People v. Stead, 00CA2212.

• Decision Date: 15 August 2002
• Docket Number: No. 00CA2212.,00CA2212.
• Citation: 66 P.3d 117
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy R. STEAD, Defendant-Appellant.
• Court: Colorado Court of Appeals

66 P.3d 117

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy R. STEAD, Defendant-Appellant.

No. 00CA2212.

Colorado Court of Appeals, Div. III.

August 15, 2002.

Certiorari Denied March 24, 2003.¹

Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Danielle Moore, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge STERNBERG.²

Defendant, Timothy R. Stead, appeals from the trial court's order classifying him as a sexually violent predator as defined by § 18-3-414.5, C.R.S.2001, and thus subjecting him to lifetime registration as a sex offender and other requirements of § 18-3-412.5, C.R.S.2001. We affirm.

Defendant was charged with twenty-nine criminal counts arising from a series of incidents between March 1999 and February 2000. Defendant befriended teenagers and opened his home to them. He provided them with drugs and alcohol and encouraged or engaged them in sexual activity, often photographing them. These photographs and numerous other items of pornography were recovered from defendant's apartment.

Defendant pleaded guilty to one count each of sexual exploitation of a child, contributing to the delinquency of a minor, sexual assault on a child, second degree sexual assault, and second degree sexual assault on an at-risk adult. The trial court sentenced defendant to twelve years in the Department of Corrections (DOC) for sexual exploitation of a child, six years for contributing to the delinquency of a minor, two years to life for sexual assault on a child, four years to life for second degree sexual assault on an at-risk adult, and to two years in the county jail for second degree sexual assault. The trial court ordered that the first two sentences run consecutively to one another and concurrently with the remaining three sentences.

At the sentencing hearing, a contested issue was whether defendant met the criteria of a sexually violent predator as defined by § 18-3-414.5. After hearing evidence from a probation supervisor and three sex offender evaluators, the trial court adjudicated defendant a sexually violent predator. This appeal followed.

I.

Defendant contends that the sex offender registration and internet posting requirements of § 18-3-412.5 violate his constitutional rights to due process and trial by jury. Defendant argues that his adjudication as a sexually violent predator exposes him to an enhanced penalty; thus, in his view, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this determination had to be made by a jury and proved beyond a reasonable doubt. We disagree.

Colorado's sex offender registration law was amended effective July 1, 2000. Under the amended statute, any person sentenced as a sexually violent predator has a lifetime duty to register with local law enforcement agencies in the jurisdiction in which he or she resides. Section 18-3-412.5(3.5)(a), C.R.S.2001. Prior to this amendment, the registration statute permitted an offender, after a certain number of years, to petition the district court to discontinue the registration requirement. Colo. Sess. Laws 1994, ch. 290, § 18-3-412.5(7) at 1738.

In addition, on May 23, 2000, the General Assembly enacted legislation requiring the Colorado Bureau of Investigation to post a link on the State of Colorado Internet home page to a list containing the name, address, place of employment, physical description, and digitized photograph of any person required to register as a sexually violent predator. Section 18-3-412.5(3.6)(a), C.R.S.2001. An offender must pay for the cost of the photograph and for a set of fingerprints to verify the offender's identity. Section 18-3-412.5(3)(e), C.R.S.2001.

In Apprendi v. New Jersey, supra,

the Supreme Court determined that any fact, other than the fact of a prior conviction, that increases the maximum penalty for a crime beyond the prescribed statutory maximum for that crime must be submitted to the jury and proved beyond a reasonable doubt. See also People v. Martinez, 32 P.3d 520 (Colo. App.2001).

Because we conclude that the registration and Internet posting provisions of § 18-3-412.5 do not constitute punishment, Apprendi is inapplicable.

A. Lifetime Registration

Defendant argues that imposing on him a lifetime duty to register as a sex offender constitutes punishment. We reject the argument.

A division of this court has determined that the sex offender registration statute, § 18-3-412.5(1), C.R.S.2001, does not disadvantage those offenders subject to its provisions; thus, registration is not punishment subject to ex post facto analysis. Jamison v. People, 988 P.2d 177 (Colo.App. 1999). We adopt the same analysis here.

As noted by the division in Jamison, the intent of the General Assembly in enacting the sex offender registration provisions is not to inflict additional punishment, but rather to aid law enforcement officials in investigating future sex crimes and to protect the public safety. This purpose is expressly declared in the legislation:

The general assembly ... finds that the public must have limited access to information concerning persons convicted of offenses involving unlawful sexual behavior that is collected pursuant to this section to allow them to adequately protect themselves and their children from these persons. The general assembly declares, however, that, in making this information available on a limited basis to the public, it is not the general assembly's intent that the information be used to inflict retribution or additional punishment on any person convicted of an offense involving unlawful sexual behavior.

Section 18-3-412.5(6.5)(a), C.R.S.2001.

Moreover, requiring a person to register as a sex offender does not increase the time that person spends in custody. Jamison v. People, supra; see also People v. Montaine,

7 P.3d 1065 (Colo.App.1999).

Our analysis does not change even though persons categorized as sexually violent predators are no longer eligible, under the July 2000 amendment, to petition to be released from the registration requirements. Before this amendment, it was within the discretion of the trial court to release an offender from the duty to register. That the duty to register now lasts for life, as opposed to lasting indefinitely, does not transform it into a punishment.

B. Internet Posting

Defendant also argues that posting personal information about him on the internet, including his name, address, place of employment, physical description, and photograph, is a criminal penalty. We disagree.

Section 18-3-412.5(3.6)(a) provides that a link to a list of the personal information of certain sex offenders, including persons classified as sexually violent predators, reoffenders, and persons failing to register, will be posted on the state home page.

The trial court determines whether an offender is a sexually violent predator. Section 18-3-414.5(2), C.R.S.2001. A sexually violent predator is an offender: (1) who is eighteen years of age or older as of the date of the offense; (2) who has been convicted on or after July 1, 1999 of one of several enumerated offenses, including second degree sexual assault and sexual assault on a child; (3) whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and(4) who, based on the results of a risk assessment screening instrument, is likely subsequently to commit another of the listed offenses. Section 18-3-414.5(1), C.R.S. 2001.

As discussed, the intent of the General Assembly in enacting this provision was to serve public safety needs and to aid law enforcement. Although a legislature's descriptive label on a statute is not always dispositive, a reviewing court should reject that label only where a party challenging the statute provides "the clearest proof" that the statutory scheme is so punitive either in purpose or effect as to negate the stated civil intention. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, 515 (1997).

Whether placement on the internet sex offender list constitutes punishment is an issue of first impression in Colorado. We find the analyses in Femedeer v. Haun, 227 F.3d 1244 (10th Cir.2000), and People v. Stead, 845 P.2d 1156 (Colo.1993), to be instructive.

Femedeer examined a Utah statute, Utah Code Ann. § 77-27-21.5(10) (1998), that created a sex offender internet notification scheme substantially the same as Colorado's program. The court applied the factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), to determine whether posting personal information on the Internet about convicted sex offenders constituted additional criminal punishment in violation of the Ex Post Facto Clause.

The Mendoza-Martinez factors include: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.

The court in Femedeer determined that the Utah legislature intended to establish a civil remedy, not a criminal penalty. It then looked to the punitive effect of the statute under the Mendoza-Martinez factors and concluded that, overall, the dissemination of an offender's personal information over the internet did not serve as punishment.

In Stead, supra, the Colorado Supreme Court examined similar factors to determine...