v. Williamson

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 3, 2021
2021COA77
No. 19CA0879, People v. Williamson — Crimes — Unlawful
Sexual Behavior — Sexually Violent Predators — Sexually
Violent Predator Assessment Screening Instrument
A division of the court of appeals considers whether, when
deciding to designate a defendant a sexually violent predator, a
district court errs by deferring to an evaluator’s assessment that,
based on the results of Section 3A of the 2018 Sexually Violent
Predator Assessment Screening Instrument (SVPASI), a defendant is
likely to recidivate. See § 18-3-414.5(1)(a)(IV), (2), C.R.S. 2020. The
division concludes that a district court may properly rely on such
an assessment because, before approving Section 3A, the Sex
Offender Management Board considered current research and
established standards that are evidence based. Thus, inclusion of
Section 3A in the SVPASI does not violate the requirements of the
enabling statutes. See §§ 16-11.7-101(2), -103(4)(d), C.R.S. 2020.
COLORADO COURT OF APPEALS 2021COA77
Court of Appeals No. 19CA0879
Jefferson County District Court No. 18CR3429
Honorable Diego G. Hunt, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Todd Louis Williamson,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE RICHMAN
Berger and Welling, JJ., concur
Announced June 3, 2021
Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Todd Louis Williamson, appeals his designation as
a sexually violent predator (SVP) in connection with a judgment of
conviction for attempted sexual assault on a child. We reject his
challenges to the SVP designation and affirm the district court’s
order designating him an SVP.
I. Background
¶2 The following facts are drawn from the presentence report and
supporting documents, as well as the affidavit supporting the arrest
warrant. Williamson has agreed to the facts stated in the affidavit.
¶3 In 2016, a woman Williamson was dating reviewed the
contents of one of his social media accounts. The account
contained multiple videos depicting sexual assaults of children.
Upon further investigation, police discovered that Williamson
possessed hundreds of videos and images of child pornography.
The People charged Williamson with, among other things, sexual
exploitation of a child, a class 4 felony. § 18-6-403(3)(b.5), (5)(b)(II),
C.R.S. 2020. He pleaded guilty to that charge and was given a five-
year probationary sentence.
¶4 In 2018, while on probation, Williamson communicated in a
sexually explicit manner, via social media, with a girl who told him
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she was fourteen years old. Unbeknownst to him, he was actually
communicating with an undercover police detective. Based on
these conversations, and an explicit photo he sent to the purported
victim, Williamson was charged with internet sexual exploitation
and internet luring of a child. §§ 18-3-306(1), (3), 18-3-405.4(1),
C.R.S. 2020. He ultimately pleaded guilty to an added count,
attempted sexual assault on a child, a class 5 felony. §§ 18-2-101,
18-3-405(1), C.R.S. 2020. The prosecution dismissed the remaining
charges pursuant to a plea agreement.
¶5 Because Williamson was convicted of a sexual offense,
Colorado’s SVP statute, § 18-3-414.5, C.R.S. 2020, required the
district court to determine at sentencing whether he should be
designated an SVP. As relevant here, under the statute, a
defendant is an SVP if he (1) is eighteen years of age or older as of
the date of the offense; (2) has been convicted of certain enumerated
sexual offenses; (3) has committed an enumerated offense against a
stranger or a person with whom he “established or promoted a
relationship primarily for the purpose of sexual victimization”; and
(4) according to the results of a “risk assessment screening
instrument . . . approved by the sex offender management board
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established pursuant to section 16-11.7-103(1), [C.R.S. 2020,] is
likely to subsequently commit one or more of the [enumerated
sexual offenses]” against a similarly situated victim.
§ 18-3-414.5(1)(a)(I)-(IV).
¶6 In evaluating whether Williamson should be designated an
SVP, the district court considered, among other items, the results of
a Sexually Violent Predator Assessment Screening Instrument
(SVPASI) that was administered by a trained evaluator and
approved by the Sex Offender Management Board (SOMB). The
SVPASI contained three parts. If a defendant met the criteria under
any part, SVP designation was recommended.
¶7 Under Part 3A, the evaluator was instructed to recommend
SVP designation if a defendant had previously been convicted of at
least one felony or two misdemeanor “sex offenses” as that term is
defined in section 16-11.7-102(3), C.R.S. 2020. Part 3B contained
a Sex Offender Risk Scale (SORS), an actuarial risk assessment
scale to be completed by the evaluator. The SORS placed certain
risk factors into an equation — namely, the defendant’s age at the
time of his earliest sex offense and the number of prior criminal
cases and probation revocations on his record. These factors were
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weighted and then the equation was solved, yielding a numeric
score. The evaluator was to recommend SVP designation only if a
defendant scored 22 or above on the SORS. Part 3C measured
whether a defendant met certain criteria indicating he suffered from
psychopathy or a personality disorder, factors that also triggered an
SVP recommendation.1
¶8 Due to Williamson’s prior sex offense conviction, he met the
criteria for designation under Part 3A of the SVPASI, and the
evaluator recommended that the court designate him an SVP on
this basis. Although the screening form instructed the evaluator
not to fill out Part 3B if a defendant met the criteria of Part 3A, the
evaluator did so. Williamson scored only a -3.060 on Part 3B, well
below the threshold for designation. Further, Williamson did not
meet the criteria for designation under Part 3C.
¶9 Deferring in part to the evaluator’s recommendation under
Part 3A, the district court designated Williamson an SVP.
Williamson objected to the designation, and the court invited him to
1 Williamson was evaluated under the 2018 SVPASI. The current
SVPASI retains this format, and categorizes prior sex offenses as a
standalone factor that may trigger SVP designation.
4
file a motion for reconsideration. Several months later, he did so.
In his motion, he challenged the court’s deference to the evaluator’s
recommendation in Part 3A of the SVPASI, arguing that his single
prior conviction for a sex offense is an unreliable measure of his
tendency to recidivate, especially where he received a low score on
Part 3B of the SVPASI. The court denied the motion, noting that “it
is not within the purview of this court to determine the validity of
the methodology of the risk assessment . . . .”
¶ 10 On appeal, Williamson renews the arguments he made below.
He asserts that the district court erred, and violated his right to due
process, by relying on Part 3A of the SVPASI. He further argues
that even if the district court’s designation was proper, SVP
designation violates constitutional prohibitions on the imposition of
cruel and unusual punishments. See U.S. Const. amend. VIII;
Colo. Const. art II, § 20.
II. The Court Did Not Err By Relying on the Evaluator’s
Recommendation in Part 3A of the SVPASI
A. The SVP Statute
¶ 11 Williamson’s challenge to the statutory validity of Part 3A of
the SVPASI requires that we construe the SVP statute. The proper
5
interpretation of a statute is a legal question that we review de
novo. Allen v. People, 2013 CO 44, ¶ 4.
¶ 12 When we construe a statute, we focus on its plain language.
People v. Gallegos, 2013 CO 45, ¶ 7. We attempt to discern and
give effect to the General Assembly’s intent. Id. In doing so, we
must be careful not to impute new meaning to the language. People
v. Gholston, 26 P.3d 1, 7 (Colo. App. 2000). Whenever possible, we
must give all the language in the statute “consistent, harmonious,
and sensible effect.” Gallegos, ¶ 7 (quoting People v. Banks, 9 P.3d
1125, 1127 (Colo. 2000)). Accordingly, we read statutory words and
phrases in their full context and afford them their common
meaning. Id. We avoid statutory constructions that conflict with
the legislative intent. People v. Brosh, 251 P.3d 456, 459 (Colo.
App. 2010).
¶ 13 The SVP statute is part of an enactment by which the General
Assembly sought to “create a program that establishes evidence-
based standards for the evaluation, identification, treatment,
management, and monitoring” of sex offenders to prevent them
from reoffending and to protect current and potential victims.
§ 16-11.7-101(2), C.R.S. 2020 (emphasis added). To that end, the
6
General Assembly created the SOMB and tasked it with consulting
on, approving, and, as necessary, revising a “risk assessment
screening instrument” to “assist the sentencing court in
determining the likelihood that an adult sex offender will”
recidivate. § 16-11.7-103(4)(d). When carrying out its duties, the
SOMB is statutorily required to “consider research on adult sex
offender risk assessment” and the risk posed by defendants that
suffer from psychopathy or a personality disorder. Id. (emphasis
added); Allen, ¶ 32 (Márquez, J., concurring in the judgment). The
incorporation of evidence-based standards into the recidivism prong
of the SVP designation standard demonstrates the General
Assembly’s intent to limit SVP designations only to those
defendants that pose a high level of risk to the community. Allen,
¶ 32 (Márquez, J., concurring in the judgment).
¶ 14 The statute instructs courts considering an SVP designation to
“make specific findings of fact and enter an order concerning”
whether a defendant is an SVP based on the results of the SOMB
assessment instrument. § 18-3-414.5(2). While the district court
makes the ultimate SVP designation, our supreme court has stated
that the results of the assessment instrument “should serve as the
7
primary aid” to the district court and has instructed courts to give
substantial deference to the recommendation in the SVPASI. Allen,
¶ 15. If a court chooses to deviate from the SVPASI, it must make
specific findings to justify its deviation. Id. It should not re-score
the instrument. Id. at ¶ 16. Moreover, even if the court does not
deviate from the SVPASI’s recommendation, it should make findings
concerning each of the four criteria set forth in section
18-3-414.5(1)(a), which lays out the standard for SVP designation.
People v. Loyas, 259 P.3d 505, 512 (Colo. App. 2010), overruled in
part on other grounds by Page v. People, 2017 CO 88.
¶ 15 In light of this statutory language as it has been construed by
Colorado courts, Williamson argues that any valid SOMB risk
assessment screening instrument must (1) assist the sentencing
court to determine the likelihood that a defendant will recidivate; (2)
consider research on adult sex offender risk assessment; and (3)
establish evidence-based standards for evaluation and identification
of SVPs. However, according to Williamson, neither the SVPASI nor
the handbook used by evaluators to administer it asserts or even
strongly implies that the standard used in Part 3A is a research-
and evidence-based metric that assists the court with its recidivism
8
analysis. Accordingly, Williamson argues, Part 3A is a statutorily
invalid method of assessing the likelihood of recidivism and the
court erred in relying on it instead of the actuarial assessment
contained in Part 3B.
¶ 16 Although this contention is not without some merit, and it
would have been preferable for the SOMB to explicitly set forth the
evidence it relied upon with respect to Part 3A, we decline
Williamson’s invitation to engraft the SVP statute with a
requirement that each part of the SVPASI, or the handbook
addressing that part, must specifically identify the research and
evidence upon which it is based. The plain language of the SVP
statute simply does not indicate that there is any such requirement.
Gholston, 26 P.3d at 7 (noting that we must not impute new
meaning to statutory language). The other relevant statutes require
only that the SOMB consider research regarding risk assessment
and that it establish standards that are evidence based before it
approves the SVPASI. §§ 16-11.7-101(2), -103(4)(d). Further,
nothing in section 18-3-414.5(1)(a) or sections 16-11.7-101(2)
and -103(4)(d) indicates that the legislature meant to require the
9
SOMB to limit the screening instrument to a scored component like
the SORS.
¶ 17 Further, it is evident that the SOMB considered relevant
research and established standards based on that research when it
created and approved the SVPASI. Williamson was evaluated using
the SOMB’s 2018 SVPASI Handbook, https://perma.cc/6689-LUYA.
According to the handbook, the SVPASI administered to Williamson
“identifies those individuals most likely to commit a subsequent
sexual or violent offense.” Id. at 1. Logically, this pronouncement
includes Part 3A.
¶ 18 The handbook also describes the research study conducted in
connection with Part 3B, the SORS. It describes a study of 4,698
adults convicted or given a deferred judgment for an SVP-eligible
crime in Colorado during a certain period. It notes that “[e]xcluded
from [the study] were those individuals with one prior adult felony
sex offense conviction or two misdemeanor sex offense convictions
because these individuals will quality for SVP eligibility [under Part
3A].” Id. at 16-17. It further notes, however, that “actuarial
methods are limited because offenders in any study group may vary
on factors not measured” and “[t]he research literature is quite clear
10
that criminal history,” among other factors, is a “relevant and
statistically powerful” indicator of risk. Id. at 19. While the
handbook discusses this evidence in support of the SORS, the
research nonetheless supports the SOMB’s decision to include prior
sexual offense criteria in the SVPASI. These statements show that
the SOMB considered research on the significance of criminal
history before deciding to place separate emphasis on prior sex
offenses.
¶ 19 Moreover, as Williamson points out, when the SOMB voted to
use the applicable version of the SVPASI, it extensively discussed
the wisdom of separating the assessment of defendants with prior
sex offenses from the assessment of those who may meet other risk
criteria under the SORS. According to the minutes of the first
meeting where the significance of Part 3A was discussed, SOMB
members explicitly considered whether keeping Part 3A would make
the SVPASI more empirically validated and would be a valid
indicator of risk. SOMB, Minutes of Meeting (Sept. 16, 2016),
https://perma.cc/TYB5-Y8NE. At the following meeting, several
board members stated that after further investigation, they
concluded that sex offense history “is one of the strongest risk
11
factors there is” and is a “clear” or “key” indicator of risk. Another
board member noted that Part 3A is a policy component of the
SVPASI “based on research that will affect the actuarial scale” and
that if Part 3A was included in the actuarial assessment in Part 3B,
the SVPASI “will not capture the data in the same way as 3A.”
SOMB, Minutes of Meeting 3 (Oct. 21, 2016),
https://perma.cc/UE2Y-GQYJ. Thus, based on the handbook and
the SOMB meeting minutes, it is apparent that the SOMB
considered current research when creating and approving the
SVPASI, and that it used that research to craft evidence-based
standards.
¶ 20 We conclude that the SVPASI met the relevant statutory
requirements and the district court did not err by deferring to the
evaluator’s recommendation under Part 3A of the SVPASI.
B. Due Process
¶ 21 Williamson further contends that the district court’s reliance
on Part 3A of the SVPASI violated his right to due process.
Although the contours of Williamson’s due process argument are
not entirely clear, we understand his argument to be that an SVP
designation must be based on reliable, nonspeculative evidence,
12
and no such evidence was presented here. People v. Tuffo, 209 P.3d
1226, 1231 (Colo. App. 2009). According to Williamson, the court’s
only finding with respect to his tendency to recidivate was that he
had a prior sex offense conviction. He asserts that this evidence
has only speculative value.
¶ 22 Whether the district court correctly applied the statute and
made the proper findings when it designated Williamson an SVP are
mixed questions of fact and law. Allen, ¶ 4. We defer to the court’s
factual findings if they are supported by the record but consider
any legal conclusions de novo. Id.; People v. Salas, 2017 COA 63,
¶ 48.
¶ 23 As we noted above, supra Part II.A, it is within the SOMB’s
purview to determine which risk factors will be included in the
SVPASI, and what weight each factor will be given, as long as the
SOMB has considered research and incorporated evidence-based
standards. § 16-11.7-103(4)(d). For that reason, we do not deem a
prior sex offense conviction to be too speculative to support the
district court’s findings and conclusions regarding potential
recidivism.
13
¶ 24 Further, the record does not support the assertion that the
district court found only that Williamson had a prior conviction for
a sex offense. At the sentencing hearing, the judge made the
following findings and conclusions based on the presentence report,
which included both the results of the SVPASI and a Sex Offense
Specific Evaluation: (1) the crime at issue included aggravated
circumstances because it involved a “second felony for a second sex
offense which [Williamson] committed while he was on the highest
level of supervision” in his prior case; (2) consequently, he “was
found to have a high degree of risk for sexual re-offense”; (3) given
the “risk to the community and the risk of re-offense,” Williamson
would not be given another probationary sentence; (4) Williamson
met the SVP statute’s criteria because he was over age eighteen at
the time he committed the enumerated offense, the victim was a
stranger, and he had a prior sex offense conviction; and (5) he
should be designated an SVP. Thus, in addition to finding that
Williamson had a prior sex offense conviction, the court specifically
found that he was a risk to the community and would likely
reoffend.
14
¶ 25 A court does not violate due process principles when it adopts
the findings of the presentence report, including the
recommendations of the SVPASI. People v. Torrez, 2013 COA 37,
¶ 83; People v. Buerge, 240 P.3d 363, 370 (Colo. App. 2009). This is
particularly so where the facts relied on, including Williamson’s
prior conviction, are undisputed. Tuffo, 209 P.3d at 1231 (noting
that a sentencing court may rely on uncontroverted facts in the
presentence report). We discern no due process violation.
III. SVP Designation Is Not Cruel and Unusual Punishment
¶ 26 Finally, Williamson argues that his SVP designation
constitutes a cruel and unusual punishment, and it is therefore
prohibited under the United States and Colorado Constitutions. We
are not persuaded.
¶ 27 Because Williamson raises a question of constitutional law, we
review his challenge to the SVP statute de novo. People v.
McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008).
¶ 28 Our supreme court has stated that “[u]nlike a criminal
sentence, the SVP designation is not punishment.” Allen, ¶ 7.
Instead, its purpose is to protect the community through
notification and registration requirements. § 16-22-108(1)(b), (d)(I),
15
C.R.S. 2020; §§ 16-13-901 to -906, C.R.S. 2020; Allen, ¶ 7; Tuffo,
209 P.3d at 1231 (noting that the “SVP statute is protective rather
than punitive”). Because an SVP designation is not a punishment,
constitutional provisions prohibiting cruel and unusual
punishments do not apply. See, e.g., People in Interest of J.O., 2015
COA 119, ¶¶ 21, 30; People v. Rowland, 207 P.3d 890, 892 (Colo.
App. 2009) (“Like numerous other courts, we conclude that, under
the [relevant] factors, [the defendant] has not been subjected to
additional punishment.”); People v. Stead, 66 P.3d 117, 120 (Colo.
App. 2002) (holding that because the lifetime registration and
internet posting requirements associated with SVP designation are
not punishments, the constitutional guarantee of trial by jury does
not apply to SVP designation), overruled in part on other grounds by
Candelaria v. People, 2013 CO 47. Accordingly, Williamson’s SVP
designation did not violate his constitutional right to be free from
cruel and unusual punishments.
IV. Conclusion
¶ 29 The district court’s order designating Williamson an SVP is
affirmed.
JUDGE BERGER and JUDGE WELLING concur.
16