on a child (pattern). On March 21, 2000, J.M.M. pleaded guilty to sexual assault on a child (pattern) and, together with the prosecution, submitted a motion for a two-year deferred sentence subject to specified terms and conditions. The terms and conditions included sex offender treatment and registration as a sex offender. The court granted the motion and ordered J.M.M. to register as a sex offender within forty-eight hours of accepting the deferred sentence.

¶ 7 But J.M.M. did not satisfy the terms and conditions of the deferred sentence. Accordingly, the People filed a motion to revoke J.M.M.’s deferred sentence. The court granted the motion, revoked the deferred sentence, sentenced J.M.M. to twenty-four months of probation, and ordered him to complete sex offender treatment.

¶ 8 No fewer than three times, J.M.M. violated the terms and conditions of his probation and was resentenced to probation. On January 6, 2004, following J.M.M.’s last violation of the terms and conditions of his probation, the court sentenced him to the custody of the Department of Youth Corrections (DYC) for two years and ordered him to successfully complete sex offender treatment (the final sentence).

¶ 9 J.M.M. satisfied the terms and conditions of the final sentence. He was paroled on December 19, 2005.

¶ 10 On April 23, 2019, J.M.M. filed a petition to discontinue sex offender registration pursuant to section 16-22-113(1)(e). The People objected, arguing that he was not eligible to have his sex offender registration discontinued under section 16-22-113(1)(e), and that section 16-22-113(1)(a) applied instead, because J.M.M. had not successfully completed his original sentence or disposition.

¶ 11 The People do not explain when J.M.M. first received a "sentence" or a "disposition." A deferred sentence logically cannot be a "sentence" because it is deferred. A defendant who receives a deferred sentence can avoid a sentence by satisfying the terms and conditions of the deferred sentence. See Pineda-Liberato v. People , 2017 CO 95, ¶ 15, 403 P.3d 160, 163 ("[O]nce a person has successfully completed a deferred sentence, his or her guilty plea is withdrawn, and the case is dismissed, no conviction is deemed to have existed.").

¶ 12 A deferred sentence may not constitute a "disposition" either. The definition of "convicted" or "conviction" in section 16-22-102(3), C.R.S. 2020, separately mentions "having received a disposition as a juvenile" and "having received a deferred judgment and sentence or a deferred adjudication." Thus, a "disposition" is different from a "deferred judgment and sentence or a deferred adjudication." In addition, neither the sex offender registration statute, § 16-22-103, nor the definitional section of the juvenile code, § 19-2-103, C.R.S. 2020, contains a definition of "disposition."

¶ 13 The People's failure to clarify the first time J.M.M. received a "sentence" or "disposition" is of no consequence, however. Regardless of whether J.M.M.’s "two-year deferred judgment and sentence" was or was not a "sentence" or a "disposition," he received a "sentence" or a "disposition" the first time the court placed him on probation. As noted above, more than once, J.M.M. violated the terms and conditions of his probation and was resentenced to probation. There is no dispute that J.M.M. received multiple "sentences" or "dispositions." Thus, we need not decide which specific court order reflected J.M.M.’s initial "sentence" or "disposition."

¶ 14 Section 16-22-113(1) and its paragraph (a) set forth the general eligibility requirements for discontinuance of sex offender registration:

[A]ny person required to register pursuant to section 16-22-103 ... may file a petition with the court that issued the order of judgment for the conviction that requires the person to register for an order to discontinue the requirement for such registration ... as follows:

(a) Except as otherwise provided in paragraphs (d), (e), and (f) of this subsection (1), if the offense that required such person to register constituted or would constitute a class 1, 2, or 3 felony, after a period of twenty years from the date of such person's discharge from the department of corrections, if such person was sentenced to incarceration, or discharge from the department of human services, if such person was committed, or final release from the jurisdiction of the court for such offense, if such person has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior ....

¶ 15 If section 16-22-113(1)(a) applies, J.M.M. would not be eligible to seek to discontinue his registration until he had waited "twenty years from the date of [his] ... discharge from the department of human services ...." Thus, under the People's reading of sections 16-22-113(1)(a) and 16-22-113(1)(e), J.M.M. filed his petition to discontinue his registration prematurely.

¶ 16 At the deregistering hearing, the district court found that J.M.M. "successfully complete[d] [his] DYC commitment, ... ha[sn't] been under the Juvenile Court's jurisdiction for some decades now, ... do[es] not present a community safety risk," and successfully completed the juvenile sex offender treatment program. Accordingly, the court ordered the discontinuance of J.M.M.’s sex offender registration.

¶ 17 On appeal, the People argue that, because J.M.M. failed to complete the terms of his "original, deferred judgment" and had his probation revoked multiple times, the district court erred by applying section 16-22-113(1)(e) and granting J.M.M.’s petition to deregister as a sex offender. We disagree.

II. The Colorado Sex Offender Registration Act

A. Standard of Review

¶ 18 We review issues of statutory interpretation de novo.

McCulley v. People , 2020 CO 40, ¶ 10, 463 P.3d 254, 257. "We must interpret the statute as a whole and in the context of the entire statutory scheme, giving consistent, harmonious, and sensible effect to all its parts." Id. In construing a statute, our goal is to ascertain and give effect to the General Assembly's intent. Id. To determine the intent of the General Assembly, we first look to the statutory language, giving words and phrases their plain and ordinary meanings. Id. If the language of the statute is clear and unambiguous, we give effect to its plain meaning and apply the statute as written. Manjarrez v. People , 2020 CO 53, ¶ 19, 465 P.3d 547, 550-51.

B. Analysis

1. The Statutory Framework

¶ 19 Section 16-22-113(1)(e) provides that a person required to register because he or she committed a sex offense as a juvenile may file a petition to discontinue registration

after the successful completion of and discharge from a juvenile sentence or disposition , and if the person prior to such time has not been subsequently convicted or has a pending prosecution for unlawful sexual behavior or for any other offense, the underlying factual basis of which involved unlawful sexual behavior and the court did not issue an order either continuing the duty to register or discontinuing the duty to register pursuant to paragraph (b) of subsection (1.3) of this section.

(Emphasis added.)

¶ 20 The People argue that, even though J.M.M. completed the final...