Allen v. People

Justice RICE

delivered the Opinion of the Court.

{ 1 This case arises out of Petitioner Brandon David Allen's designation as a sexually violent predator ("SVP"). The court of appeals affirmed the trial court's SVP designation and held that the trial court could designate an offender as an SVP even if the offender is deemed unlikely to recidivate based on his low seore on the Sex Offender Management Board's ("SOMB") risk assessment screening instrument (the "Sereening Instrument"). After considering section 18-8-414.5(1)(a)(IV), C.R.S. (2012), we hold that the trial court makes the ultimate SVP designation, but should give substantial deference to the scored Sereening Instrument. A trial court that deviates from the results of the scored Screening Instrument must make specific findings on the record to demonstrate the necessity of the deviation. We apply our interpretation of the recidivism criterion to the facts of this case and hold that the court of appeals properly upheld Allen's SVP designation.

I. Facts and Procedural History

2 In June 2006, a masked intruder broke into the victim's home in Colorado Springs, placed a pillow over her face, grabbed her by the throat, threatened to kill her, and repeatedly raped her over the course of several hours. On October 18, 2007, the victim's neighbor, Allen, pleaded guilty to first-degree sexual assault, second-degree burglary, and second-degree assault in connection with the attack. The trial court sentenced Allen to twenty years to life in prison for the first-degree sexual assault to run consecutively to two concurrent five-year terms for the see-ond-degree burglary and second-degree assault convictions. Given his conviction for first-degree sexual assault, a SOMB evaluator administered the Sereening Instrument. The evaluator scored Allen's Screening Instrument and provided that seore to the trial court. Allen did not score high enough on the Screening Instrument to meet the recidivism criterion of the SVP statute.¹ The trial court, however, disagreed with Allen's seore on the Screening Instrument. The trial court re-scored Allen's Screening Instrument, and then, based on the revised score, found that Allen met the recidivism criterion of the SVP statute. Because Allen also met the other three SVP criteria, the trial court designated Allen as an SVP. Allen appealed his SVP designation to the court of appeals.

T 3 The court of appeals affirmed the trial court's SVP designation. People v. Allen, No. 08CA2098, 310 P.3d 83, 85-86, at 6, 2010 WL 4782249 (Colo.App. Nov. 24, 2010) (selected for official publication). Without explicitly resolving how a trial court should use the scored Sereening Instrument, the court of appeals held that the scored Screening Instrument merely aids the trial court in determining whether an offender meets the recidivism criterion. Id. The court of appeals noted that holding "otherwise would effectively cede the court's sentencing discretion to the [scored Screening Instrument] and render the [scored Screening Instrument] essentially unreviewable." Id. Allen petitioned this Court for certiorari review of the court of appeals' decision. We granted certiorari to determine whether an offender may be designated as an SVP contrary to his score on the Sereening Instrument.

II. Standard of Review

T4 We interpret the SVP statute de novo. See Clyncke v. Waneka, 157 P.3d 1072, 1076 (Colo.2007). We then review the trial court's SVP designation-a mixed question of law and fact-by deferring to the trial court's factual findings when they are supported by the record, and reviewing de novo the trial court's legal conclusions regarding whether an offender should be designated as an SVP. People v. Cook, 197 P.3d 269, 280 (Colo.App.2008); People v. Tixier, 207 P.3d 844, 849 (Colo.App.2008).

III. Analysis

15 To start, we discuss the unique nature of the SVP designation. Next, we describe the SOMB's role in developing the Sereening Instrument, and then deseribe how the SOMB-trained evaluator scores the Sereen-ing Instrument in each case. Finally, we hold that under section 18-3-414.5(1)(a)(IV), the trial court makes the ultimate SVP designation, but should give substantial deference to the scored Sereening Instrument. In light of our understanding of section 18-3-414.5(1)(a)(IV), we also hold that a trial court that deviates from the results of the scored Sereening Instrument must make specific findings on the record to demonstrate the necessity of the deviation.

A. SVP Designation Process

T6 We first generally describe the nature of the SVP designation. The trial court designates an offender as an SVP when the offender: (1) was eighteen years of age or older as of the date of the offense; (2) was convicted of an enumerated sexual offense; (8) committed the offense against a victim who was a stranger or was a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) is likely to recidi-vate. See § 18-8-414.5(1)(a)(D)-(IV).

17 Unlike a criminal sentence, the SVP designation is not punishment. See People v. Stead, 66 P.3d 117, 128 (Colo.App.2002) (holding that the internet registration required for SVP designation is not punishment); see also Jamison v. People, 988 P.2d 177, 180 (Colo.App.1999) (holding that sex offender registration is not punishment). Instead, the SVP designation's "stated purpose is to protect the community." People v. Rowland, 207 P.3d 890, 894 (Colo.App.2009). Thus, a trial court's decision to designate an offender as an SVP is legally and practically distinct from its sentencing function. And, though the SVP statute is housed in the criminal code, the designation is met with a civil burden of proof. See § 18-3-414.5(1)(a)(IV). A trial court's finding that an offender is an SVP, then, is most aceu-rately described as a "designation," unique to the SVP context. Consistent with the unique nature of the SVP designation, the SOMB and the trial court must follow a unique process to designate an offender as an SVP.

I 8 The SOMB's first role in this process is to develop the Screening Instrument. When it created the SOMB, "[the General Assembly recognized the necessity of ... providing for the comprehensive evaluation of sex offenders subject to the supervision of the criminal justice system and created a program that standardizes such evaluation." People v. Brosh, 251 P.3d 456, 459-60 (Colo.App.2010). To that end, the SOMB creates a Screening Instrument which utilizes evidence-based standards for the evaluation, identification, treatment, management, and monitoring of sex offenders. See § 16-11.7-101(2), C.R.S. (2012) (declaring the General Assembly's intent to "create a program that establishes evidence-based standards for the evaluation, identification, treatment, management, and monitoring of adult sex offenders"). Ultimately, then, the SOMB-work-ing with the division of criminal justice to employ the most current sex offender risk assessment research available-consults on, approves, and revises the Screening Instrument as necessary to assist the trial courts in determining the likelihood that an adult sex offender will recidivate. § 16-11.7-108(4)(d), C.R.S. (2012).

T9 When an offender is convicted of an enumerated offense, see§ 18-3-414.5(1)(a)(II), a SOMB-trained evaluator administers the Sereening Instrument. The evaluator reviews numerous relevant data sources including, but not limited to, the record of the offender's criminal history, the pre-sentence investigation report, and the police report from the underlying charges during the seoring. See SOMB Handbook: Sexually - Violent - Predator - Assessment Screening Instrument for Felons, Background and Instruction, 68 (June 2003), http://dej.state.co.us/ors/pdf/docs/Final %20SVP pdf (hereinafter SOMB Handbook). Although the SVP statute only expressly directs the SOMB to address the recidivism criterion in the Sereening Instrument, see § 18-3-414.5(1)(a)[IV), the SOMB developed the Sereening Instrument in such a way that requires the evaluator to confirm that the offender has satisfied the first three criteria of the SVP statute before reaching the recidivism analysis. SOMB Handbook at 67-70 (identifying the four SVP designation criteria).

110 After the evaluator assesses the offender's satisfaction of the first three SVP criteria, the Screening Instrument scoring procedure turns to the recidivism criterion. The June 2003 Sereening Instrument used to evaluate Allen provided that an offender was likely to recidivate if he met at least four out of the ten descriptors contained in the "sex offender risk scale" ("SORS") portion of the Screening Instrument. SOMB Handbook at 72-78. Six of those 2008 SORS descriptors pertained to the offender's background. See id. For example, one SORS descriptor asked whether "[the offender was employed less than full time at the time of the arrest." Id. at 72. The remaining four descriptors concerned the offender's crime, the degree to which the offender accepted responsibility for his conduct, and, more generally, the offender's sexual deviancy. Id.² Additionally, though not considered by the evaluator in Allen's case, the June 2003 Sereening Instrument provided an alternate method to determine an offender's likelihood to recidivate: his "mental abnormality," as derived from a series of mental health evaluations. Id. at 78. The Screening Instrument scoring component of the SVP designation process ends when the evaluator finishes scoring the recidivism portion of the Sereening Instrument.

111 After scoring, the evaluator submits the scored Screening Instrument to the trial court to "assist the [trial court] in determining the likelihood that an adult sex offender" will recidivate. $ 16-11.7-103(4)(d). In addition to assessing whether the offender has satisfied the three criteria of the SVP statute that are not at issue in this case, the trial court must also analyze whether the offender has satisfied the recidivism criterion "based upon the results of [the scored Sereening Instrument]," § 18-8-414.5(1)(a)(IV), to designate the offender as an SVP. We now discuss a question of first impression before this Court: Whether the recidivism criterion requires the trial court to defer to the scored Screening Instrument's assessment of the offender's likelihood to recidivate, or if the trial court ultimately makes the recidivism determination by way of its own independent analysis.

B. The Trial Court Should Substantially Defer to the Scored Sereening Instrument

112 We review the plain language of the recidivism criterion of the SVP statute and hold that the trial court ultimately makes the SVP designation, but should give substantial deference to the scored Sereening Instrument. To that end, a trial court that deviates from the results of the scored Sereening Instrument may only do so after making specific findings justifying the deviation.

{13 To qualify for SVP designation, an offender must meet four criteria:

I. [The offender] 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. [the offender has been] convicted on or after July 1, 1999, of one of [the enumerated offenses,] or of an attempt, solicitation, or conspiracy to commit [one of the enumerated offenses];

[the offender's] 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 IIL

[the offender], based upon the results of [the scored Sereening Instrument] . is likely to subsequently commit [an enumerated offense against a stranger or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization.]

§ 18-8-414.5(1)(a)(D-(IV).

1 14 An offender meets the fourth, recidivism criterion in the SVP statute where, "based upon the results of" the scored Screening Instrument, he is deemed "likely to subsequently commit" a sexually violent crime in the manner described in the relationship - criterion. § 18-3-414.5(1)(a)(IV) (emphasis added). The criminal code does not define "based upon," thus, we examine "its commonly accepted meaning." Fogg v. Macaluso, 892 P.2d 271, 274 (Colo.1995); see Tidwell ex rel. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 82 (Colo.2003). Webster's New College Dictionary defines "based" as "to make or form a base or foundation for." Webster's New College Dictionary 119 (2005). The MacMillan English Dictionary provides an even more apt definition for our inquiry, defining "based on"³ as "to use particular ideas or facts to make a decision." MacMillan Dictionary (Ist ed. 2002). Typically, then, the trial court should use the scored Screening Instrument to make a decision regarding an offender's SVP designation; the scored Sereening Instrument will accordingly serve as the foundation for a trial court's SVP designation. Thus, reading "based upon" with its commonly accepted meaning, the recidivism criterion of section 18-8-414.5(1)(a)(IV) directs the trial court to defer to the scored Sereening Instrument to make a decision regarding an offender's likelihood to subsequently commit a sexually violent crime against a stranger or person with whom the offender has established or promoted a relationship primarily for the purpose of sexual victimization.

T15 The statute describing the SOMB's duties provides contextual support for our interpretation of "based upon." See § 16-11.7-108(4)(d). That provision states that the Screening Instrument is designed to "assist the sentencing court in determining the likelihood that an adult sex offender" will recidivate. Id. "Assist" is commonly understood as "to give help to; aid." Webster's New College Dictionary 85 (2005). Accordingly, the results of the scored Screening Instrument should serve as the primary aid in the trial court's SVP designation, and a trial court that does not follow the scored Sereening - Instrument's - recommendation should make specific record findings supporting its deviation.

116 Moreover, the trial court should not re-score the Screening Instrument. The SOMB develops the Sereening Instrument using the most up-to-date sex offender risk assessment research and trains evaluators on how to properly seore the Sereening Instrument to ensure less variation between offenders' scores. Rather, consistent with our holding, the trial court should substantially defer to the scored Sereening Instrument's conclusions when determining whether to designate an offender as an SVP.

117 It follows that a trial court that deviates from the results of the scored Sereening Instrument must make specific findings on the record to demonstrate the necessity of the deviation. Thus, the trial court's ultimate SVP designation must be based upon specific facts in the record that tend to indicate that the offender is likely to recidivate.

IV. Application

118 Having determined the appropriate role for the Screening Instrument and the trial court in the SVP designation process, we now turn to the issue of Allen's SVP designation. We agree with the court of appeals' affirmation of the trial court's determination that Allen was likely to recidivate and therefore was appropriately designated as an SVP. We defer to the trial court's factual findings, but review the defendant's SVP designation de novo. Cook, 197 P.8d at 280.

19 Allen meets the first three criteria in the SVP statute, and does not contend otherwise. We therefore begin our analysis with the Screening Instrument scored by the SOMB evaluator to determine whether Allen meets the recidivism criterion. Allen only scored one out of ten on the Sereening Instrument. Specifically, - the - evaluator checked the "admission of offense" or "accountability" risk descriptor box because, despite his guilty plea, Allen still denied sexually assaulting the victim. By the terms of the scored Screening Instrument, then, Allen is not considered likely to recidivate. Our independent review of the record, however, leads us to hold that Allen should be designated as an SVP.

T 20 Because our SVP designation deviates from the results of Allen's scored Sereening Instrument, we review the record and designate Allen as an SVP. The record includes several facts this Court finds highly relevant. Notably, the record indicates that Allen like-ly had "deviant sexual fantasies." Allen's deviant sexual fantasies, in light of his sexual assault conviction, suggest to this Court a greater willingness to engage in the predatory sexual crimes enumerated in the SVP statute. Allen also "has difficulty with relationships." This lack of stability in his personal life and inability to develop meaningful relationships suggests he may be an increased danger to recidivate if he is ever released from custody.

{21 Allen's behavior after the sexual assault also belies Allen's claim that he should not be designated as an SVP. After the assault, Allen threatened to kill the victim to avoid punishment. - And, after pleading guilty, Allen vacillated between denying committing the crime and blaming his conduct on anti-malaria medicine from his time in the army. Allen's behavior after the assault is sufficiently threatening and detached to suggest that Allen is likely to recidivate.

122 Two additional facts from the record indicate that Allen is likely to commit another crime against a stranger. First, Allen admitted that when he was l4-years-old a woman Allen barely knew obtained a restraining order against him because he repeatedly harassed her. More recently, a different woman claimed that Allen often touched her, directed inappropriate sexual comments towards her, and that she once saw Allen running away from her house after hearing a window in her house break. She also sought and obtained a restraining order against Allen.

1 23 While Allen's low seore on the Sereen-ing Instrument would typically control his SVP designation, our independent review of the record reveals that the trial court ultimately reached the correct conclusion.⁴ Allen meets the recidivism criterion of the SVP statute. He is likely to commit an enumerated sexually violent crime against a stranger or a person with whom he established or promoted a relationship primarily for the purpose of sexual victimization. Allen meets the remaining statutory criteria under seetion 18-3-414.5(1)(a); therefore, we affirm the court of appeals' judgment and uphold Allen's SVP designation.

V. Conclusion

[ 24 We hold that the trial court ultimately determines whether an offender is likely to recidivate, but should substantially defer to the results of the scored Sereening Instrument. Further, we hold that the trial court has the authority to make the final SVP designation. A trial court that deviates from the results of the scored Sereening Instrument must make specific findings on the record to demonstrate the necessity of the offender's SVP designation.

25 In this case, Allen, an offender who pleaded guilty to a brutal sexual assault and whose conduct before and after the crime indicated likelihood to recidivate, was properly designated as an SVP despite his low score on the Screening Instrument. We therefore affirm the court of appeals' judgment.

Justice MARQUEZ concurring in the judgment. Justice COATS dissents.

1 . Despite Allen's score, the SOMB evaluator recommended that "given the severity of [Allen's] crime and his inability to remember [the assault], he should receive mental health/sex offense treatment and be monitored as [an SVP.]"

2 . Unlike the June 2003 Screening Instrument, the current Screening Instrument does not include any "dynamic factors," i.e., those factors that consider the actual crime. Instead, the current Screening Instrument considers an offender's historical conduct to determine whether the offender might recidivate.

3 . "On" is generally interchangeable with "upon" and nothing in this context suggests otherwise. See Webster's New College Dictionary 1570 (2005).

4 . Consistent with our holding, however, we disapprove of the trial court's decision to re-score Allen's Screening Instrument.