People v. Firth

• Decision Date: 04 September 2008
• Docket Number: No. 06CA2346.,06CA2346.
• Citation: 205 P.3d 445
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott FIRTH, Defendant-Appellant.
• Court: Colorado Court of Appeals

205 P.3d 445 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Scott FIRTH, Defendant-Appellant. No. 06CA2346. Colorado Court of Appeals, Div. VI. September 4, 2008.

[205 P.3d 447]

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GABRIEL.

Defendant, Scott Firth, appeals the district court's order denying his Crim. P. 35(c) motion for postconviction relief following the revocation of his probation and his sentence to an indeterminate term of six years to life in the Department of Corrections. We affirm.

I. Facts

Defendant was charged with three counts of aggravated incest for having sexually molested his daughter from the time she was nine years old until she was seventeen. Pursuant to a plea agreement, defendant pled guilty to sexual assault on a child fifteen to seventeen years of age by one in a position of trust, a class 4 felony, and was sentenced to sixty days in the Archuleta County Jail, followed by probation for a term of ten years to life. The terms of probation required, among other things, that defendant enroll in a sex offender treatment program offered by CareNet in Denver. The terms also required defendant to participate in a treatment program as required by the Colorado Sex Offender Management Board's (SOMB's) Standards and Guidelines for the Assessment,

205 P.3d 448

Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders (Standards and Guidelines) under the supervision of his probation officer. In particular, condition number 16 of defendant's probation stated:

You shall attend and actively participate in a sex offender evaluation and treatment program approved by the probation officer. You will abide by the rules of the treatment program, and the treatment contract and will successfully complete the program to the satisfaction of the probation officer and the treatment provider.

The trial court noted that the leniency of the sentence was, in part, a response to the court's perception that defendant was making a sincere effort to succeed in sex offender treatment, having begun treatment at CareNet before sentencing. The court went on to note that "100 percent compliance" with the conditions of probation was expected from defendant.

Upon his release from jail, defendant returned to Denver and continued his treatment in the CareNet program. While at CareNet, he participated and progressed to the general satisfaction of his supervising doctor. Defendant's treatment providers, however, repeatedly raised concerns regarding defendant's lack of empathy for his victim and his marginal recognition of his own responsibility. Defendant's probation officer also became concerned for public safety when defendant disclosed fantasies about handcuffing a young girl whom he had seen in his apartment building and self-reported an incident where he got into his car to follow an attractive jogger.

In light of the foregoing, defendant's probation officer determined that the risk of defendant's reoffending was escalating. Accordingly, pursuant to the Standards and Guidelines and in accordance with condition 16 of defendant's probation, she arranged to transfer him to Sexual Offense Resource Services (SORS), also in Denver, where he would be subject to a higher level of containment and monitoring than he had been at CareNet. Defendant was unhappy with this decision and moved to have his probation transferred to Archuleta County. In the interim, defendant signed a treatment contract with SORS on December 23, 2003.

Although defendant attended group therapy sessions at SORS, the record reflects that he rejected feedback from his treatment group, concluding that the group members' perspective was "distorted." Defendant's treatment provider at SORS characterized this attitude as typical of defendant's lack of accountability and responsiveness to the concerns and feedback of others, including his victim, treatment providers, and treatment team. The provider further noted that defendant's animosity toward his peers remained an ongoing concern and that defendant's arrogance and resistance to feedback prevented him from progressing in treatment. The record indicates that defendant's problems at SORS stemmed from his displeasure regarding his removal from CareNet and his desire to transfer his probation to Archuleta County.

On February 24, 2004, defendant was terminated from the SORS program "due to his unwillingness to engage in [the] treatment program in a meaningful way." In connection with this termination, defendant's treatment provider also noted that a skinning knife was found in defendant's car, allegedly a violation of another probation condition.

That same day, defendant's probation officer filed a Petition to Revoke Probation, based on defendant's failure to complete treatment and his possession of the knife. Following a hearing, the court found that defendant had violated the conditions of his probation. The court therefore revoked probation and sentenced defendant to an indeterminate prison term of six years to life, pursuant to the Colorado Sex Offender Lifetime Supervision Act (the Act), §§ 18-1.3-1001 to -1012, C.R.S.2007.

Defendant subsequently filed a petition for postconviction relief pursuant to Crim. P. 35(c). After an evidentiary hearing, the trial court agreed with defendant that the evidence as to the knife was insufficient to support revocation of probation. The court, however, rejected defendant's remaining arguments

205 P.3d 449

and denied defendant's Crim. P. 35(c) petition. Defendant now appeals.

II. Standard of Review

The denial of a Crim. P. 35(c) motion is reviewed for abuse of discretion. See People v. Abad, 962 P.2d 290, 292 (Colo.App. 1997). In postconviction proceedings, the legality of the judgment and the regularity of proceedings below are presumed, and the burden is on the defendant to establish his allegations by a preponderance of the evidence. Lamb v. People, 174 Colo. 441, 446, 484 P.2d 798, 800 (1971).

III. Vagueness of Condition 16

Defendant first argues that condition 16, quoted above, is unconstitutionally vague on its face and as applied. We disagree.

Many Colorado cases have addressed void for vagueness challenges to statutes. See, e.g., People v. Perea, 74 P.3d 326, 332 (Colo.App.2002). We have found no Colorado case, however, and the parties have cited none, applying the void for vagueness doctrine to conditions of probation, although cases from other jurisdictions have done so. See, e.g., People v. Reinertson, 178 Cal. App.3d 320, 324, 223 Cal.Rptr. 670, 672 (1986); Hunter v. State, 883 N.E.2d 1161, 1163-64 (Ind.2008); State v. Allen, 370 S.C. 88, 634 S.E.2d 653, 657 (2006). Based upon the reasoning of these cases, we now conclude that the void for vagueness doctrine applies to conditions of probation and proceed to the merits of defendant's argument.

Vague laws are void where they "fail to give fair notice of the conduct prohibited and do not supply adequate standards to prevent arbitrary and discriminatory enforcement." Perea, 74 P.3d at 332; cf. Griffin v. Wisconsin, 483 U.S. 868, 875 n. 3, 107 S.Ct. 3164, 3169 n. 3, 97 L.Ed.2d 709 (1987) (if a regulation concerning probation establishes a standard of conduct to which a probationer must conform on pain of penalty, a court cannot adopt so unnatural an interpretation of the language that the regulation would fail to provide adequate notice as to what is required). The essential inquiry is whether the condition describes the proscribed conduct in terms so vague that persons of common intelligence cannot readily understand its meaning and application. Perea, 74 P.3d at 332. Due to the nature of language, mathematical certainty is not required. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Perea, 74 P.3d at 332. A law...