23CA0361 Peo v Pedersen 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0361
Mesa County District Court No. 99CR60
Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Harry Earl Pedersen,
Defendant-Appellant.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE NAVARRO
Pawar and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Harry Earl Pedersen, Pro Se
*Sitting by designation of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 Defendant, Harry Earl Pedersen, appeals the district court’s
order denying his Crim. P. 35(a) motion and supplement. We affirm
the order but remand for modification of the mittimus.
I. Background
¶ 2 Based on allegations that he sexually assaulted three different
children, Pedersen pleaded guilty to three counts of sexual assault
on a child as part of a pattern of abuse. The remaining counts were
dismissed. The date of offense for each count was “on or about
NOVEMBER 01, 1998, through JANUARY 12, 1999.”
¶ 3 The district court sentenced Pedersen to concurrent ninety-
nine-year prison sentences on each count. In 2002, however, the
court agreed with one of Pedersen’s postconviction arguments and
amended his sentence to concurrent indeterminate terms of ten
years to life in prison “[p]lus a mandatory period of parole as
required by statute.”
¶ 4 In 2022, Pedersen moved for postconviction relief under Crim.
P. 35(a), alleging that the parole component of his sentence was
illegal. Relying on section 17-2-201(5)(a.5), C.R.S. 1998, he argued
that he was subject to discretionary parole, rather than mandatory
parole, because his offense was committed on or after July 1, 1996,
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but before July 1, 2002. Further, he asserted that, because section
17-2-201(5)(a.7) “was not valid until July 1, 2002,” applying this
provision to his offenses would constitute a violation of the Ex Post
Facto Clauses of the United States and Colorado Constitutions.
¶ 5 The prosecution responded that Pedersen’s parole sentence
was governed by section 17-2-201(5)(a.7), not subsection (5)(a.5).
But in accordance with People v. Tucker, 194 P.3d 503 (Colo. App.
2008), the prosecution proposed amending the mittimus to read,
“Parole is determined under section 16-13-806(1)(b), C.R.S. 1999,
requiring the parole board to impose a minimum parole period of
twenty years for the class three felony, subject to the provisions of
section 17-2-201(5)(a.7), C.R.S. 1999.”
¶ 6 The district court denied the motion but amended the
mittimus to reflect that “[d]efendant’s term of incarceration is
followed by parole as provided by law. The board is to review
[d]efendant’s sentence and determine the period of parole by the
application of the law in effect on the date of offense.”
II. Analysis
¶ 7 Pedersen contends that the parole portion of his sentence is
illegal because it should be subject to “a discretionary definite
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parole period of five years” as required by section 17-2-201(5)(a.5),
and not “indeterminate mandatory parole of 10 to 20 years.” An
illegal sentence is one that is not authorized by law, meaning that it
is inconsistent with the sentencing scheme established by the
legislature. People v. Jenkins, 2013 COA 76, ¶ 11. Illegal sentence
claims may be raised at any time. Crim. P. 35(a). Reviewing the
legality of Pedersen’s sentence de novo, Jenkins, ¶ 11, we reject his
contention.
¶ 8 A person convicted of a sex offense committed on or after
November 1, 1998, is subject to the provisions of the Colorado Sex
Offender Lifetime Supervision Act of 1998 (Act). § 18-1.3-1012,
C.R.S. 2023. Sexual assault on a child as part of a pattern of
abuse, as described in section 18-3-405, C.R.S. 2023, is defined as
a sex offense. § 18-1.3-1003(5)(a)(IV), C.R.S. 2023. Therefore,
because Pedersen was convicted of three counts of sexual assault
on a child committed on or after November 1, 1998, he is subject to
the Act. See People v. Simon, 219 P.3d 789, 790 (Colo. App. 2009)
(“Crimes such as [sexual assault on a child], if committed after
November 1, 1998, would . . . be subject to an indeterminate life
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sentence under the . . . Act.”), rev’d on other grounds, 266 P.3d
1099 (Colo. 2011).
¶ 9 Once a sex offender sentenced to incarceration under the Act
has completed the minimum term of their sentence (less any earned
time), the parole board determines whether to release them to
parole. § 18-1.3-1006(1)(a), C.R.S. 2023. In this sense, whether to
release a sex offender to parole is within the parole board’s
discretion. But if the parole board does so, section 18-1.3-
1006(1)(b) plainly requires mandatory minimum periods of parole.
See Tucker, 194 P.3d at 504 (recognizing that using the words
“mandatory” and “discretionary” to characterize sex offender parole
does not adequately encompass the requirements of the Act).
¶ 10 Because Pedersen was convicted of three class 3 felony sex
offenses committed on or after November 1, 1998, he was subject to
a statutorily mandated parole period of at least twenty years, up to
a maximum of the remainder of his life. See § 18-1.3-1006(1)(b).
Accordingly, the parole portion of his sentence comports with the
statutory sentencing scheme and is therefore authorized by law.
¶ 11 Nevertheless, Pedersen asserts that he should have been
sentenced to a discretionary term of parole under section 17-2-
5
201(5)(a.5). While subsection (5)(a.5) allows discretionary parole for
some sex offenses committed between July 1996 and July 2002, it
does not apply to all sex offenses. Specifically, the discretionary
parole term does not apply to a “person sentenced for conviction of
a sex offense” under the Act for an offense committed on or after
November 1, 1998. § 17-2-201(5)(a.7); see also Ch. 303, sec. 10,
§ 17-2-201(5)(a.7), 1998 Colo. Sess. Laws 1291 (enacting exception
to section 17-2-201(5)(a.5) for sex offenses committed on or after
November 1, 1998, that are subject to sentencing under the Act).
Rather, section 17-2-201(5)(a.7) applies to sex offenses within the
meaning of the Act — like Pedersen’s — committed on or after
November 1, 1998, and requires a term of parole consistent with
the Act.
¶ 12 As to Pedersen’s assertion that subsection (5)(a.7) was “not
valid” until July 1, 2002 (after his offense dates) and, therefore,
cannot be applied to him, we disagree. Subsection (5)(a.7) was in
effect before the General Assembly’s 2002 amendment to
subsection (5)(a.5). Subsection (5)(a.5) was amended in 2002 to
add the language, “[e]xcept as otherwise provided in paragraph (a.7)
of this subsection (5),” which clarified that subsection (5)(a.5) does
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not apply where subsection (5)(a.7) applies. See Ch. 48, sec. 2,
§ 17-2-201(5)(a.5), 2002 Colo. Sess. Laws 125. Because the
amended language merely clarified the pre-existing statute, it did
not change the law. See People v. Frantz, 114 P.3d 34, 39 (Colo.
App. 2004) (the presumption that the legislature intended to change
the law by amending a statute does not apply if the amendment
simply clarifies the pre-existing statutes). Thus, because section
17-2-201(5)(a.7) was in effect when Pedersen committed the
offenses for which he pleaded guilty, his ex post facto claim
regarding this statute lacks merit.
¶ 13 Furthermore, the cases on which Pedersen relies are
inapposite. People v. Rockwell, 125 P.3d 410 (Colo. 2005), Delgado
v. People, 105 P.3d 634 (Colo. 2005), Martin v. People, 27 P.3d 846
(Colo. 2001), and People v. Cooper, 27 P.3d 348 (Colo. 2001),
involved sex offenses committed before November 1, 1998. See
Rockwell, 125 P.3d at 416 (addressing parole for a defendant who
committed a crime between July 1, 1993, and July 1, 1996);
Delgado, 105 P.3d at 636 (addressing parole for a defendant who
committed a crime in February 1998); Martin, 27 P.3d at 849
(addressing parole for a defendant convicted of a sexual assault
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committed in 1993); Cooper, 27 P.3d at 357 n.7 (stating that its
holding does not address parole for any offenders convicted of a
sexual offense occurring after the enactment of the Act). And People
v. Tolbert, 216 P.3d 1 (Colo. App. 2007), addressed a defendant who
was convicted of a class 5 felony; therefore, the provisions of parole
under the Act (and at issue in this case) were not applicable. See
(distinguishing Tolbert on that basis).
¶ 14 Accordingly, having concluded that Pedersen’s offenses are
subject to section 17-2-201(5)(a.7) and require the parole board to
set the duration of the term of parole as required by the Act, the
district court correctly amended the mittimus to remove the
reference to mandatory parole. We agree with the People and the
Tucker division, however, that the better practice is to state on the
mittimus the applicable statutory provisions — that parole is
determined under section 18-1.3-1006(1)(b), requiring the parole
board to impose a minimum parole period of twenty years for the
class 3 felonies, subject to the provisions of section 17-2-
201(5)(a.7). See Tucker, 194 P.3d at 504.
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III. Conclusion
¶ 15 The order is affirmed, and the case is remanded for
modification of the mittimus consistent with this opinion.
JUDGE PAWAR and JUDGE RICHMAN concur.
