People v. Al-Turki , 2017 COA 39 ( 2017 )

COLORADO COURT OF APPEALS 2017COA39
Court of Appeals No. 14CA0245
Arapahoe County District Court No. 05CR1571
Honorable J. Mark Hannen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Homaidan Al-Turki,
Defendant-Appellant.
ORDER AFFIRMED
Division IV
Opinion by JUDGE HAWTHORNE
Román, J., concurs
Harris, J., dissents
Announced April 6, 2017
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Davis Graham & Stubbs, LLP, Michael J. Gallagher, Chad D. Williams, Kyle W.
Brenton, Denver, Colorado, for Defendant-Appellant
¶1 This case presents only one question: Is a defendant who is
subject to section 18-1.3-406(1)(b), C.R.S. 2016, because he or she
committed a crime of violence and a sex offense under the Colorado
Sex Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001
to -1012, C.R.S. 2016, eligible to have his or her sentence to the
custody of the Department of Corrections for an indeterminate term
of incarceration modified to probation under section 18-1.3-
406(1)(a)? Based on our supreme court’s opinion in Chavez v.
People, 2015 CO 62, we conclude that the answer to this question is
no. So, we affirm the district court’s order denying defendant
Homaidan Al-Turki’s motion to reduce his sentence under Crim. P.
35(b).
I. Procedural History
¶2 As relevant here, Al-Turki was convicted under the LSA of
twelve counts of unlawful sexual contact through use of force,
intimidation, or threat, a class 4 felony as defined by section 18-3-
404(2)(b), C.R.S. 2016. The district court ultimately sentenced him
to indeterminate prison terms of six years to life on the unlawful
sexual contact convictions. The prosecution appealed this sentence
1
and a division of this court affirmed. See People v. Al-Turki, (Colo.
App. No. 11CA1247, Aug. 9, 2012) (not published pursuant to
C.A.R. 35(f)). Al-Turki renewed his previously filed Rule 35(b)
motion for reduction of sentence, arguing that he was eligible for a
probationary sentence under section 18-1.3-406(1)(a). After a
three-day evidentiary hearing, the district court denied the motion,
concluding that it did not have authority to modify Al-Turki’s
sentence because he was not eligible for probation under section
18-1.3-406(1)(a).
II. Sentence Modification
¶3 Al-Turki contends that he is eligible to have his indeterminate
term of incarceration sentence, which was imposed under the LSA
and the crime-of-violence statute, section 18-1.3-406(1)(b), modified
to probation under section 18-1.3-406(1)(a). We disagree.
¶4 We review statutory interpretation questions de novo. People
v. Bohn, 2015 COA 178, ¶ 9.
¶5 The mandatory sentencing for violent crimes statute, section
18-1.3-406(1), differentiates between crimes of violence that involve
sex offenses and those that do not involve sex offenses. Section 18-
1.3-406(1)(a) governs crimes of violence generally (i.e. non-sex
2
offenses), and allows the court to modify a sentence for a term of
incarceration to probation in limited circumstances. § 18-1.3-
406(1)(a) (“[T]he court, in a case which it considers to be exceptional
and to involve unusual and extenuating circumstances, may
thereupon modify the sentence . . . [and] [s]uch modification may
include probation if the person is otherwise eligible therefor.”).
¶6 Section 18-1.3-406(1)(b) governs crimes of violence involving
sex offenses and contains no similar “modification” language. And,
it provides that defendants convicted of a sex offense that is a crime
of violence shall be sentenced to an indeterminate term of
incarceration. Id. (“Notwithstanding the provisions of paragraph (a)
of this subsection (1), any person convicted of a sex offense, as
defined in section 18-1.3-1003(5), committed on or after November
1, 1998, that constitutes a crime of violence shall be sentenced to
the department of corrections for an indeterminate term of
incarceration . . . .”).
¶7 Al-Turki argues that his indeterminate term of incarceration
sentence is governed by both section 18-1.3-406(1)(a) and (1)(b). He
reads section 18-1.3-406(1)(a) as governing all crimes of violence,
even those that are sex offenses. To do so, he interprets the phrase
3
in the first sentence of section 18-1.3-406(1)(b), “[n]otwithstanding
the provisions of paragraph [(1)](a),” as meaning subsection (1)(b) is
a limited exception to subsection (1)(a). He therefore reads section
18-1.3-406(1)(b) to only modify subsection (1)(a) where the two
sections conflict, namely, as to the directive in subsection (1)(a) that
the sentencing court impose a determinant aggravated sentence.
¶8 But, our supreme court, in Chavez, interpreted section 18-1.3-
406(1)(b) and concluded that a crime-of-violence sex offender is not
eligible for probation.1 There, the defendant was convicted of a per
se crime of violence sex offense that required the sentencing court
to impose a sentence “in accordance with” the crime-of-violence
scheme. § 18-3-405.3(4), C.R.S. 2016. The defendant argued that
he was probation-eligible because he was subject to the LSA and it
allowed for probation. See § 18-1.3-1004(2), C.R.S. 2016.
¶9 The supreme court held that the defendant was not
probation-eligible because, even though he was subject to the LSA,
which allows for probation, he was also subject to the mandatory
1 In its opinion, the court quotes the “relevant part” of section 18-
1.3-406(1)(b), C.R.S. 2016, without including the “notwithstanding”
clause, and otherwise does not mention it. Chavez v. People, 2015
CO 62, ¶ 13.
4
crime-of-violence enhancement, and “[t]his forecloses probation.”
Chavez, ¶ 19. The court explained that the LSA required the
defendant to serve an indeterminate sentence, the crime-of-violence
statute required that he serve it in prison, and the LSA did not
change that. Id. The court also explained that because the
defendant “committed a crime of violence and a sex offense, [the
defendant] is subject to section 406(1)(b), not the general, non-sex-
offense section of 406(1)(a).” Id. at ¶ 20. It emphasized that section
18-1.3-406(1)(b) requires that defendants convicted of violent sexual
offenses “shall be sentenced to the department of corrections for an
indeterminate term of incarceration.” Id. Thus, the defendant
“[could] not be eligible for probation because ‘incarceration’ means
‘imprisonment, confinement in a jail or penitentiary,’ . . . and
‘“shall” indicates that [a] term is mandatory.’” Id. (citations
omitted).
¶ 10 Like the defendant in Chavez, Al-Turki was convicted of a per
se crime of violence sex offense that required the sentencing court
to impose a sentence “in accordance with” the crime-of-violence
scheme. § 18-3-405.3(4). He is subject to the LSA because he
stands convicted of a sex offense committed after November 1,
5
1998. See §§ 18-1.3-1003(4), -1003(5)(a)(III)(A), -1012, C.R.S. 2016.
And, because he committed a crime of violence and a sex offense,
he is subject to section 18-1.3-406(1)(b), not the general, non-sex-
offense section of 18-1.3-406(1)(a). Chavez, ¶ 20.
¶ 11 Because these circumstances are the same as the defendant’s
in Chavez, Al-Turki is foreclosed from probation and the provisions
in section 18-1.3-406(1)(a) allowing the court to modify a
determinate term of incarceration to probation are not available to
him. See id. at ¶ 21 (concluding that, as to LSA sex offender
defendant, “the crime-of-violence enhancement makes [defendant]
ineligible for probation”).
¶ 12 We recognize that Al-Turki’s request to modify his original
indeterminate term of incarceration to probation is different from
the defendant’s request in Chavez that he be sentenced initially to
probation rather than an indeterminate term of incarceration.
Nonetheless, our conclusion that Chavez mandates that Al-Turki is
ineligible for probation is unaltered by this difference. The supreme
court’s sweeping and unqualified language in Chavez answers
negatively the question whether a crime-of-violence sex offender’s
6
mandatory sentence to an indeterminate term of incarceration can
later be modified to probation.2 Id.
¶ 13 The district court did not err in concluding that section 18-
1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to
probation.
III. Conclusion
¶ 14 The district court’s order is affirmed.
JUDGE ROMÁN concurs.
JUDGE HARRIS dissents.
2 Despite the dissent’s detailed and eloquent reasoning, we are
“bound to follow supreme court precedent.” In re Estate of
Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney 250 P.3d
762, 768 n.3 (Colo. App. 2010)).
7
JUDGE HARRIS, dissenting.
¶ 15 Defendant Homaidan Al-Turki raised two distinct claims on
appeal. First, he contended that his convictions for unlawful sexual
contact were not crimes of violence under the Colorado Sex
Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001
to -1012, C.R.S. 2016, and, therefore, he was eligible for an initial
sentence to probation under the LSA, see § 18-1.3-1004(2)(a),
C.R.S. 2016. Second, and in the alternative, he contended that,
even if his convictions were per se crimes of violence that subjected
him to sentencing under the crime of violence statute, section 18-
1.3-406, C.R.S. 2016, the district court could modify his sentence
of imprisonment to a probationary sentence. This was true, he
argued, because the LSA did not change crime of violence
sentencing for sex offenders other than to mandate indeterminate
sentencing. Modification to probation was authorized for violent sex
offenders prior to enactment of the LSA and, therefore, the
modification continued to be authorized post-LSA.
¶ 16 During the pendency of the appeal, our supreme court issued
its opinion in Chavez v. People, 2015 CO 62. Chavez forecloses
Al-Turki’s first argument, but it does not address the second. The
8
majority opinion carefully and persuasively explains why Al-Turki
was not eligible for an initial sentence to probation under section
18-1.3-1004(2) or section 18-1.3-406. But it then assumes,
without additional argument or evidence, that the same reasoning
supports the entirely separate conclusion that section 18-1.3-406
does not authorize a subsequent modification of Al-Turki’s sentence
below the aggravated range. My examination of the language,
history, and purpose of the statutes, as well as the relevant case
law, leads me to the conclusion that the district court had the
authority to modify Al-Turki’s sentence, including a modification to
probation. Therefore, I must respectfully dissent.
I. Legal Background
¶ 17 An offense can qualify as a “crime of violence” in one of two
ways. Under section 18-1.3-406, a crime of violence is defined as
any of the enumerated offenses during the commission of which the
defendant used, or possessed and threatened the use of, a deadly
weapon or caused serious bodily injury or death to a
nonparticipant. § 18-1.3-406(2)(a). These crimes are sometimes
referred to as “defined” crimes of violence. See Chavez, ¶ 12. In
addition, some offenses (which may not necessarily meet the
9
statutory definition of a crime of violence) have been designated by
the legislature as crimes of violence for sentencing purposes. The
statutes defining these offenses direct the court to sentence the
defendant “in accordance with the provisions of section 18-1.3-
406.” These crimes are referred to as “per se” crimes of violence.
People v. Banks, 9 P.3d 1125, 1130 (Colo. 2000).
¶ 18 As the majority notes, Al-Turki was convicted of, among other
offenses, twelve counts of unlawful sexual contact by force, in
violation of section 18-3-404(2)(b), C.R.S. 2016. Unlawful sexual
contact is ordinarily a class 1 misdemeanor, but when committed
by the use of force, it is a class 4 felony sex offense and a “per se”
crime of violence subject to aggravated sentencing under the crime
of violence statute.
¶ 19 Prior to the enactment of the LSA in 1998, all crimes of
violence (including sex offenses) were subject to enhanced
sentencing under section 16-11-309(1)(a), the predecessor to
section 18-1.3-406(1)(a). See Ch. 318, sec. 1, § 18-1.3-406, 2002
Colo. Sess. Laws 1403. Under this provision, the court was
required to sentence any violent offender to a term of imprisonment
of at least the midpoint in, but no more than twice the maximum of,
10
the presumptive sentencing range for the offense of conviction.
§ 16-11-309(1)(a), C.R.S. 1985. The same provision, however,
authorized the trial court to modify any crime of violence sentence,
even to the point of probation, upon a finding of unusual and
extenuating circumstances. Id. Thus, while no violent offender was
initially eligible for a probationary sentence under the statute, every
violent offender who met the exceptional circumstances criteria was
eligible for a subsequent modification of his sentence to a term
below the aggravated range. See People v. Beyer, 793 P.2d 644, 646
(Colo. App. 1990) (the initial sentence for a crime of violence must
be in the aggravated range but may be modified to a sentence of
probation), overruled on other grounds by Robles v. People, 811 P.2d
804 (Colo. 1991).
¶ 20 The LSA was enacted with the goal of providing sex offenders
with lifetime treatment and supervision. § 18-1.3-1001, C.R.S.
2016. To that end, the LSA requires that any defendant convicted
of a sex offense be sentenced to an indeterminate term of
imprisonment of at least the minimum of the presumptive range
specified for that offense and a maximum of the sex offender’s life,
11
see § 18-1.3-1004(1)(a), though some sex offenders are initially
eligible for probation, see § 18-1.3-1004(2)(a).
¶ 21 The LSA includes its own provision for sex offenses that are
defined crimes of violence. See § 18-1.3-1004(1)(b). But it does not
separately address sentencing for sex offenses that are per se
crimes of violence. Instead, the statutes defining those offenses
continue to direct trial courts to sentence the defendant “in
accordance with” the crime of violence statute. The crime of
violence statute, however, did not provide for indeterminate
sentencing, so in 1998, when the legislature enacted the LSA, it
also amended the crime of violence statute to include a new section
that directed the trial court to impose an aggravated indeterminate
sentence for violent sex offenses. See Ch. 303, sec. 9, § 16-11-309,
1998 Colo. Sess. Laws 1291 (codified as amended at section 18-1.3-
406(1)(b)).
¶ 22 In its current iteration, the crime of violence statute now
provides, in relevant part:
(1)(a) Any person convicted of a crime of
violence shall be sentenced . . . to the
department of corrections for a term of
incarceration of at least the midpoint in, but
not more than twice the maximum of, the
12
presumptive range provided for such offense
. . . without suspension; except that, within
ninety-one days after he or she has been
placed in the custody of the department of
corrections, the department shall transmit to
the sentencing court a report on the evaluation
and diagnosis of the violent offender, and the
court, in a case which it considers to be
exceptional and to involve unusual and
extenuating circumstances, may thereupon
modify the sentence, effective not earlier than
one hundred nineteen days after his or her
placement in the custody of the department.
Such modification may include probation if the
person is otherwise eligible therefor1. . . .
(b) Notwithstanding the provisions of
paragraph (a) of this subsection (1), any person
convicted of a sex offense, as defined in section
18-1.3-1003(5), committed on or after
November 1, 1998, that constitutes a crime of
violence shall be sentenced to the department
of corrections for an indeterminate term of
incarceration of at least the midpoint in the
presumptive range specified in section 18-1.3-
401(1)(a)(V)(A) up to a maximum of the
person’s natural life, as provided in section 18-
1.3-1004(1).
§ 18-1.3-406(1)(a)-(b).
1A person is “eligible” for probation unless he has been convicted of
a class 1 felony or a class 2 petty offense, § 18-1.3-201, C.R.S.
2016, or unless otherwise specifically precluded. See, e.g., § 18-
1.3-401(8)(d)(II), C.R.S. 2016 (“In no case shall any defendant”
convicted of a class 2 or class 3 felony of child abuse “be eligible for
suspension of sentence or for probation or deferred prosecution.”).
13
¶ 23 Thus, the crime of violence statute now differentiates between
violent sex offenses and non-sex-related violent offenses. Hunsaker
v. People, 2015 CO 46, ¶ 24.
II. Chavez Does Not Control the Outcome of This Case
¶ 24 Like Al-Turki, the defendant in Chavez, ¶ 16, was convicted of
a sex offense that constituted a per se crime of violence. Under the
LSA, a defendant is subject to crime of violence sentencing, and
ineligible for an initial sentence of probation, only when he has been
convicted of a defined crime of violence. § 18-1.3-1004(1)(b), (2)(a).
Thus, Chavez argued — as Al-Turki did — that he was not subject
to section 18-1.3-406 and, instead, the district court could have
initially sentenced him to probation under section 18-1.3-1004(2).
Chavez, ¶¶ 17, 19.
¶ 25 The supreme court rejected that argument, explaining that
Chavez was subject to the crime of violence enhancement, not
under section 18-1.3-1004(1)(b) of the LSA, but under the statute
defining his offense, which mandated that he be sentenced “in
accordance” with section 18-1.3-406. Id. at ¶ 16. And, like all
violent offenders, violent sex offenders are not initially eligible for
probation under section 18-1.3-406. Id. at ¶¶ 19-20. The supreme
14
court did not address whether the defendant’s sentence could be
subsequently modified to probation.
¶ 26 Still, the majority highlights two passages from Chavez that it
says resolve the question. First, in responding to Chavez’s
argument that he was eligible for probation under the LSA, the
court stated:
Chavez, however, is not probation-eligible
because he is also subject to the mandatory
crime-of-violence enhancement. This
forecloses probation. Put differently, the LSA
requires that Chavez serve an indeterminate
sentence. The crime-of-violence enhancement
requires that he serve it in prison, and the LSA
did not alter that.
Id. at ¶ 19 (citation omitted).
¶ 27 If probation was “foreclosed” for Chavez, the majority reasons,
it must be “foreclosed” for Al-Turki, who was also convicted of a per
se violent sex offense. But the cited language means only that, as a
long-established matter, violent offenders — whether sex offenders
or non-sex offenders — are precluded under section 18-1.3-406
from receiving an initial sentence to probation. As noted, prior to
the LSA’s adoption, the crime of violence statute required that “[a]ny
person convicted of a crime of violence shall be sentenced . . . to a
15
term of incarceration . . . without suspension,” but authorized a
subsequent sentence modification to probation. § 16-11-309(1)(a),
C.R.S. 1985.
¶ 28 The court’s pronouncement that the mandatory crime of
violence statute “forecloses probation” cannot signal some new,
post-LSA rule prohibiting a modification to probation of a sex
offender’s sentence. If it did, the court would not have declared
that “the LSA did not alter” the pre-LSA crime of violence
sentencing rules.
¶ 29 Second, the majority points to the Chavez court’s distinction
between section 18-1.3-406(1)(a) and (1)(b), and its emphasis on
incarceration as the required punishment:
Because Chavez committed a crime of violence
and a sex offense, he is subject to section
406(1)(b), not the general, non-sex-offense
section of 406(1)(a). Section 406(1)(b) says
defendants convicted of violent sexual offenses
“shall be sentenced to the department of
corrections for an indeterminate term of
incarceration . . . .” Chavez cannot be eligible
for probation because “incarceration” means
“imprisonment, confinement in a jail or
penitentiary,” . . . and “‘shall’ indicates that a
term is mandatory[.]”
Id. at ¶ 20 (citations omitted).
16
¶ 30 But here, too, the court is merely reciting the general rule that
a violent sex offender, like any violent offender, is not eligible for an
initial sentence to probation. True, section 18-1.3-406(1)(b)
requires that defendants convicted of violent sex offenses be
sentenced to a term of incarceration, but so does section 18-1.3-
406(1)(a), and it is undisputed that sentences imposed under
section 18-1.3-406(1)(a) may be modified, including a modification
to probation. Thus, the distinction between section 18-1.3-406(1)(a)
and (1)(b) could not have been determinative of the issue of
probation eligibility.
¶ 31 Instead, in my view, the court distinguished between sections
18-1.3-406(1)(a) and (1)(b) to underscore that the legislature’s
addition of section 18-1.3-406(1)(b) in response to the enactment of
the LSA did not alter the general rule that violent offenders are not
initially eligible for probation. Beyer, 793 P.2d at 646. That is why
the distinction is preceded by the language discussed above: “[T]he
LSA requires that Chavez serve an indeterminate sentence. The
crime-of-violence enhancement requires that he serve it in prison,
and the LSA did not alter that.” Chavez, ¶ 19 (citation omitted).
17
¶ 32 Thus, I agree with the majority that Chavez decided the
following:
(1) A defendant, like Al-Turki, who is convicted of a per
se crime of violence is subject to the mandatory
crime-of-violence enhancement in section 18-1.3-
406(1)(b).
(2) Section 18-1.3-406(1)(b) applies to violent sex
offenders and mandates an enhanced indeterminate
sentence.
(3) Section 18-1.3-406(1)(b) forecloses an initial
sentence to probation because (like section 18-1.3-
406(1)(a)) it requires that the defendant be
sentenced to the custody of the department of
corrections for a term of incarceration.
¶ 33 But Chavez does not address, much less answer, the other
question presented on appeal: even if Al-Turki was initially ineligible
for probation under section 18-1.3-406(1)(b), did the district court
have authority to modify his sentence under section 18-1.3-
406(1)(a)?
III. The District Court Had Authority to Modify Al-Turki’s Sentence
18
¶ 34 To answer that question, I must examine section 18-1.3-406
and certain provisions of the LSA, and the interplay between those
statutes. The goal of statutory interpretation is to discover and give
effect to the legislative intent. Vensor v. People, 151 P.3d 1274,
1275 (Colo. 2007). If statutory language is clear, we apply its plain
and ordinary meaning, but if the statute is ambiguous — meaning
that it is reasonably susceptible to multiple interpretations — we
determine the proper construction by examining the legislative
intent, the circumstances surrounding its adoption, and the
possible consequences of various constructions. Hunsaker, ¶ 11.
¶ 35 The district court deemed section 18-1.3-406(1)(b)
unambiguous. Adopting the People’s primary argument in
opposition to Al-Turki’s motion, the district court read section 18-
1.3-406(1)(b)’s introductory phrase, “notwithstanding the provisions
of paragraph (a) of this subsection (1),” to mean that no part of
section 18-1.3-406(1)(a) applied to violent sex offenders sentenced
under section 18-1.3-406(1)(b) and therefore a modification of the
sentence to probation was impermissible.
¶ 36 But I read the term “notwithstanding” to mean that section
18-1.3-406(1)(b) overrides conflicting provisions of section 18-1.3-
19
406(1)(a). This appears to be the favored interpretation of a
“notwithstanding” clause. See, e.g., Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1083 (9th Cir. 2013) (“As a general matter,
‘notwithstanding’ clauses nullify conflicting provisions of law.”);
Arias v. Superior Court, 209 P.3d 923, 931 (Cal. 2009)
(“notwithstanding” clause is “a ‘term of art’ . . . that declares the
legislative intent to override all contrary law”; it does not render
nonconflicting provisions inapplicable) (citation omitted); Missouri
ex rel. Mo. Pub. Serv. Comm’n v. Joyce, 258 S.W.3d 58, 62 (Mo.
2008) (“notwithstanding” clause has the effect of “preventing a
conflict from arising between two statutory sections”); see also
Zamarripa v. Q & T Foods Stores, Inc., 929 P.2d 1332, 1339 n.9
(Colo. 1997) (“notwithstanding” means “without prevention or
obstruction from or by”) (citation omitted). Thus, I construe the
“notwithstanding” clause in section 18-1.3-406(1)(b) to override only
the inconsistent part of section 18-1.3-406(1)(a) — the directive that
trial courts impose a determinative aggravated sentence.2
2 According to the People, even if the “notwithstanding” clause is
interpreted to invalidate only conflicting provisions of section 18-
1.3-406(1)(a), C.R.S. 2016, the result is the same “because
20
¶ 37 The People counter that if the “notwithstanding” clause were
intended to carve out an exception to the statute limited to
indeterminate sentencing for sex offenders, section 18-1.3-406(1)(b)
would read: “Any person convicted of a sex offense . . . that
constitutes a crime of violence shall be sentenced to the department
of corrections . . . or to probation for an indeterminate term.” But
that alternative language would not implement a limited carve-out
for indeterminate sentencing; instead, it would permit an initial
sentence to probation for a violent offender, something prohibited
under both (1)(a) and (1)(b) of section 18-1.3-406. So, the People’s
argument does not persuade me that I have misconstrued the
“notwithstanding” clause.
¶ 38 Still, even assuming that my interpretation of the clause is not
definitive, it is at least reasonable, and if one could sensibly credit
both my reading and the district court’s, then the statute is
ambiguous. See Gibson v. Parish, 360 F. App’x 974, 980 (10th Cir.
authorization of probation conflicts with mandatory prison sentence
with no exceptions.” But that argument just begs the question of
whether section 18-1.3-406(1)(a)’s exception to a mandatory prison
sentence applies to all violent offenders, including violent sex
offenders sentenced under section 18-1.3-406(1)(b).
21
2010) (“notwithstanding” clause was susceptible to more than one
reasonable interpretation, rendering the statute ambiguous).
¶ 39 Relying on rules of statutory construction, I conclude that the
pre-existing provisions of section 18-1.3-406(1)(a) that are not
inconsistent with section 18-1.3-406(1)(b) apply equally to sex
offenders sentenced under 18-1.3-406(1)(b).
¶ 40 First, as I noted earlier, section 18-1.3-406(1)(b) was added
only to accommodate the LSA’s new indeterminate sentencing
scheme: after adoption of the LSA, offenders who committed non-
sex-offense per se crimes of violence could continue to be sentenced
under section 18-1.3-406(1)(a), but offenders who committed violent
sex offenses had to be sentenced to aggravated indeterminate
sentences, necessitating the amendment to the crime of violence
statute. The supreme court, though, has made clear that the LSA
“was not intended to alter then-existing sentencing guidelines, other
than to allow for lifetime supervision,” Hunsaker, ¶ 24, particularly
when it comes to sentencing for per se violent sex offenses, see
Chavez, ¶ 21 (holding that sentencing for per se crimes of violence
continues to be governed by section 18-1.3-406 because a contrary
interpretation “would contravene the General Assembly’s intent to
22
preserve the mandatory sentencing scheme for per se crimes of
violence predating the LSA”). Thus, “[p]aragraph (1)(b) simply
dictates that violent sex crimes, unlike violent crimes generally, are
also subject to indeterminate life sentencing;” the inclusion of
section 18-1.3-406(1)(b) does not demonstrate an intent by the
General Assembly to otherwise change the sentencing scheme for
violent sex offenders. Hunsaker, ¶ 27.
¶ 41 Prior to the LSA, all violent offenders were eligible for
modification of their mandatory custodial sentences, including to
probation. And because the LSA’s “legislative declaration
demonstrates a clear intent not to increase the punishment of sex
offenders” with terms of incarceration “longer than those of other
felons of the same class,” Vensor, 151 P.3d at 1278, I conclude that
the legislature intended to permit modification of a sex offender’s
sentence on the same terms as any other violent offender, except
where specifically precluded.
¶ 42 Under the People’s interpretation, section 18-1.3-406(1)(b)
entirely disrupts the pre-existing process for sentence reductions.
Their argument is that no part of section 18-1.3-406(1)(a) applies to
offenders sentenced under 18-1.3-406(1)(b). That would mean that
23
offenders who committed per se violent sex offenses are not just
ineligible for a modification to probation; they are categorically
ineligible under Crim. P. 35(b) for any sentence reduction to a term
below the aggravated range.
¶ 43 Rule 35(b) allows the district court to reconsider, in the
interests of justice, the sentence previously imposed and, in its
sound discretion, resentence the defendant to a lesser term “within
the statutory limits.” People v. Smith, 189 Colo. 50, 52, 536 P.2d
820, 822 (1975); accord Beyer, 793 P.2d at 646. When a violent
offender seeks relief under Rule 35(b), the court’s authority to
resentence him outside the statutory limits — to a term below the
mandatory aggravated range — arises entirely from section 18-1.3-
406(1)(a). Beyer, 793 P.2d at 646.
¶ 44 Thus, under the People’s construction, the addition of
subsection (1)(b) to section 18-1.3-406 not only directed the
imposition of aggravated indeterminate sentencing for violent sex
offenders, it also eliminated any possibility under Rule 35(b) that a
court could resentence those offenders outside the statutory
aggravated range. But given that implementation of the LSA was
not intended to alter the existing sentencing rules, had the
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legislature nonetheless intended to institute a sweeping change to
the availability of sentence reductions for certain violent sex
offenders, I believe that it would have done so explicitly.
¶ 45 Indeed, as Al-Turki points out, when the legislature intends to
preclude an otherwise available sentence, including a sentence to
probation, it says so. See, e.g., § 18-1.3-401(8)(d)(II), C.R.S. 2016
(“In no case shall any defendant” convicted of a class 2 or class 3
felony of child abuse “be eligible for suspension of sentence or for
probation or deferred prosecution.”); § 18-1.3-804(4), C.R.S. 2016
(“In no case shall any [habitual burglar] . . . be eligible for
suspension of sentence or probation.”).
¶ 46 My conclusion that section 18-1.3-406(1)(b) was enacted for
the limited purpose of instituting indeterminate aggravated
sentencing for certain violent sex offenders is also supported by the
LSA’s sentencing scheme. As I have pointed out, the LSA includes
its own provision regarding sentencing for defined crimes of
violence, which tracks the mandatory sentencing language from
section 18-1.3-406(1)(a):
If the sex offender committed a sex offense that
constitutes a crime of violence, as defined in
section 18-1.3-406, the district court shall
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sentence the sex offender to the custody of the
department for an indeterminate term of at
least the midpoint in the presumptive range for
the level of offense committed and a maximum
of the sex offender’s natural life.
§ 18-1.3-1004(1)(b). In contrast, the LSA does not have a provision
that governs sentencing for per se crimes of violence. Even after
much of the criminal code was reorganized and renumbered in
2002, the statutes defining per se violent sex offenses referred the
trial court not to the LSA’s own crime of violence sentencing
provision, but to section 18-1.3-406. See Chavez, ¶ 18 (sentence of
sex offender convicted of per se crime of violence was enhanced
under section 18-1.3-406(1)(b), not section 18-1.3-1004(1)(b)).
¶ 47 Take, for example, the statute under which Al-Turki was
convicted, section 18-3-404. That statute instructs that “[i]f a
defendant is convicted of a class 4 felony of unlawful sexual contact
. . ., the court shall sentence the defendant in accordance with the
provisions of section 18-1.3-406.” § 18-3-404(3). But sex offenders
who commit per se crimes of violence are “[w]ithout question”
subject “to the LSA,” Chavez, ¶ 19, and, therefore, the legislature
could have required district courts to use the LSA, and not section
18-1.3-406, to enhance those defendants’ sentences by simply
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instructing that they be sentenced “in accordance with section 18-
1.3-1004(1)(b).” Instead, the legislature made the choice — which I
will assume was informed and deliberate, see People v. Gookins, 111
P.3d 525, 528 (Colo. App. 2004) (in construing statutes, courts
presume that the legislature acted deliberately in its choice of
statutory language) — to continue to direct courts to section 18-1.3-
406 as the applicable enhancement provision, demonstrating its
intent to maintain the sentencing status quo for sex offenders
convicted of per se crimes of violence.3
¶ 48 The People argue that section 18-1.3-406(1)(b)’s reference to
the LSA’s general indeterminate sentencing provision, rather than
3 Even if section 18-1.3-1004(1)(b), C.R.S. 2016, which applies to
sex offenders who are convicted of “defined” crimes of violence,
precludes a subsequent modification of the offender’s sentence
below the aggravated range — an issue I do not address — the
prohibition does not undermine my conclusion that probation is
nonetheless available to other violent sex offenders. It makes sense
that the legislature would treat sex offenders convicted of defined
crimes of violence differently than sex offenders convicted of per se
crimes of violence — the distinction “comports with the goals of the
criminal law to separate more culpable from less culpable conduct.”
People v. Banks, 9 P.3d 1125, 1131 (Colo. 2000) (legislature acted
reasonably in requiring extraordinary risk sentencing for
defendants convicted of defined crimes of violence, but not per se
crimes of violence, because defendants in the former category are
more culpable than those in the latter category).
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its probation provision, suggests an intent to preclude a sentence
reduction to probation. Section 18-1.3-406(1)(b) calls for the
imposition of an indeterminate term of imprisonment “up to a
maximum of the person’s natural life, as provided in section 18-1.3-
1004(1).” (Emphasis added.) Section 18-1.3-1004(1) provides
instructions for imposing an indeterminate prison sentence, while
section 18-1.3-1004(2) authorizes an initial sentence to probation
under certain circumstances. According to the People, if section
18-1.3-406(1)(b) authorized a modification of a sex offender’s
sentence to probation, the section would direct courts to sentence
“as provided in section 18-1.3-1004(1) or 1004(2).”
¶ 49 But everyone agrees that section 18-1.3-406 precludes an
initial sentence to probation. So of course section 18-1.3-406(1)(b)
would not direct the district court to sentence a sex offender “as
provided in section 18-1.3-1004(2)” — a section of the LSA that
authorizes an initial sentence to probation — regardless whether
section 18-1.3-406(1)(b) contemplated a later modification to
probation.
¶ 50 Finally, in considering the consequences of a particular
interpretation of section 18-1.3-406(1)(b), I note that the People’s
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construction of the statute would significantly limit the discretion of
district courts to differentiate among offenders, a result we
generally try to avoid. Hunsaker, ¶ 26; Vensor, 151 P.3d at 1278.
Indeed, eliminating the possibility of a sentence modification below
the mandatory aggravated range for every per se violent sex offender
“is antithetical to the legislature’s goal of increasing sentencing
options in this context.” Hunsaker, ¶ 26.
¶ 51 Although the language of section 18-1.3-406(1)(b) is not a
model of clarity, I think the legislative intent is clear. And I am
mindful of the well-settled principle that “[a] statute should not be
construed in a manner which defeats the obvious legislative intent.”
People v. Summers, 208 P.3d 251, 254 (Colo. 2009) (citation
omitted). I therefore conclude that the district court in this case
had authority under section 18-1.3-406 to reduce Al-Turki’s
sentence below the statutory aggravated range, including to
probation.
¶ 52 I do not mean to suggest, however, that a modification to
probation would be warranted in this case. That is a determination
for the district court. But based on my reading of section 18-1.3-
406 and the LSA, I would reverse the judgment and remand the
29
case to permit the district court to decide Al-Turki’s motion on the
merits.
30