People ex rel. T.B.
Decision Date | 20 June 2019 |
Docket Number | Court of Appeals No. 16CA1289 |
Citation | 490 P.3d 455 |
Court | Colorado Court of Appeals |
Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF T.B., Juvenile-Appellant. |
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 by JUDGE WELLING
¶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.
¶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
¶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, 383 P.3d 69, the court rejected T.B.’s constitutional arguments and denied the petition.
¶6 T.B. appeals that denial.
¶7 Relying on cases decided under Crim P. 35(c), the People assert that T.B.’s constitutional arguments are procedurally barred. We disagree.
¶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) (). 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) ( ). 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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ( ); Graham , 560 U.S. at 73, 130 S.Ct. 2011 ( ); State in Interest of C.K. , 233 N.J. 44, 182 A.3d 917, 932-33 (2018) ( ).
¶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, 412 P.3d 520 (, )rev'd on other grounds , 2017 CO 50, 394 P.3d 1141.
¶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) () .
¶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, 395 P.3d 1165. 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.
¶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.
¶15 Juveniles who have been adjudicated for unlawful sexual behavior must register as sex offenders. § 16-22-103(4), C.R.S. 2018 (). 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 ( ).
¶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 crimes as a juvenile, unless the registration requirement, as applied to him, is unconstitutional. That is where we turn next.
¶18 We review constitutional challenges under the ...
To continue reading
Request your trial