People v. Manzanares

• Citation: 85 P.3d 604
• Decision Date: 09 October 2003
• Docket Number: No. 02CA1341.,02CA1341.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark MANZANARES, Defendant-Appellant.
• Court: Court of Appeals of Colorado

85 P.3d 604

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark MANZANARES, Defendant-Appellant.

No. 02CA1341.

Colorado Court of Appeals, Div. I.

October 9, 2003.

Certiorari Denied March 15, 2004.

Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Paul Grant, Englewood, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Mark Manzanares, appeals from the trial court's order revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of attempted sexual assault on a child. We affirm.

Defendant was charged here after a twelve-year-old girl reported waking up at night to find him moving his hand up the inside of her pants towards her vaginal area.

In November 1998, defendant entered a plea of guilty to the charge. Pursuant to a plea agreement, the trial court accepted defendant's guilty plea and granted him a deferred judgment for two years.

In June 1999, the probation department filed a complaint to revoke defendant's deferred judgment, alleging that he made poor progress in sex offender treatment. That complaint was withdrawn, however, in return for defendant's agreement to extend the period of deferred judgment until August 2001.

In August 2001, the probation department filed a second complaint to revoke the deferred sentence. This complaint alleged that defendant had violated terms of the deferred judgment requiring him to: (1) attend, actively participate in, and complete sex offender treatment, and abide by the rules of his sex offender treatment program provider; (2) not purchase, possess, or consume alcoholic beverages; and (3) not have contact with any child under the age of eighteen, including his own children, unless approved in advance by the court.

Defendant unsuccessfully moved to dismiss the complaint or to withdraw or vacate his guilty plea, and the probation department filed a supplemental revocation complaint alleging that defendant had been unsuccessfully discharged from a second sex offender treatment program.

After the matter was continued several times in 2002, the trial court conducted a revocation hearing and then revoked defendant's deferred judgment. The court found that, in violation of the terms and conditions of deferred judgment, defendant had violated his contract with a sex offender treatment program by having at least ten unexcused absences, using alcohol, and having unsupervised contact with children.

Accordingly, the court entered judgment of conviction against defendant for the offense of attempted sexual assault on a child and sentenced him to six years of intensive supervised probation.

I.

Defendant contends that the trial court erred in revoking his deferred judgment based on violations of sex offender treatment conditions because a sex-offender-specific evaluation was not conducted until 2002, just before his revocation hearing. We agree.

The statutory provisions governing sex-offender-specific evaluations are found in §§ 16-11.7-104 and 16-11.7-105, C.R.S.2002.

Section 16-11.7-104(1), C.R.S.2002, provides, in pertinent part:

On or after January 1, 1994, each sex offender who is to be considered for probation shall be required, as a part of the presentence or probation investigation required pursuant to section 16-11-102, to submit to an evaluation for treatment, an evaluation for risk, procedures required for monitoring of behavior to protect victims and potential victims, and an identification developed pursuant to section 16-11.7-103(4)(a).

Section 16-11.7-105(1), C.R.S.2002, provides in pertinent part:

Each sex offender sentenced by the court for an offense committed on or after January 1, 1994, shall be required, as a part of any sentence to probation, community corrections, or incarceration with the department of corrections, to undergo treatment to the extent appropriate to such offender based upon the recommendations of the evaluation and identification made pursuant to section 16-11.7-104, or based upon any subsequent recommendations by the department of corrections, the judicial department, the department of human services, or the division of criminal justice of the department of public safety, whichever is appropriate.

In People v. Lenzini, 986 P.2d 980, 983 (Colo.App.1999), a division of this court construed these provisions as requiring the court to order a sex-offender-specific evaluation to be conducted as part of the presentence report for sex offenders and to consider that evaluation in sentencing.

Following Lenzini, the same division held in People v. Meidinger, 987 P.2d 937, 938-39 (Colo.App.1999) that a court could not impose sex offender conditions as part of a sentence to probation without ordering the sex offender evaluation as required by § 16-11.7-104.

The prosecution correctly points out that, by their terms, §§ 16-11.7-104(1) and 16-11.7-105(1) appear to apply only when a presentence report is required for use in sentencing sex offenders. It argues, then, that the statutes are inapplicable here because an individual granted a deferred judgment is not subject to sentencing until he or she violates the conditions of the deferred judgment. We are not persuaded.

Courts should promote the spirit of a statute and not simply the letter of the law. People in Interest of S.B., 742 P.2d 935, 938 (Colo.App.1987); see Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.)(Hand, J.: "The defendants... say that we are not free to depart from the literal meaning of the words, however transparent may be the resulting stultification of the scheme or plan as a whole.... [T]he decisions are legion in which [courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute."), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945); Lobato v. Indus. Claim Appeals Office, ___ P.3d ___, ___ (Colo. App. No. 02CA1145, June 5, 2003)("One guiding principle is that the interpretation of a statute may not cause an absurd result.").

In People v. Lenzini, supra, 986 P.2d at 983, the division recognized that the overriding goal of article 11.7 of title 16 was "to provide the state with a program of standardized procedures to deal with all sex offenders, as they are defined by § 16-11.7-102." This category specifically includes individuals, like defendant, who receive a deferred judgment for the offense of attempted sexual assault on a child. See § 16-11.7-102(2)(a)(I), (2)(b), (3)(d), (3)(u), C.R.S.2002.

The purpose of sex-offender-specific evaluations is to identify appropriate modes of sex offender treatment to curtail recidivistic behavior and protect the public. See §§ 16-11.7-101, 16-11.7-104(1), 16-11.7-105(1), C.R.S.2002. There is no question that an individual who has pleaded guilty to a sex offense and has been sentenced to probation would be required to undergo a sex-offender-specific evaluation. See People v. Meidinger, supra, 987 P.2d at 939

.

A deferred judgment is akin to a sentence of probation. People v. Slayton, 878 P.2d 106, 107 (Colo.App.1994)(both probation and deferred sentencing are premised on defendants leading law-abiding lives). Like probation, a deferred judgment is a privilege, where the defendant is the primary beneficiary of a procedure that ultimately may result in dismissal of the charges against him or her. People v. McPherson, 897 P.2d 923, 925 (Colo.App.1995). Also, a person with a deferred judgment is supervised by the probation department and must comply with conditions similar to probation conditions. See § 18-1.3-102(1), (2), C.R.S.2002 (formerly codified at § 16-7-403).

We perceive no reason why a sex offender evaluation requirement should not apply to sex offender treatment conditions imposed in connection with a deferred judgment. Thus, in accord with the purposes of the statute, we construe §§ 16-11.7-104 and 16-11.7-105 to require such an evaluation.

Here, as a condition of his deferred judgment, the court required defendant to submit to a sex offender evaluation. However, the court did not order the probation department to conduct such an evaluation and the probation department did not independently seek to have an evaluation conducted until after the extended period of defendant's deferred judgment had expired.

The evaluation revealed that defendant had significant difficulty processing verbal information. The doctor who conducted the evaluation opined in a letter that defendant had been placed in sex offender programs "whose requirements may have been beyond his ability to fully comprehend."

In our view, the failure to timely conduct the required evaluation undermined the purpose of the sex offender conditions, rendering them unenforceable. Consequently, we conclude that the court erred in basing its revocation decision on a violation of sex offender treatment conditions.

II.

Defendant also contends that his deferred judgment could not be revoked because of his use of alcohol. We agree.

In People v. Cagle, 780 P.2d 13, 14 (Colo. App.1989), a division of this court recognized that "a decision not to pursue revocation for a violation does not preclude subsequent revocation for a later violation" (emphasis added). This statement implies that a decision not to pursue revocation at a given time may bar subsequent revocation for an earlier violation. We agree, at least where, as here (1) the earlier decision not to pursue revocation is evidenced by a dismissal of a revocation complaint after the probation department knew of the purported violation and (2) the defendant has agreed to extend the period of deferred judgment in reliance on the dismissal of the complaint.

Here, because the only evidence of defendant's alcohol use was known to the probation department when the first complaint was dismissed pursuant to the agreement with defendant, we conclude such evidence could not form a proper basis for later revoking...