People v. Durapau

• Citation: 280 P.3d 42
• Decision Date: 12 April 2012
• Docket Number: No. 06CA2677.,06CA2677.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Damon Devereaux DURAPAU, Defendant–Appellant.
• Court: Colorado Court of Appeals

280 P.3d 42

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Damon Devereaux DURAPAU, Defendant–Appellant.

No. 06CA2677.

Colorado Court of Appeals,

Div. VI.

April 28, 2011.

As Modified April 12, 2012.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Stanley M. Morris, Cortez, Colorado, for Defendant–Appellant.

Opinion by Judge HAWTHORNE.

Defendant, Damon Devereaux Durapau, appeals the district court's order requiring him to register as a sex offender under section 16–8–115(4)(a), C.R.S.2010. We affirm the court's order and dismiss the appeal in part without prejudice because we lack jurisdiction to consider defendant's contention that he should be permitted to withdraw his plea.

In this case of first impression, we conclude that applying section 16–8–115(4)(a)'s sex offender registration requirement to defendant, who pled and was found not guilty by reason of insanity (NGRI) to an offense involving unlawful sexual behavior prior to the section's amendment requiring registration, does not violate his constitutional rights.

I. Factual Background

According to a 1997 probable cause affidavit, defendant carried the intoxicated victim over his shoulder from her neighboring apartment to his and had nonconsensual sexual intercourse with her. Approximately two months later, defendant was arrested following an incident involving the same victim. Although he maintained the sex was consensual, defendant was charged with first degree sexual assault and other offenses not relevant to this appeal.

An examination at the Colorado Mental Health Institute at Pueblo (CMHIP) indicated that defendant was incompetent to proceed to trial. Following a commitment period, his competency was found to be restored, and the case was set for trial in 1999.

On February 16, 1999, pursuant to a plea agreement, the district court found defendant NGRI of first degree sexual assault and other offenses not relevant here. The court stated, “Not guilty by reason of insanity is found as a matter of fact and law based on the reports in the file,” and defendant was committed to CMHIP.

On January 5, 2005, the court granted defendant community placement pursuant to CMHIP's recommendation.

That same year, the General Assembly amended both the temporary removal and release from commitment statutes by replacing the word “may” with “shall,” thereby requiring NGRI defendants who committed offenses involving unlawful sexual behavior to register as sex offenders. §§ 16–8–115(4)(a), 16–8–118(2)(a), C.R.S.2010; see Ch. 251, secs. 1 & 2, 2005 Colo. Sess. Laws 995–96 (effective June 2, 2005).

On April 12, 2006, CMHIP staff opined that defendant was eligible for conditional release because he no longer suffered from an abnormal mental condition and was not a danger to himself or the community.

On November 13, 2006, the court granted defendant conditional release from CMHIP under section 16–8–115, C.R.S.2010. Although defendant's treating psychiatrist recommended against it, the court ordered sex offender registration as a condition of release.

Defendant now appeals that order, arguing (1) the court lacked jurisdiction to impose registration because no such requirement existed when he entered his plea; (2) it violated his constitutional rights; and (3) he should be permitted to withdraw his plea. We address these contentions in turn.

II. Statutory Application

Defendant contends that the court erred in imposing sex offender registration because no such statutory requirement existed when he entered his NGRI plea. We discern no error.

Because this question involves statutory interpretation, we review the district court's decision de novo. People v. Scheffer, 224 P.3d 279, 287 (Colo.App.2009).

In interpreting a statute, our primary responsibility is to effectuate the General Assembly's intent. Whitaker v. People, 48 P.3d 555, 558 (Colo.2002). We look first to the statute's plain language. Id. If it clearly expresses the legislative intent, then we must give effect to the statutory language's ordinary meaning. Id. We apply facially clear and unambiguous statutes as written because we presume the General Assembly meant what it clearly said. In re Marriage of Chalat, 112 P.3d 47, 54 (Colo.2005). We also avoid constructions that defeat the General Assembly's obvious intent. People v. Schupper, 140 P.3d 293, 296 (Colo.App.2006).

Section 16–8–115(4)(a) addresses the registration requirement for an NGRI defendant who is released from commitment:

In addition to any terms and conditions of release imposed pursuant to subsection (3) of this section, a court shall order a defendant, as a condition of release, to register with the local law enforcement agency of the jurisdiction in which the defendant resides if the court finds that:

(I) The defendant was found not guilty by reason of insanity on a charge of an offense involving unlawful sexual behavior; or

(II) The defendant was found not guilty by reason of insanity on a charge of any other offense, the underlying factual basis of which includes an offense involving unlawful sexual behavior.

(Emphasis added.)

In 2005, the General Assembly amended section 16–8–115(4)(a) by replacing the word “may” with “shall.” Ch. 251, sec. 1, 2005 Colo. Sess. Laws 995. “Unless the context indicates otherwise, the word ‘shall’ generally indicates that the General Assembly intended the provision to be mandatory.” DiMarco v. Dep't of Revenue, 857 P.2d 1349, 1352 (Colo.App.1993) (citing People v. District Court, 713 P.2d 918 (Colo.1986)); see also Riley v. People, 104 P.3d 218, 221 (Colo.2004) (“There is a presumption that the word ‘shall’ when used in a statute is mandatory.”). By including the mandatory word “shall,” the General Assembly clearly evinced its intent that all NGRI offenders who have pled to an offense involving unlawful sexual behavior be required to register as a condition of release. § 16–8–115(4)(a).

Here, in 1999, defendant pled NGRI to first degree sexual assault in violation of a prior version of section 18–3–402(1)(a), a class three felony, involving unlawful sexual behavior. See§ 16–8–115(4)(g)(I)(B), C.R.S.2010 (an offense involving unlawful sexual behavior includes sexual assault in violation of section 18–3–402, as it existed prior to July 1, 2000). Because defendant pled NGRI to an offense involving unlawful sexual behavior, and he was granted conditional release from CMHIP after amended section 16–8–115(4)(a)'s effective date, the court was statutorily required to impose registration as a condition of release.

Although defendant acknowledges that section 16–8–115(4)(a) uses the word “shall,” he maintains that he should not be required to register as a sex offender because his treatment clinicians recommended against registration.

Defendant's psychiatrist advised against sex offender registration because, in her opinion, he posed a low risk for sexual violence. She testified, “To do all of the extra monitoring that's required doesn't make sense in that I don't think it's providing any benefit to the public whatsoever. Plus it ... increases public risk some because of the stress it puts on th[e] particular person.”

Defendant argues that mandatory registration requirements for defendants who are considered a low recidivism risk is “absurd” and that greater deference should be afforded to health professionals. However, the legislature has clearly expressed its intent that registration be mandatory for defendants who pled NGRI to an offense involving unlawful sexual behavior. § 16–8–115(4)(a). Thus, neither courts nor treatment professionals have discretion in determining whether such defendants must register as sex offenders as a condition of release.¹ We may not second-guess the wisdom or desirability of the General Assembly's policy choice. See Colorado Office of Consumer Counsel v. Public Utilities Comm'n, 42 P.3d 23, 28–29 (Colo.2002) (“courts do not approve or disapprove the wisdom ... or the desirability of legislative acts” (quoting Kallenberger v. Buchanan, 649 P.2d 314, 318 (Colo.1982))); see also Dep't of Transp. v. City of Idaho Springs, 192 P.3d 490, 494 (Colo.App.2008) (courts may not rewrite statutes). Accordingly, we will not disturb the court's order.

III. Jurisdiction

Despite the statute's plain meaning and the legislative history supporting mandatory registration, defendant maintains that he should not be required to register because he was never convicted of a crime, and the court therefore lacked jurisdiction to impose any requirement other than commitment. We disagree.

To support his argument, defendant cites section 16–22–112(1), C.R.S.2010, which provides in relevant part, “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.” (Emphasis added.) He further notes that section 16–22–103, C.R.S.2010, requires “convicted” sex offenders to register, and section 16–22–102(3), C.R.S.2010, defines “convicted” and “conviction” as “having received a verdict of guilty by a judge or jury, having pleaded guilty or nolo contendere, having received a disposition as a juvenile, having been adjudicated a juvenile delinquent, or having received a deferred judgment and sentence or a deferred adjudication.” Thus, defendant argues that his NGRI plea did not meet the statutory definition of a “conviction.”

Defendant's reliance on these statutory provisions is misplaced. The district court's order was not based on his having been “convicted” of a sexual offense. Rather, the registration requirement was triggered by defendant's conditional release from CMHIP following the district court's acceptance of his NGRI plea to first degree sexual assault. See§ 16–8–115(4)(a).

Because the court's 2006 order occurred after the 2005 effective date of 16–8–115(4)(a)'s amendment requiring the court to order...