People ex rel. T.B., 062019 COCA, 16CA1289

Docket Nº16CA1289
Opinion JudgeWELLING JUDGE.
Party NameThe People of the State of Colorado, Petitioner-Appellee, In the Interest of T.B., Juvenile-Appellant.
AttorneyPhilip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee Johnson & Klein, PLLC, Gail K. Johnson, Katherine C. Steefel, Boulder, Colorado, for Juvenile-Appellant Elizabeth Logemann, Denver, Colorado, for Amicus Curiae Colo...
Judge PanelHARRIS JUDGE concurs. WEBB, JUDGE dissenting.
Case DateJune 20, 2019

2019 COA 89

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

In the Interest of T.B., Juvenile-Appellant.

No. 16CA1289

Court of Appeals of Colorado, Third Division

June 20, 2019

Court of Appeals City and County of Denver Juvenile Court No. 01JD1407 Honorable D. Brett Woods, Judge Honorable Karen M. Ashby, Judge.

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Johnson & Klein, PLLC, Gail K. Johnson, Katherine C. Steefel, Boulder, Colorado, for Juvenile-Appellant

Elizabeth Logemann, Denver, Colorado, for Amicus Curiae Colorado Juvenile Defender Center and Children's Rights

OPINION

WELLING JUDGE.

¶ 1 The Colorado Sex Offender Registration Act (CSORA), sections 16-22-101 to -115, C.R.S. 2018, requires that juveniles who are twice adjudicated for unlawful sexual behavior must register as sex offenders for life. T.B. is one of those juveniles. He now appeals the denial of his petition to deregister, arguing that the statute's requirement that he register as a sex offender for life for offenses that he committed as a juvenile constitutes cruel and unusual punishment. This court has repeatedly rejected similar claims, each time on the basis that sex offender registration is not a punishment. We, however, conclude that the lifetime registration requirement arising from juvenile adjudications constitutes a punishment and, therefore, remand the case for further proceedings to determine whether the punishment is unconstitutional.

I. Background

¶ 2 In 2001, when T.B. was twelve years old, he was adjudicated for unlawful sexual contact, a class 1 misdemeanor if committed by an adult. In 2005, he pleaded guilty to sexual assault. Following the 2005 adjudication, he successfully completed probation and offense specific treatment. He has no other criminal record.

¶ 3 In 2010, T.B. filed a pro se petition to discontinue sex offender registration in both cases. By checking a box on the petition, he represented that "I have successfully completed the terms and conditions of my sentence related to that offense. I have not been subsequently convicted or adjudicated a juvenile delinquent for any offense involving unlawful sexual behavior."

¶ 4 Following an evidentiary hearing, the juvenile court found that T.B. "has earned the right not to have to register" and "he is not a risk to sexually reoffend." Then the court granted the petition as to the 2005 case but concluded that discontinuing registration was not permitted in the earlier case because T.B. had a subsequent sex offense adjudication (i.e., the 2005 case).

¶ 5 Almost five years later, now twenty-six years old and represented by counsel, T.B. filed a second petition to discontinue registration. This time he argued that lifetime registration violated due process and constituted cruel and unusual punishment. Again, the juvenile court held a hearing. In a written order relying primarily on People in Interest of J.O., 2015 COA 119, the court rejected T.B.'s constitutional arguments and denied the petition.

¶ 6 T.B. appeals that denial.

II. Procedural Bar

¶ 7 Relying on cases decided under Crim P. 35(c), the People assert that T.B.'s constitutional arguments are procedurally barred. We disagree.

A. Successiveness

¶ 8 Claims that could have been raised in a prior appeal are usually barred as successive. See Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d 493, 495 (Colo.App. 2010) ("Defendant could have challenged the district court's factual findings and its conclusion that counsel was not ineffective on direct appeal, but chose not to do so."). But we reject the Attorney General's successiveness argument for two reasons.

¶ 9 First, the Attorney General's successiveness argument assumes that cases decided under Crim. P. 35(c) should control this case. Unsurprisingly, such cases apply the mandate of Crim. P. 35(c)(3)(VI)-(VII) ("The court shall deny any claim that was raised and resolved in a prior appeal" or "could have been presented in an appeal previously brought."). But T.B. never sought relief under Crim. P. 35(c). Nor, for that matter, do we see how he could have taken this approach in pursuit of discontinuing registration.

¶ 10 Second, while it is accurate that the juvenile court twice denied T.B.'s petition to discontinue the registration requirement and T.B. did not appeal from the first denial, the Attorney General's assertion that "[n]othing legal or factual has changed since the first ruling" is only partly true. The factual basis for seeking to discontinue registration was the same in both petitions - T.B. no longer posed a risk to sexually reoffend. But, as detailed in Part III.B.1.a below, the legal landscape involving juvenile sentencing in general and lifetime registration in particular has evolved substantially since T.B.'s first petition in 2010. See, e.g.,

Miller v. Alabama, 567 U.S. 460, 479 (2012) (extending Graham v. Florida, 560 U.S. 48 (2010), and holding "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" convicted of homicide); Graham, 560 U.S. at 73 (observing that just because a juvenile defendant "posed an immediate risk" at one point in his young life does not mean that he will "be a risk to society for the rest of his life"); State in Interest of C.K., 182 A.3d 917, 932-33 (N.J. 2018) (collecting cases issued since 2012 where state courts of last resort have held that lifetime registration and notification requirements for juvenile sex offenders are unconstitutional).

¶ 11 Accordingly, we conclude that there is no successiveness to T.B.'s petition and this appeal. Cf. People v. Rainer, 2013 COA 51, ¶ 34 (concluding that a juvenile's postconviction claim was not successive where it was based on Graham, which "established a new rule of substantive law which should be applied retroactively"), rev'd on other grounds, 2017 CO 50.

B. Abuse of Process and the Law of the Case Doctrine

¶ 12 The Attorney General characterizes T.B.'s appeal "as an abuse of process" because he "did not challenge or appeal the first order denying his motion." Of course, abuse of process may be asserted to prevent perpetual review. Dunlap, 173 P.3d at 1062. But below, the prosecution did not raise abuse of process. Thus, it is not available here. See People v. Sherman, 172 P.3d 911, 915 (Colo.App. 2006) ("In this case, the People did not plead or prove an abuse of process in the trial court. Hence, this affirmative defense is not available.").

¶ 13 The law of the case doctrine doesn't bar our review either. "Whether the law of the case . . . applies to bar the litigation of an issue is a question that we review de novo." Jones v. Samora, 2016 COA 191, ¶ 46. That doctrine applies "to the decisions of an equal court or a different division of the same court." Vashone-Caruso v. Suthers, 29 P.3d 339, 342 (Colo.App. 2001). Thus, the juvenile court could've denied T.B.'s second petition on this basis alone. But because no other division of this court has addressed T.B.'s first petition, we are not so limited. Having disposed of the Attorney General's procedural arguments, we now turn to the merits.

III. Analysis

¶ 14 T.B. contends that when applied to juveniles, automatic lifetime registration under CSORA for repeat offenders violates the Eighth Amendment's prohibition against cruel and unusual punishment. But before discussing the constitutional implications of T.B.'s argument, it is helpful to briefly discuss the relevant portions of CSORA.

A. Treatment of Juveniles Under CSORA

¶ 15 Juveniles who have been adjudicated for unlawful sexual behavior must register as sex offenders. § 16-22-103(4), C.R.S. 2018 ("The provisions of this article 22 apply 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 . . . ."). Juvenile sex offenders must adhere to the same registration requirements as adult sex offenders except that a juvenile's sex offender status is not posted on the Colorado Bureau of Investigation's website. § 16-22-111(1)(c), C.R.S. 2018 (providing that the Colorado Bureau of Investigation (CBI) website shall include information about sex offenders who "[have] been convicted as an adult" of specific offenses involving unlawful sexual behavior).

¶ 16 The registration requirement lasts for the rest of an individual's life or until the court enters an order discontinuing the registration requirement. See § 16-22-103. Before the court can enter such an order, an affected individual must file a petition to discontinue the registration requirement. See § 16-22-113, C.R.S. 2018. In determining whether to grant a petition to discontinue registration, the juvenile court is guided by a single criterion: whether the person is "likely to commit a subsequent offense of or involving unlawful sexual behavior." § 16-22-113(1)(e).

¶ 17 Under CSORA, however, certain individuals are not even permitted to file a petition to discontinue the registration requirement. § 16-22-113(3). Included among those who are not permitted to file a petition are adults who have "more than one conviction or adjudication for unlawful sexual behavior." § 16-22-113(3)(c). This is problematic for T.B. because he is an adult whose record includes two juvenile adjudications for unlawful sexual behavior. So, T.B. is not entitled to petition to discontinue his registration requirement, even though he committed his...

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