Allen v. People , 307 P.3d 1102 ( 2013 )

Justice MARQUEZ,

concurring in the judgment.

126 I concur in the judgment because I agree that section 18-3-414.5(@), CRS. (2012), requires the trial court ultimately to determine whether an offender shall be designated a sexually violent predator ("SVP") as defined by section 18-8-414.5(1)(a), C.R.S. (2012), and because I conclude that the trial court did not err in making that designation in this case. However, I write separately because I disagree with the majority's suggestion that a court (including this court) may effectively disregard the recidivism risk assessment sereening instrument and instead independently determine an offender's likelihood to recidivate for purposes of section 18-3-414.5(1)(a)(IV), C.R.S. (2012), based on whatever factors the court deems relevant. The majority holds that the trial court "should give substantial deference" to the results of the risk assessment sereening instrument. Maj. op. 112. Yet the majority proceeds to resolve Allen's case giving virtually no deference to the instrument. Indeed, rather than deferring to the evidence-based risk factors contained within the risk assessment screening instrument, the majority independently opines on Allen's likelihood to recidivate for purposes of section 18-8-414.5(1)(a)(IV), based on factors in the record it deems to be "highly relevant." Id. %20. In my view, the majority's admonition that a trial court give "substantial deference" to the risk assessment screening instrument becomes illusory if the trial court (or this court) may deviate from that assessment on virtually any grounds the court independently predicts may be indicative of recidivism.

127 The majority's disregard for the risk assessment screening instrument contravenes the plain language of the statutory scheme and clear legislative intent to ground the risk of recidivism prong of the SVP designation in empirical research and analysis of evidence-based practices. In so doing, the majority minimizes the legislature's judgment that the evidence-based risk assessment is the most reliable tool available to the court to determine an offender's likelihood to recidivate for purposes of section 18-3-414.5(1)(a)(IV). I agree with the majority that a trial court is not bound by an evaluator's assessment regarding an offender's risk of recidivism, and that where a trial court disagrees with the evaluator's recidivism assessment, it must support its decision with findings, on the record. However, in my view, the trial court's determination with respect to this criterion of the SVP determination nevertheless must be "based upon" the recidivism risk factors in the risk assessment screening instrument.

I.

128 The general assembly has declared that "persons who are convicted of offenses involving unlawful sexual behavior and who are identified as sexually violent predators pose a high enough level of risk to the community that persons in the community should receive notification concerning the identity of these sexually violent predators." § 16-13-901, C.R.S. (2012)⁵ The general assembly has provided for the designation of certain sex offenders as "sexually violent predators" in order to safeguard the public against their future criminal behavior. See § 16-11.7-101, C.R.S. (2012). To that end, an SVP designation results in active notification to the community regarding the offender's identity. § 16-13-901. Importantly, the general assembly has recognized "the high potential for vigilantism that often results from community notification and the dangerous potential that the fear of such vigilantism will drive a sex offender to disappear and attempt to live without supervision." Id. Therefore, it has declared that such active notification should only occur in cases involving a "high degree of risk to the community." Id.

{29 Section 18-8-414.5(1)(a) defines a "sexually violent predator" as an offender:

(I) Who is eighteen years of age or older as of the date the offense is committed [or, if younger than eighteen, is tried as an adult];

(II) Who has been convicted on or after July 1, 1999, of [a qualifying sexual offense), or of an attempt, solicitation, or conspiracy to commit [a qualifying sexual offense];

(III) 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

(IV) Who, based upon the results of a risk assessment screening instrument developed by the division of criminal justice in consultation with and approved by the sex offender management board established pursuant to section 16-11.7-108(1), C.R.S., is likely to subsequently commit one or more [qualifying sexual offenses] under the cireumstances described in [paragraph (a)(IID)1.

§ 18-8-414.5(1)(a)(I)-(IV), C.R.S. (2012).

[30 Under the statute, the trial court determines whether an offender meets all four criteria necessary to qualify for SVP designation. § 18-8-414.5(2) (" [The court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator."). These criteria represent a legislative judgment as to which offenders qualify as "sexually violent predators," that is, those offenders who pose a sufficiently high risk to the community to warrant - active - community - notification. First, section 18-38-414.5(1)(a)(I) requires the offender to be an adult or to have been tried as an adult. Second, the offender must have committed (or attempted, solicited, or conspired to commit) one of the qualifying offenses - enumerated in - section - 18-3-414.5(1)(a)(II). These qualifying offenses, which are limited to offenses involving actual sexual contact, generally reflect violent be-haviors.⁶ Third, section18-3414.5(1)(a)(III) examines the relationship between the offender and the victim. This criterion focuses on the "predatory" nature of the offense. An offender meets this criterion if he targeted a "stranger" or "established or promoted a relationship" with the victim "primarily for the purpose of sexual victimization." This criterion reflects a legislative judgment that offenders who demonstrate a propensity to target a broader pool of victims pose a higher risk to the broader community. People v. Hunter, 2013 CO 48, ¶22, 307 P.3d 1083, 2013 WL 3322219 (Marquez, J., dissenting). Finally, section 18-8-414.5(1)(a)(IV) concerns the likelihood that the offender will commit additional violent and predatory sexual offenses in the future. At issue here is this fourth criterion.

1 31 Unlike the age, qualifying offense, and relationship criteria of the SVP designation, the offender's risk of recidivism must be "based upon the results of a risk assessment screening instrument" developed by the division of criminal justice ("DCJ") in consultation with, and approved by, the sex offender management board ("SOMB"). Compare § 18-8-414.5(1)(a)(IV), with § 18-3-414.5(1)(a)(I)-(III); see also § 24-38.5-508(0), C.R.S. (2012). The SOMB is comprised of twenty-five individuals with "expertise in adult and juvenile issues relating to persons who commit sex offenses." § 16-11.7-108(1), C.R.S. (2012). Section 16-11.7-108(4)(d), C.R.S. (2012), requires the SOMB to "consult on, approve, and revise, as necessary, the risk assessment screening instrument," which is used to "assist the sentencing court" in determining the likelihood that an adult sex offender will recidivate.⁷ In carrying out this duty, the SOMB "shall consider research on adult sex offender risk assessment" and consider the risk posed by an adult offender who suffers from a psychopathy or personality disorder that makes the offender more likely to engage in sexually violent predatory offenses. Id.

32 The SOMB is required by statute to base its work on research, empirical data, and analysis of evidence-based practices. § 16-11.7-108(4)(e), C.R.S. (2012). This statutory duty is consistent with the general assembly's declaration to create a program that establishes evidence-based standards for the evaluation, identification, treatment, management, and monitoring of sex offenders. § 16-11.7-101(2), C.R.S. (2012). In turn, the general assembly's incorporation of evidence-based standards into the recidivism prong of the SVP designation is consistent with its intent to limit the SVP designation to those offenders who actually "pose a high enough level of risk to the community" to warrant community notification. § 16-13-901.

IL

T33 I now turn to the trial court's use of the results of the risk assessment sereening instrument. I agree with the majority that a trial court is not bound by an evaluator's assessment regarding an offender's risk of recidivism for purposes of the fourth criterion of the SVP designation. To rule otherwise would render the evaluator's determination essentially unreviewable, which is inconsistent with the trial court's duty under section 18-8-414.5(2) to make the ultimate determination whether an offender meets all four statutory criteria to be designated an SVP. That said, the statute constrains the court's discretion insofar as seetion 18-3-414.5(1)(a)(IV) requires the risk of recidivism prong of the SVP designation to be "based upon" the results of a recidivism risk assessment screening instrument developed by the DCJ and SOMB.

1 34 I agree with the majority that "based upon" means "to use particular ideas or facts to make a decision." Maj. op. 114. However, the plain meaning of the phrase "based upon" imposes a substantial and meaningful constraint. Thus, I cannot agree that "based upon" means that a trial court (or this court) can deviate from the screening instrument's assessment and instead rely on whatever factors that particular court deems "highly relevant" in determining risk of recidivism. See id. 1 20.

135 Had the general assembly intended for trial courts to base the risk of recidivism determination under section 18-3-414.5(1)(a)(IV) on other factors in addition to the risk assessment, it easily could have so provided. - Seq, eg., § 17-22.5-404(4)(a), C.RS. (2012) (requiring the state parole board to consider the "totality of cireum-stances" in deciding whether to release parolees, including, inter alia, "the actuarial risk of reoffense"). Instead, the plain language of section 18-8-414.5(1)(a)(IV) requires the trial court to determine the offender's likelihood to recidivate by relying on the factors contained within the risk assessment sereening instrument developed by the DCJ and SOME.

T36 As the majority notes, the risk assessment screening instrument is developed "using the most up-to-date sex offender risk assessment research," and evaluators are trained on how to properly score the instrument "to ensure less variation between offenders' scores." Maj. op. 116. By contrast, the court does not undergo any training on scoring the instrument, nor does it consult any sex offender risk assessment research. In short, the trial court is an expert in legal matters, not sexual assault recidivism assessments.

[ 37 Indeed, the majority implies that trial courts are not trained or qualified to assess actuarial risk of recidivism according to the evidence-based sereening instrument; thus, the majority asserts, courts should not res-core the instrument. Maj. op. 116. Yet, the majority fails to explain how a court becomes more, not less, qualified to assess an offender's risk of recidivism by rejecting the instrument altogether and instead deciding for itself which factors "tend to indicate that the offender is likely to recidivate." Id. 17.

138 Trial courts make difficult decisions every day. Not the least of these decisions is the determination whether an offender should be designated a sexually violent predator. Predicting the future risk of a sexual offender is particularly difficult. See R. Karl Hanson & Monique T. Bussigre, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. Consulting & Clinical Psychol. 348 (1998). Although the majority endeavors to predict Allen's future risk independently, see maj. op. 1120-23, the general assembly has unambiguously required the court to determine an offender's risk of recidivism based not on judicial hunch, but instead on the risk assessment screening instrument, which incorporates factors that correlate statistically with recidivism.⁸ Thus, if a trial or appellate court relies on factors that fall outside those identified in the instrument-even those that may appear to the court to be grounded in common sense-such factors may not actually correlate with recidivism.⁹ Such an approach contravenes the general assembly's plain intent that such recidivism determinations be grounded in empirical research and evidence-based practices. It also greatly undermines the legislature's intent to limit the SVP designation only to that subset of high-risk offenders who warrant community notification. § 16-13-901. In my view, the majority's approach is not only destined to result in inconsistencies in SVP designations, but is likely to lead to greater numbers of offenders being designated sexually violent predators because trial courts naturally may be tempted to allow the horrific cireumstances of a particular crime (appropriately considered for purposes of sentencing) to influence their determination of the separate, statutory SVP designation.

139 Certainly, a particular offender who does not meet the criteria in the risk assessment screening instrument may later recidi-vate; but the purpose of the risk assessment screening instrument is not to predict individual behavior. Rather, as the SOMB explains in its handbook, "statistical risk tools predict an individual's membership in a subgroup that is correlated with future offending." Handbook: Sexually Violent Predator Assessment Screening Instrument (SVPA-SI), 37 (August 2010), http://dej.state.co.us/ ors/pdf/docs/Risk%20Assessment/merged %20GVP%20handbook.pdf. However, even where a particular offender does not meet the SVP criteria, the community is hardly left unprotected. First, a trial court has significant discretion in sentencing and may properly weigh the cireumstances of an offender's conduct when crafting a sentence. Thus, in my view, a trial court's concerns regarding a particular offender will be reflected appropriately in the sentence imposed. Accordingly, the fact that a particular offender does not meet the SVP criteria will have little practical impact on community safety where a lengthy sentence renders it unlikely the offender will be released into the community in any event. Moreover, even for those offenders who are released into the community, the Colorado Sex Offender Lifetime Supervision Act provides for intensive supervision. §§ 18-1.3-1001 to -1012, C.R.S. (2012). - Section 18-1.8-1005(2), CRS. (2012), for example, authorizes a parole program that may include "severely restricted activities, daily contact between the sex offender or other person and the community parole officer, monitored curfew, home visitation, employment visitation and monitoring, drug and alcohol screening, treatment referrals and monitoring, including physiological monitoring, and payment of restitution." Finally, section 16-22-108, C.R.S. (2012), requires offenders to register with local law enforcement. -In short, I do not find it nee-essary or appropriate to give trial courts virtually unfettered discretion to determine an offender's risk of recidivism under section 18-3-414.5(1)(a)(IV) contrary to legislative intent.

140 Nonetheless, I concur in the judgment here because I believe the trial court in Allen's case did not err in designating Allen as an SVP. It is squarely within the traditional province of the court to assess the reliability of the evaluator in his or her scoring of the instrument, to question whether the evaluator made the recommendation based on sufficient evidence, or to determine whether the evaluator erred in applying the instrument's criteria to the facts at hand. In this case, the trial court ultimately based its recidivism determination on the factors contained in the risk assessment screening instrument. To the extent the trial court rejected the results of the instrument, it questioned the evaluator and catalogued, on the record, the ways in which it found that the evaluator had erred in filling out the instrument. The trial court made specific findings that contradicted the evaluator's assessment. - Therefore, even though the trial court disagreed with the SOMB evaluator's assessment, the court still made its ultimate determination based on the evidence-based standards provided to it by the DCJ and SOMB. Accordingly, I concur in the judgment.

5 . The majority concludes that, unlike a criminal sentence, an SVP designation is not punishment. Maj. op. 17 (citing People v. Stead, 66 P.3d 117, 123 (Colo.App.2002); Jamison v. People, 988 P.2d 177, 180 (Colo.App.1999)). I do not necessarily disagree with this statement; however, because the issue was not squarely raised, I would simply assume, without deciding, that an SVP designation is not criminal punishment.

6 . By comparison, "unlawful sexual behavior" is more broadly defined to include relatively passive behaviors, such as indecent exposure. See § 16-22-102(9), CRS. (2012) cf§ 16-22-103(2), C.R.S. (2012) (requiring any person convicted of a crime the underlying factual basis of which involved "unlawful sexual behavior" to register as a sex offender).

7 . I agree with the majority that although the SOMB and DCJ have created an instrument that purports to interpret the relationship criterion of the SVP designation in - section - 18-3-414.5(1)(a)(III), the statutory authority for the instrument under section 18-3-414.5 is limited to assisting the court in assessing the risk that the offender will commit additional predatory sexual offenses in the future. See maj. op. 19; § 18-3-414.5(1)(a)(IV). It is the province of the court, not the SOMB, to interpret the language of section 18-3-414.5, including the term "stranger" and the phrase "established or promoted a relationship primarily for the purpose of sexual victimization" in section 18-3-414.5(1)(a)(II1).

8 . The risk assessment screening instrument is an evolving one; the SOMB periodically revises the instrument to accommodate the most up-to-date research. See § 16-11.7-103(4)(d). Contrary to the majority's assertion, "dynamic factors" refer to variables that tend to change over time, such as motivation, denial, or willingness to change. Kim English, Paul Retzlaff & Dennis Kleinsasser, The Colorado Sex Offender Risk Scale, 11 J. of Child Sexual Abuse 77, 78 (2002), available at http://dej.state.co.us/ors/pdf/Published.Research. Articles/The_Colorado_Sex_Offender_Risk_Scale. pdf. Although it is true that the current version of the screening instrument does not contain "dynamic factors," it does contain factors pertaining to the actual crime. See maj. op. 110 n.2.

9 . Scientific studies show that actuarial risk predicts offenders' future behavior far better than the professional judgment of any individual, whether psychologist, corrections officer, or trial court judge. See generally Don M. Gottfredson, Nat'l Inst. of Justice, Effects of Judges' Sentencing Decisions on Criminal Careers 11 (Nov. 1999), available - at - http:/www.ncirs.gov/pdffiles1/nij/ 178889.pdf; see also PEW Ctr. on the States, Arming the Courts with Research, Public Safety Policy Brief 3 (May 2009), available at http:// www.colorado.gov/ccijjdir/Resources/Resources/ Ref/PEW_ArmingTheCourtWithResearch.pdf ("When 'validated' ... [actuarial risk assessment tools] are much more accurate than human judgment in predicting the risk of an offender's recidivism.").