People v. Kibel, Nos. 83SA491

Docket Nº83SA492
Citation701 P.2d 37
Case DateJune 10, 1985
CourtSupreme Court of Colorado

Page 37

701 P.2d 37
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Steven Albert KIBEL, Defendant-Appellant.
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Floyd David SLUSHER, Defendant-Appellant.
Nos. 83SA491, 83SA492.
Supreme Court of Colorado,
En Banc.
June 10, 1985.
Rehearing Denied July 1, 1985.

Page 39

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Eric Perryman, Asst. Atty. Gen., Appellate Section, Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Seth J. Benezra, Deputy State Public Defender, Denver, for defendants-appellants.

DUBOFSKY, Justice.

The defendants, Steven Kibel and Floyd David Slusher, appeal the district courts' rulings that the release procedure of the Colorado Sex Offenders Act of 1968 (CSOA), §§ 16-13-201 to -216, 8 C.R.S. (1978 & 1984 Supp.), did not violate their constitutional right to equal protection of the laws, 1 and the courts' rejection of their claims that they had been denied constitutional and statutory rights to treatment under the CSOA. 2 Additionally, the defendant in People v. Kibel, No. 83SA491, challenges the district court's ruling that the release procedure of the CSOA did not violate his right to due process of law. 3 We consolidated these cases on appeal, 4 and affirm the rulings of the district courts.

I.

To understand the factual background of these cases and the defendants' claims, a brief review of CSOA is helpful. The CSOA grants authority to the district court to commit any person convicted of a sex offense 5 to the custody of the Department of Corrections (department) for an indeterminate term of one day to life. § 16-13-203, 8 C.R.S. (1978). Upon the motion of the district attorney, the defendant, or the court, within twenty days of conviction, the court must commence CSOA proceedings. § 16-13-205, 8 C.R.S. (1978). The court advises the defendant orally and in writing of certain procedural rights, § 16-13-206, 8 C.R.S. (1978), and commits him for examination by two psychiatrists. § 16-13-207(1), 8 C.R.S. (1978). The examining psychiatrists submit written reports to the court, setting forth their opinions as to 1) whether the defendant, if at large, poses a threat of bodily harm to members of the public; 2) whether the defendant is "mentally deficient"; 3) whether the defendant

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could benefit from psychiatric treatment; and 4) whether the defendant could be adequately supervised on probation. § 16-13-207(2), 8 C.R.S. (1978). The probation department also submits to the court a report on the defendant. § 16-13-208, 8 C.R.S. (1978). After receiving these reports, the court may terminate CSOA proceedings and sentence the defendant for his substantive offense. § 16-13-209, 8 C.R.S. (1978).

If the court proceeds under the CSOA, a hearing is held, at which the court receives evidence concerning the public danger posed by the defendant. § 16-13-210, 8 C.R.S. (1978). The defendant has the right to subpoena and examine witnesses, to receive a list of prosecution witnesses ten days before the hearing, and to cross-examine these witnesses as well as the psychiatrists and probation officers who have submitted reports. Id. The court then may commit the defendant under the CSOA if it finds beyond a reasonable doubt that the defendant poses a threat of bodily harm to members of the public. § 16-13-211, 8 C.R.S. (1978). Six months following this commitment, and every twelve months thereafter, the state parole board (board) must "review all reports, records, and information" concerning the defendant. § 16-13-216(1)(a), 8 C.R.S. (1978). The board may parole the defendant, § 16-13-216(4), 8 C.R.S. (1978), or transfer the defendant to "any facility under the jurisdiction of the department, if the board deems it to be in the best interests of said person and the public." § 16-13-216(2), 8 C.R.S. (1984 Supp.). The board must make a written ruling after each review. § 16-13-216(1)(b), 8 C.R.S. (1978).

II.

A.

In July 1976, the defendant in No. 83SA491, Steven Kibel, pled guilty before the Lake County District Court to charges of first degree sexual assault, § 18-3-402, 8 C.R.S. (1978 & 1984 Supp.), and second degree kidnapping. § 18-3-302, 8 C.R.S. (1984 Supp.). He received an indeterminate sentence under the CSOA for the sexual assault charge, and was also sentenced to a prison term of one day to four years for the kidnapping charge. 6 In October 1976, the parole board transferred the defendant from the Colorado State Penitentiary (penitentiary) to the Colorado State Hospital (hospital).

In November 1981, the defendant moved to vacate his sentence under Crim.P. 35(a), alleging that the sentence had not been accompanied by the findings required by the CSOA. The district court granted the motion, and the prosecution filed a renewed motion for commencement of CSOA proceedings. After receiving the required oral and written advisement, the defendant was examined by Dr. Stephen Bishop and Dr. Stephen Popkin. Both psychiatrists concluded that the defendant remained dangerous to the public, was not mentally deficient, could benefit from further psychiatric treatment, and could not be adequately supervised on probation. Dr. Bishop's finding of dangerousness was based upon the defendant's violation of hospital work-pass rules. Dr. Popkin grounded his finding of dangerousness in the defendant's reports of violent fantasies, which led the doctor to conclude that the defendant might respond with violence to blows against his self-esteem.

Following a hearing on August 19, 1982, at which the two psychiatrists and the defendant testified, the district court concluded beyond a reasonable doubt that the defendant continued to pose a threat of danger to the public, and ordered the defendant recommitted under the CSOA. The court also rejected the defendant's claims that the release procedures of the CSOA violated the defendant's rights to due process and to equal protection of the laws, and that "the failure of the act to affirmatively

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provide adequate individual treatment violates due process of law...."

On September 14, 1982, the parole board transferred the defendant to the penitentiary from the hospital. He was paroled on October 7, 1983.

B.

In February 1977, Floyd David Slusher, the defendant in No. 83SA492, was charged with nine counts of sexual assault on a child. § 18-3-405, 8 C.R.S. (1978 & 1984 Supp.). On May 12, 1977, the defendant pled guilty before the Boulder County District Court to one of the counts, and the remaining counts were dismissed. On September 12, 1977 the prosecutor moved for commencement of CSOA proceedings, and the defendant received the required advisement of rights. The defendant was examined by Dr. William Wittlin and Dr. Dean Plazak. Dr. Wittlin concluded that the defendant posed a danger to the public because the defendant admitted that he would have difficulty refraining from sex with young boys. Dr. Plazak found that the defendant did not constitute a threat of bodily harm to members of the public, but nonetheless concluded that the defendant was a "suitable candidate for proceeding under the sexual offender act." Both psychiatrists determined that the defendant was not mentally deficient, could benefit from psychiatric treatment, and could not be adequately supervised on probation.

After conducting a CSOA hearing, the district court concluded beyond a reasonable doubt that the defendant posed a threat of danger to the public, and accordingly sentenced the defendant to an indeterminate term in the custody of the department. In December 1977, the defendant was transferred to the hospital from the penitentiary.

In August 1982, the defendant moved to vacate his sentence under Crim.P. 35(a) and (c), contending that the CSOA violated his constitutional right to equal protection of the laws, and that the conditions under which he was held at the hospital violated his statutory and constitutional right to treatment. The district court ruled against the defendant on his equal protection claim, but made no ruling concerning the defendant's claim of a right to treatment. The defendant has since been paroled. 7

III.

The defendants contend that the CSOA violates their right to equal protection of the laws because it does not afford periodic judicial review of whether the justification for their confinement continues. Such a right is afforded to involuntary civil committees, § 27-10-109(5), 11 C.R.S. (1982), criminal defendants found not guilty by reason of insanity, § 16-8-115(1), 8 C.R.S. (1984 Supp.), and criminal defendants found incompetent to proceed. §§ 16-8-113 and -114.5(2), 8 C.R.S. (1978 & 1984 Supp.). In contrast, defendants confined under the provisions of the CSOA receive no judicial review following the initial determination of dangerousness; rather, the parole board annually reviews the defendant's continued confinement. § 16-13-216(1)(a). The denial of equal protection inherent in these inconsistent statutory schemes, the defendants assert, is particularly acute where defendants are confined under the CSOA beyond the statutory maximum prison term they might have received for their underlying crimes.

Because the classification of sex offenders under the CSOA neither creates a suspect class nor infringes upon a fundamental right, the statutory scheme will survive an equal protection...

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26 practice notes
  • Wimberly v. Williams, 20-1128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 29, 2021
    ...would create "a threat of bodily harm to members of the public," Colo. Rev. Stat. § 16–13–211(2) (1986) ; see also People v. Kibel , 701 P.2d 37, 40 (Colo. 1985) (explaining the procedures required to commit a defendant under the Sex Offenders Act).Mr. Wimberly continues to serve the indete......
  • Wimberly v. Williams, 20-1128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 29, 2021
    ...release would create "a threat of bodily harm to members of the public," Colo. Rev. Stat. § 16-13-211(2) (1986); see also People v. Kibel, 701 P.2d 37, 40 (Colo. 1985) (explaining procedures required to commit a defendant under the Sex Offenders Act). Mr. Wimberly continues to serve the ind......
  • Watso v. Colorado Dept. of Social Services, No. 91SA456
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...sufficiently protect those interests. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); People v. Kibel, 701 P.2d 37, 43 Because the basic requirement of due process is fundamental fairness, the adequacy of particular procedural protections necessarily must......
  • People ex rel. J.C.S., No. 06CA1868.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 12, 2007
    ...in Interest of N.A.T., 134 P.3d 535, 539 (Colo.App.2006); see also Flakes v. People, 153 P.3d 427, 437 (Colo.2007); People v. Kibel, 701 P.2d 37, 44 The jurisdictional nature of standing requires a sua sponte inquiry where standing was not raised by the parties. Romer v. Bd. of County Comm'......
  • Request a trial to view additional results
26 cases
  • Wimberly v. Williams, 20-1128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 29, 2021
    ...would create "a threat of bodily harm to members of the public," Colo. Rev. Stat. § 16–13–211(2) (1986) ; see also People v. Kibel , 701 P.2d 37, 40 (Colo. 1985) (explaining the procedures required to commit a defendant under the Sex Offenders Act).Mr. Wimberly continues to serve the indete......
  • Wimberly v. Williams, 20-1128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 29, 2021
    ...release would create "a threat of bodily harm to members of the public," Colo. Rev. Stat. § 16-13-211(2) (1986); see also People v. Kibel, 701 P.2d 37, 40 (Colo. 1985) (explaining procedures required to commit a defendant under the Sex Offenders Act). Mr. Wimberly continues to serve the ind......
  • Watso v. Colorado Dept. of Social Services, No. 91SA456
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...sufficiently protect those interests. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); People v. Kibel, 701 P.2d 37, 43 Because the basic requirement of due process is fundamental fairness, the adequacy of particular procedural protections necessarily must......
  • People ex rel. J.C.S., No. 06CA1868.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 12, 2007
    ...in Interest of N.A.T., 134 P.3d 535, 539 (Colo.App.2006); see also Flakes v. People, 153 P.3d 427, 437 (Colo.2007); People v. Kibel, 701 P.2d 37, 44 The jurisdictional nature of standing requires a sua sponte inquiry where standing was not raised by the parties. Romer v. Bd. of County Comm'......
  • Request a trial to view additional results

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