People v. Meidinger , 1999 Colo. J. C.A.R. 4851 ( 1999 )

Opinion by

Judge METZGER.

Defendant, Dehonna Christine Meidinger, appeals the conditions of the sentence to probation she received after her entry of a guilty plea to one count of contributing to the delinquency of a minor. She also appeals the imposition of a sex offender surcharge. We vacate the sentence and remand the cause for further proceedings.

Defendant operated a prostitution enterprise. The charges filed in this ease resulted from two incidents in which defendant had arranged for her 16-year-old sister to engage in acts of prostitution. Defendant was charged with two counts each of patronizing a prostituted child, pimping, soliciting for child prostitution, pandering of a child, procurement of a child, inducement of child prostitution, and one count each of contributing to the delinquency of a minor,' prostitution, and soliciting for prostitution. An additional count of contributing to the delinquency of a minor was later added to the information.

Pursuant to a plea agreement, defendant pled guilty to one count of contributing to the delinquency of a minor. The remaining charges were dismissed.

Thereafter, the trial court sentenced defendant to two years probation, with the additional conditions that she submit to a mental health evaluation, maintain gainful employment, comply with all sex offender conditions, and register as a sex offender. The court also imposed a sex offender surcharge and ordered that defendant have no contact with children under the age of 18. This appeal followed.

I.

Defendant first contends the trial court erred' in determining that she was a sex offender. Specifically, she argues, because the offense to which she pled guilty, contributing to the delinquency of a minor, is not an enumerated sex offense, she is not a “sex offender” and should not have been required to register as such. We agree with the premise of her argument but reject the conclusion.

Section 16-11.7-102(8), C.R.S.1998, defines various offenses as being sex offenses. Since contributing to the delinquency of a minor is not so defined, it is not a sex offense. Nevertheless, we hold that defendant is a sex offender.

Section 16-11.7-102(2), C.R.S.1998, provides:

‘Sex offender’ means any person who is convicted in the state of Colorado ... of any sex offense as defined in subsection (3) of this section, or of any criminal offense, if such person has previously been convicted of a sex offense ... in the state of Colorado, or if such person has previously been convicted in any other jurisdiction of any offense which would constitute a sex offense ... or if such person has a history of any sex offenses as defined in subsection (3) of this section ....' (emphasis added)

The General Assembly did not define the term “history” as used in § 16-11.7-102(2); hence, we must ascertain its meaning. In doing so, we must construe the statute in a manner that is consistent with the legislature’s intent. People v. Davis, 794 P.2d 159 (Colo.1990). Also, if statutory language is ambiguous, we may consider the legislative history. People v. Legler, 969 P.2d 691 (Colo.1998).

The term “history” is ambiguous. It could refer, as defendant argues, to convictions for one or more of the enumerated sex offenses. We reject this restrictive interpretation since it would render superfluous the first portion of § 16-11.7-102(2), which defines a sex offender as one who was convicted of an enumerated sex offense.

Instead, we agree with the People’s assertion that “history” can include the underlying circumstances of the offense.

The legislative history of the statute supports this interpretation. Before enacting § 16-11.7-101, et seq., C.R.S.1998, which establishes a system for standardized evaluation and treatment programs for sex offenders, extensive hearings were held. In addressing the definitional provisions of the proposal, William Woodward, then Director of the Division of Criminal Justice, explained:

[Tjhat is why there [is] such a broad definition of sex offender, that is, a person currently charged with a sex offense or a person currently charged with a trespass, but when you read the arrest report it is clear the person attempted a sexual assault on someone in the house but didn’t get charged with that or it is someone who has a history of sex offending in the past and this time was picked up on burglary or robbery.

Hearings on H.B. 1021 before the House Judiciary Committee, 58th General Assembly, Second Session (January 14,1992).

This use of the term “history” has been employed in other, similar contexts. For example, in People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975) and People v. Madril, 746 P.2d 1329 (Colo.1987), the supreme court approved the trial court’s consideration of the defendant’s societal and criminal history in sentencing. And, in Logan v. People ex rel. Alamosa County, 138 Colo. 304, 308, 332 P.2d 897, 899 (1958), the court said:

The crime committed viewed in its setting; the nature and circumstances of the offense, particularly as they furnish a clue to the personality of the offender; whether the offense was violent or nonviolent; and the motives actuating the defendant in committing the offense, are components which the trial court will evaluate when considering the offense as a factor in the question of granting probation.

Thus, the reference to “history” in § 16-11.7-102(2) is consistent with previous interpretations of that term.

Consequently, it is clear to us that the General Assembly intended “history of sex offenses” to include conduct encompassed in the facts and circumstances of the offense.

Here, we conclude that the defendant had engaged in: (1) soliciting for child prostitution; (2) pandering of a child; (3) procurement of a child for sexual exploitation; and (4)inducement of child prostitution. These offenses are all enumerated sex offenses under § 16-11.7-102(3). Therefore, since defendant had a history of enumerated sex offenses, she could properly be characterized under § 16-11.7-102(2) as a “sex offender” and, thus, could be ordered by the court to undergo evaluation and treatment as such. See also Miyasato v. State, 892 P.2d 200 (Alaska Ct.App.1995)(burglary defendant with past record of sex offenses properly required to undergo sex offender treatment as condition of probation); State v. Shepherd, 554 N.W.2d 821 (N.D.1996)(burglary defendant required to undergo sex offender treatment where that condition was reasonably related to the underlying circumstances of crime).

Section 18-3-412.5(l)(b), C.R.S.1998, requires registration as a sex offender by any person who was convicted in Colorado after July 1, 1994, of an offense “for which the factual basis involved an offense involving unlawful sexual behavior_” Section 18-3-412.5(l)(b)(XXIII), C.R.S.1998, provides that unlawful sexual behavior includes: “Any offense that has a factual basis of one of the offenses specified in” the list of crimes constituting unlawful sexual behavior. The underlying offenses here are included in that list.

Thus, we reject defendant’s contention that imposition of sex offender conditions as part of her probation and requiring her to register as a sex offender are not authorized by statute.

II.

Defendant also argues the trial court erred in imposing sex offender conditions as part of her probation without ordering a sex offender evaluation as required by § 16-11.7-104, C.R.S.1998. We agree.

As explained in People v. Lenzini, 986 P.2d 980 (Colo.App.1999), completion of such an evaluation under circumstances such as these is mandatory. Thus, defendant’s sentence must be vacated and the cause must be remanded for preparation of such a report and for a new sentencing hearing.

III.

Because it may arise on rehearing, we address defendant’s contention that, since she was not convicted of a “sex offense” within the meaning of § 18-21-102(2), C.R.S. 1998, the trial court erred in imposing a sex offender surcharge. We agree.

Section 18-21-103(1), C.R.S.1998, provides that “each person who is convicted of a sex offense ... shall be required to pay a surcharge ....” (emphasis added) Section 18-21-102(2), defines “sex offense” as having “the same meaning as defined in section 16-11.7-102(3), C.R.S.”

A statute must be read and considered as a whole and should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts. See People v. District Court, 713 P.2d 918 (Colo.1986).

Applying this principle here, we find no authority for the imposition of the sex offender surcharge on defendant. Section 18-21-103, C.R.S.1998, specifically authorizes imposition of the surcharge only on persons convicted of “sex offenses” as defined in § 16-11.7-102(3), not on persons who are “sex offenders” as defined in § 16 — 11.7— 102(2).

Defendant is a “sex offender” because she had a “history” of sex offenses; however, she pled guilty to a crime which is not defined as a “sex offense.” Therefore, the sex offender surcharge may not be imposed.

Because defendant’s remaining contentions of error are either moot or unlikely to arise on rehearing, we will not address them.

The sentence is vacated, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Judge DAVIDSON concurs. Judge CRISWELL concurs in part and dissents in pari;.