v. Ehlebracht

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
September 3, 2020
2020COA132
No. 18CA0224, People v. Ehlebracht — Criminal Law —
Sentencing — Colorado Sex Offender Lifetime Supervision Act
of 1998 — Indeterminate Sentence — Probation; Constitutional
Law — Fifth Amendment — Double Jeopardy
A division of the court of appeals decides two issues of first
impression. First, distinguishing Allman v. People, 2019 CO 78, the
division holds that a sentence to prison on one count followed by a
sentence to probation under the Sex Offender Lifetime Supervision
Act for a sex offense in the same case is legal. Second, applying the
Colorado Supreme Court’s reasoning in Waddell v. People, 2020 CO
39, and Yeadon v. People, 2020 CO 38, holds that a sentence that
fails to include statutorily required sex offender, special advocate,
and crime against a child surcharges is illegal, and therefore a trial
court may impose those surcharges after initial sentencing without
violating a defendant’s right to be free from double jeopardy.
COLORADO COURT OF APPEALS 2020COA132
Court of Appeals No. 18CA0224
Boulder County District Court No. 16CR2030
Honorable Bruce Langer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Daniel Ehlebracht,
Defendant-Appellant.
ORDERS AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE J. JONES
Welling and Gomez, JJ., concur
Announced September 3, 2020
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Christopher Daniel Ehlebracht, pleaded guilty to
first degree assault and sexual assault on a child. The district
court sentenced him pursuant to a stipulation in the plea
agreement to twenty years in prison, to be followed by ten years to
life on probation. Ehlebracht challenges the district court’s orders
designating him a sexually violent predator (SVP) and imposing
statutory surcharges after his sentencing. We affirm both the SVP
designation and surcharge orders, and we remand the case for
further proceedings.
¶2 After Ehlebracht appealed, the supreme court decided Allman
v. People, 2019 CO 78, ¶ 40, holding that, under the general
probation statutes, a court may not sentence a defendant to both
prison and probation in a multicount case. That development
caused us to question whether Ehlebracht’s consecutive sentences
to both prison and probation are legal. So, nostra sponte, we
ordered the parties to file supplemental briefs addressing whether
the holding of Allman applies to a consecutive probationary
sentence, like Ehlebracht’s, imposed under section 18-1.3-
1004(2)(a), C.R.S. 2019, of the Sex Offender Lifetime Supervision
Act (SOLSA). The parties contend, and we agree, that because
1
Ehlebracht’s probationary sentence was imposed under SOLSA, a
unique sentencing scheme emphasizing sex offender specific
objectives, Allman doesn’t apply, and Ehlebracht’s consecutive
sentences to prison and probation are authorized by law.
I. Background
¶3 Twenty-nine-year-old Ehlebracht met the fourteen-year-old
victim on a social media application and then took her to his
apartment, where he gave her alcohol and sexually assaulted her.
The People charged him with one count each of sexual assault on a
child with force, enticement of a child, and contributing to the
delinquency of a minor. The People’s complaint also charged
Ehlebracht with a sentence enhancer as a habitual sexual offender
against children.
¶4 Ehlebracht pleaded guilty to added counts of first degree
assault and sexual assault on a child without the use of force, in
return for which the prosecution dismissed the four original
charges. The plea agreement stipulated that Ehlebracht would
receive a twenty-year prison sentence, followed by five years of
parole, for the assault conviction, and a ten-years-to-life probation
sentence for the sexual assault on a child conviction, to be served
2
consecutively to the prison sentence but concurrently with the
parole component of the prison sentence. At the sentencing
hearing, the court sentenced Ehlebracht in accordance with the
plea agreement and designated him an SVP pursuant to section 18-
3-414.5, C.R.S. 2019.
II. Allman’s Prohibition of Consecutive Prison and Probation
Sentences Does Not Apply to Indeterminate Probationary Sentences
Imposed Under SOLSA
¶5 In Allman, the supreme court, interpreting the general
probation statutes — sections 18-1.3-202 and 18-1.3-203, C.R.S.
2019 — held that “when a court sentences a defendant for multiple
offenses in the same case, it may not impose imprisonment for
certain offenses and probation for others.” Allman, ¶ 40. The
sentences at issue were consecutive sentences to prison and
probation. Id. at ¶ 6.
¶6 The district court in this case likewise sentenced Ehlebracht to
consecutive prison and probation terms. Before we address
Ehlebracht’s contentions regarding his SVP designation and the
imposition of surcharges after his sentencing hearing, we address
whether the holding in Allman applies to Ehlebracht’s consecutive
sentences to prison and probation. We do so because if these
3
consecutive sentences are illegal, the district court must, at the very
least, resentence Ehlebracht, rendering his challenges to his
current sentence moot. (Because we conclude that the sentences
are legal, we don’t need to determine whether the plea agreement
would have to be, or could be, set aside if the agreed upon sentence
was illegal.)
A. Standard of Review
¶7 We review de novo whether a trial court can impose a specific
sentence because that question turns on statutory interpretation.
Id. at ¶ 29.
B. The Allman Decision
¶8 Allman involved an offender who had been convicted of seven
counts of identity theft, two counts of forgery, and one count each
of attempted identity theft, aggravated motor vehicle theft, and theft
from an at-risk elder. For all but one of the forgery counts, the
district court imposed an aggregate sentence of fifteen years in
prison, followed by five years of parole. As for that one forgery
count, the court imposed a sentence of ten years of probation, to be
served consecutively to the prison sentence but concurrently with
the parole component of the prison sentence. Id. at ¶ 1. Allman
4
challenged the district court’s authority to impose both prison and
probation sentences in a multicount case. Id. at ¶ 28.
¶9 The court began by observing that a trial court exercises
discretion in sentencing only to the extent allowed by statute; so the
operative question was whether the applicable probation statutes
allowed the trial court to impose sentences to both prison and
probation. Id. at ¶ 30. “[L]ooking at the plain language of the
probation scheme as a whole and the practical consequences of
imposing sentences to both imprisonment and probation,” the court
concluded that the sentences in that case were not authorized by
law. Id. at ¶ 32. It did so in large part based on the following
reading of sections 18-1.3-202 and 18-1.3-203:
 The language of section 18-1.3-203(1) gives the district
court “discretion to grant a defendant probation, ‘unless,
having regard to the nature and circumstances of the
offense and to the history and character of the
defendant,’ it determines that ‘imprisonment is the more
appropriate sentence for the protection of the public.’”
Allman, ¶ 33 (quoting § 18-1.3-203(1)). Thus, “the
determination that probation is an appropriate sentence
5
for a defendant necessarily requires a concordant
determination that imprisonment is not appropriate.” Id.
And because the statute requires the district court to
make a choice between prison and probation, the
legislature must have intended that the court choose
only one or the other. Id. at ¶ 34.
 Allowing a court to impose a period of probation to begin
upon release from prison would ignore the fact that the
legislature determined the proper length of post-
incarceration supervision when it crafted the mandatory
parole scheme. Id. at ¶ 35.
 The legislature limited the confinement period applicable
to a probationary sentence to ninety days in jail, or up to
two years for work release. § 18-1.3-202(1)(a). This
limitation is “clear direction that the legislature never
intended for the court to have discretion to impose a
period of confinement longer than ninety days (or up to
two years with work release) when also sentencing a
defendant to probation.” Allman, ¶ 37.
6
 Section 18-1.3-202(1)(a) mandates that “[i]f the court
chooses to grant the defendant probation, the order
placing the defendant on probation shall take effect
upon entry.” (Emphasis added.) The legislature’s use of
the mandatory term “shall” indicates that it didn’t intend
for a probationary sentence to be imposed following a
term of incarceration. Allman, ¶ 38.
¶ 10 In addition to the language of the statutes, the court found
further support for its conclusion based on the practical
considerations of an offender simultaneously serving parole and
probation on release from prison. The court noted that an offender
who is released to parole following a prison sentence is supervised
by the executive branch. But when the same offender is also
sentenced to a consecutive probation sentence, he is
simultaneously supervised by the judicial branch. The court found
that the legislature couldn’t have intended for an offender to be
supervised by two different branches of government, with possibly
competing terms and conditions, at the same time.
¶ 11 For those reasons, the court concluded that “[b]ecause the
probation statute does not grant the courts the power to impose
7
sentences to both imprisonment and probation in a multi-count
case, . . . when a court sentences a defendant for multiple offenses
in the same case, it may not impose imprisonment for some
offenses and probation for others.” Id. at ¶¶ 28, 40.
C. Analysis
¶ 12 The district court sentenced Ehlebracht to probation for his
sex offense conviction for an indeterminate term of ten years to life
pursuant to section 18-1.3-1004(2)(a) of SOLSA. The sentencing
scheme applicable to sex offenders under SOLSA differs from the
general sentencing scheme in that, among other things, it
emphasizes treatment and supervision for sex offenders. See § 18-
1.3-1001, C.R.S. 2019 (“The general assembly . . . declares that a
program under which sex offenders may receive treatment and
supervision for the rest of their lives, if necessary, is necessary for
the safety, health, and welfare of the state.”).
¶ 13 In their supplemental briefs, the parties assert, and we agree,
that because probation imposed under SOLSA differs from the
general probation scheme in both its nature and scope, the analysis
in Allman about whether the general probation statute permits both
8
prison and probation sentences in a single case doesn’t apply to
Ehlebracht’s sentences.
1. General Concerns
¶ 14 We begin by noting that the Allman court’s analysis was based
largely on the language in the general probation statutes — sections
18-1.3-202 and 18-1.3-203. See Allman, ¶¶ 33-38. But SOLSA’s
sentencing scheme, including the provisions addressing probation,
is tailored specifically to sex offenders and differs markedly from the
general sentencing scheme for non-sex offenders. See People v.
Jenkins, 2013 COA 76, ¶¶ 14-16. The most notable difference is
that sentences under SOLSA are indeterminate, extending up to the
offender’s natural life. § 18-1.3-1004(1), (2). And, even if an
offender is sentenced to incarceration and released on parole, the
parole period that attaches is also for an indeterminate period, and
the sentence to incarceration is not deemed discharged until the
parole board discharges the offender from parole. § 18-1.3-
1006(1)(b), C.R.S. 2019.
¶ 15 Further, unlike the general probation statutes, SOLSA
requires every sex offender, whether sentenced to probation or
released on parole after serving a prison sentence, to participate in
9
Sex Offender Intensive Supervision programs, which provide the
highest level of supervision. §§ 18-1.3-1005(2), 18-1.3-1007(2),
C.R.S. 2019.
¶ 16 And, unlike section 18-1.3-203(1), the plain language of
section 18-1.3-1004(2)(a) doesn’t require a finding that prison is not
an appropriate sentence. Rather, consistent with the idea that sex
offenders should receive treatment, section 18-1.3-1004(2)(a)
requires the court to consider, in addition to the factors listed in
section 18-1.3-203, the results of the offense specific sex offender
evaluation conducted pursuant to section 16-11.7-104, C.R.S.
2019.1 That evaluation is designed to identify treatment options
and consider how best to manage or monitor behavior to protect
victims or potential victims. Thus, the court’s focus when imposing
a probationary sentence under SOLSA is whether the sex offender’s
treatment needs can best be addressed in the probation setting, not
whether incarceration is necessary to protect the public.
1 Though section 18-1.3-1004(1)(2)(a), C.R.S. 2019, includes this
cross-reference to section 18-1.3-203, C.R.S. 2019, that cross-
reference is a limited one: it incorporates factors the court should
consider when deciding whether to order probation under SOLSA.
It isn’t a wholesale incorporation of the general probation statutes.
10
¶ 17 Moreover, if Allman’s limitation on imposing sentences to both
probation and prison were carried over into sex offender sentencing,
the court, in certain situations, would be unable to effectuate the
legislative intent of SOLSA — namely, providing the most
appropriate treatment for sex offenders. For example, if, as is often
the case, an offender is convicted of both a sex offense and non-sex
offense in a single case, the court may determine that Sex Offender
Intensive Supervision Probation (SOISP) is appropriate to address
the offender’s treatment needs for the sex offense, but may also
determine that a prison sentence is either warranted or required for
the non-sex offense. Under Allman, the court would be required to
impose either prison or probation on both counts, thus limiting the
court’s ability to craft a sentence that is appropriate for the non-sex
offense and that most effectively serves the offender’s treatment
needs. Consequently, applying Allman’s case-specific approach
would interfere with the offense specific focus that the legislature
mandated in SOLSA.
2. Statutory Concerns
¶ 18 We also conclude that the provisions of the general probation
statutes that the Allman court found evidenced the legislature’s
11
intent to prohibit sentences to both prison and probation in a single
case don’t carry over to SOLSA, for three reasons.
¶ 19 First, unlike a general probationary sentence imposed
following a determinate prison sentence, the imposition of an SOISP
sentence will not extend the length of post-incarceration
supervision. An offender sentenced under SOLSA, regardless of
whether the sentence is to prison or to probation, is always subject
to potential lifetime supervision. §§ 18-1.3-1004(2)(a), 18-1.3-
1005(1)(b). Thus, there is no difference in the length of post-
incarceration supervision if a sex offender convicted of both a sex
offense and a non-sex offense is sentenced to prison for both
offenses, or, instead, is sentenced to parole for the sex offense and
prison for the non-sex offense.
¶ 20 Second, the cap on confinement that may be imposed in
conjunction with a probationary sentence under section 18-1.3-
202(1)(a) isn’t present in section 18-1.3-1004(2). Instead, section
18-1.3-1004(2)(b) authorizes the court to order, as a condition of
probation, that a sex offender be placed in a residential community
corrections program “for a minimum period specified by the court.”
12
¶ 21 Third, although section 18-1.3-202(1)(a) requires that the
order to probation take effect when entered, there is no
corresponding requirement in section 18-1.3-1004(2)(a).
3. Dual Supervision Concerns
¶ 22 The Allman court also expressed concern that prison and
probation sentences in the same case would lead to an offender, on
release from prison onto mandatory parole, being subject to dual
supervision by both parole and probation. We note, however, that
dual supervision scenarios can also arise when a court sentences
an offender to probation in one case but makes the sentence
consecutive to a prison sentence in a separate case. And, while
dual supervision would obviously arise when, as in this case, an
offender is sentenced to prison for a non-sex offense and to SOISP
probation for a sex offense, given that the conditions of SOISP are
so much more restrictive than traditional probation and parole, we
find it unlikely that conflicts in supervision would arise. In fact,
SOLSA requires collaboration between the Department of
Corrections (part of the executive branch), Judicial Department,
and Parole Board to develop criteria governing when an offender can
be released from indeterminate supervision. § 18-1.3-1009(1),
13
C.R.S. 2019. And any person sentenced to probation under SOLSA
must not only comply with the conditions imposed by standard
probation but must also follow the more restrictive provisions of
SOISP. §§ 18-1.3-1007, 18-1.3-1008(1), C.R.S. 2019.
¶ 23 For these reasons, we conclude that Allman’s reasoning for
prohibiting both prison and probation sentences in a single case
doesn’t apply to sentences imposed under SOLSA. Therefore,
Ehlebracht’s consecutive prison and probation sentences are
authorized by statute and not illegal.
III. SVP Designation
¶ 24 Turning next to Ehlebracht’s challenge to the court’s order
designating him an SVP, he contends that the district court failed to
make case specific factual findings to justify its conclusion that he
established the relationship with the victim primarily for sexual
victimization. More specifically, he asserts that the court’s
conclusion was based on an inference rather than factual findings
and that, to the extent the court relied on his prior convictions to
justify its conclusion, its finding that he had two prior convictions
for sex offenses involving children was erroneous. We don’t see any
basis to reverse.
14
A. Standard of Review
¶ 25 We review the district court’s SVP designation — a mixed
question of fact and law — by deferring to the court’s factual
findings if they have record support and by reviewing de novo the
court’s legal conclusion that an offender should be designated as an
SVP. Allen v. People, 2013 CO 44, ¶ 4.
B. Applicable Law
¶ 26 An SVP is an offender who (1) is eighteen years of age or older
as of the date of the offense; (2) has been convicted on or after July
1, 1999, of an enumerated sex offense, including sexual assault on
a child in violation of section 18-3-405, C.R.S. 2019; (3) 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, as
determined by a Risk Assessment Screening Instrument, to commit
another listed offense under the same or similar circumstances. §
18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6.
¶ 27 The statute requires the probation department, in coordination
with an evaluator, to complete the SVP Assessment Screening
Instrument (SVPASI) and make a recommendation regarding
15
whether the defendant meets the SVP criteria. § 18-3-414.5(2).
Then, “[b]ased on the results of the assessment, the court shall
make specific findings of fact and enter an order concerning
whether the defendant is a sexually violent predator.” Id.
¶ 28 Because Ehlebracht challenges only the court’s finding that he
established a relationship with the victim for the purpose of sexual
victimization, we limit our analysis to whether the district court
properly found that he satisfied that requirement.
¶ 29 An offender “‘establishe[s] a relationship’ under the
relationship criterion of the SVP statute where he create[s], start[s],
or beg[ins] the relationship primarily for the purpose of sexual
victimization.” People v. Gallegos, 2013 CO 45, ¶ 11. The “use of
the word ‘primarily’ indicates that [the legislature] did not intend for
a trial court’s SVP designation to hinge on a finding that the
offender specifically intended to establish or promote the
relationship for the purposes of sexual victimization.” Candelaria v.
People, 2013 CO 47, ¶ 15.
C. Analysis
¶ 30 The evaluator who conducted the SVPASI concluded that
Ehlebracht met the statutory criteria to be designated an SVP.
16
With respect to the relationship criterion, the evaluator found that
Ehlebracht established the relationship with the victim primarily for
the purpose of sexual victimization.
¶ 31 At the sentencing hearing, Ehlebracht challenged the
evaluator’s finding that he established the relationship with the
victim primarily for sexual victimization. He argued that the social
media application on which he met the victim was just a platform to
post anonymously and communicate with people, not a dating
application, and that their communication on the application wasn’t
sexual in nature.
¶ 32 In addressing the SVP finding, the district court said,
I have reviewed the assessment that was
done in this case. Certainly the assessment
finds that you meet the criteria for sexually
violent predator status. The sticking point I
guess in terms of your position has to do with
the relationship prong if you will. The
assessment deemed that you meet the criteria
for establishes a relationship.
In this case the facts are that having two
prior convictions for sex offenses involving
children you engaged in a relationship with
this young woman on this social – what’s the
word I’m looking for – social media app. And I
think it’s a very reasonable inference that you
did that with – for the purpose of creating a
relationship that would lead to sexual
victimization.
17
¶ 33 Ehlebracht argues that the district court failed to make
sufficient specific findings of fact to support its conclusion that he
established the relationship with the victim primarily for sexual
victimization. We disagree.
¶ 34 While the court’s findings don’t detail the events that gave rise
to the offense, the court clearly based its conclusion on the facts of
this case when it said, “In this case the facts are that having two
prior convictions for sex offenses involving children you engaged in
a relationship with this young woman on this . . . social media app.”
The facts of this case are more fully described in the arrest warrant
affidavit and the presentence investigation report. Ehlebracht was
twenty-nine years old when he met the fourteen-year-old victim on
a social media application. During their online conversation, the
victim told Ehlebracht she was fifteen, and he responded, “That’s
not bad if as long as you don’t mind I’m 22.” He then convinced her
to go with him to his apartment late at night to drink and get high
but told her to try and look as old as she could so his roommates
wouldn’t get suspicious. He picked her up near her home, drove
her to his apartment, gave her alcohol, and sexually assaulted her.
These facts amply support the court’s finding that Ehlebracht
18
established the relationship with the victim primarily for the
purpose of sexual victimization. See id. at ¶ 19.
¶ 35 To the extent Ehlebracht takes issue with the court’s
description of his prior convictions as both being sex offenses that
involved children, we agree that the court incorrectly characterized
those offenses because only one of his prior convictions was for
sexual assault on a child. But in addition to listing a 2010 felony
conviction for attempted sexual assault on a child, the presentence
investigation report also listed two misdemeanor convictions with
underlying factual bases involving Ehlebracht having sex with a
minor he met on MySpace (a social media site). Thus, since all of
Ehlebracht’s prior convictions involved him having sex with minors,
we conclude that the court’s technically erroneous description of
Ehlebracht’s prior convictions doesn’t undermine its conclusion
that he established the relationship with the victim primarily for
sexual victimization.
¶ 36 Lastly, we reject Ehlebracht’s contention that the district court
erred by “infer[ring]” that he created the relationship for the
purpose of sexual victimization without basing its finding on
specific facts of this case. Rarely will an offender admit that he
19
established or promoted a relationship primarily for sexual
victimization. In this case, viewing the court’s statement in context,
we conclude that the court’s use of the word “inference” merely
conveyed its conclusion that Ehlebracht established the
relationship with the victim primarily for sexual victimization. See
Merriam-Webster Dictionary, https://perma.cc/X3M3-NUSQ
(defining “inference” as “a conclusion or opinion that is formed
because of known facts or evidence”). Certainly one reason a
twenty-nine-year-old man would ask a fifteen-year-old girl he met
online to come to his apartment to drink alcohol and get high would
be to sexually victimize her.
¶ 37 In sum, we won’t disturb the court’s SVP determination.
IV. Late Imposed Surcharges Do Not Violate Double Jeopardy
¶ 38 Ehlebracht also contends that the district court violated his
right to be free from double jeopardy by imposing the sex offender,
special advocate, and crime against a child surcharges after his
sentencing hearing. Again, we disagree.
A. Standard of Review and Applicable Law
¶ 39 Whether the district court violated Ehlebracht’s right to be free
from double jeopardy hinges on the legality of the sentences
20
imposed in open court. Waddell v. People, 2020 CO 39, ¶ 10. We
review de novo whether the sentences imposed at the sentencing
hearing are authorized by law. See Veith v. People, 2017 CO 19, ¶
12.
¶ 40 Under some circumstances, increasing a defendant’s
punishment after a lawful sentence has been imposed and the
defendant begins serving it “violates the double jeopardy protection
against multiple punishments for the same offense.” Romero v.
People, 179 P.3d 984, 989 (Colo. 2007). The protection against
double jeopardy, however, doesn’t preclude the correction of a
sentence that wasn’t authorized by law when it was imposed.
Yeadon v. People, 2020 CO 38, ¶ 9.
¶ 41 A sentence is illegal, or not authorized by law, when it is
inconsistent with the statutory scheme created by the legislature.
People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005).
B. Analysis
¶ 42 When the parties submitted their initial briefs in this case,
divisions of this court were split on the question whether a
particular surcharge — the drug offender surcharge — was
mandatory, and whether the district court could legally impose it
21
after failing to impose it at the sentencing hearing. But the
supreme court, in Waddell and Yeadon, subsequently resolved that
dispute. In each case, the court held that, because the drug
offender surcharge is statutorily required, the original sentence
without the surcharge was illegal and the imposition of such
surcharge after sentencing didn’t violate the offender’s right to be
free from double jeopardy. Waddell, ¶ 20; Yeadon, ¶ 13.
¶ 43 Ehlebracht challenges the court’s imposition of sex offender,
crimes against a child, and special advocate surcharges after the
sentencing hearing. While those particular surcharges weren’t at
issue in Waddell or Yeadon, they are subject to the reasoning of
those cases. Accordingly, whether the imposition of those
surcharges after the sentencing hearing violated Ehlebracht’s
double jeopardy rights turns on whether the sentence imposed
without those surcharges was illegal. See Yeadon, ¶ 13.
¶ 44 First, we assume, for purposes of our analysis, that those
surcharges are punitive, and thus part of Ehlebracht’s criminal
sentence.
¶ 45 Turning next to the language of the sex offender and crime
against a child statutes, both provide that each person convicted of
22
one of the enumerated offenses “shall be required to pay a
surcharge.” §§ 18-21-103(1), 18-24-102(1), C.R.S. 2019 (emphasis
added). As for the special advocate surcharge statute, it provides
that “a surcharge of one thousand three hundred dollars shall be
levied on each criminal action resulting in a conviction” that, as
relevant here, was based on a charge of sexual assault on a child. §
24-4.2-104(1)(a)(II)(A), C.R.S. 2019 (emphasis added).
¶ 46 The use of the phrases “shall be required to pay” and “shall be
levied” in those statutes indicates that these surcharges are
mandatory in all cases where a defendant is convicted of one of the
enumerated crimes. See Waddell, ¶¶ 16, 22, 25; Yeadon, ¶ 11; see
also People v. Hyde, 2017 CO 24, ¶ 28 (“The legislature’s use of the
word ‘shall’ in a statute generally indicates its intent for the term to
be mandatory.”). Thus, because Ehlebracht’s sentence at the
hearing didn’t include those surcharges, it was illegal when first
imposed. See Waddell, ¶¶ 20, 27; Yeadon, ¶ 16. Therefore, the
sentence was subject to correction at any time under Crim. P. 35(a),
and the court’s subsequent addition of those surcharges didn’t
violate Ehlebracht’s double jeopardy rights. See Waddell, ¶¶ 20,
27; see also People v. Smith, 121 P.3d 243, 251 (Colo. App. 2005)
23
(correcting an illegal sentence doesn’t violate a defendant’s right
against double jeopardy).
¶ 47 But that isn’t the end of the matter. The statutory provisions
imposing each of these surcharges also contains language allowing
the court to waive the surcharges if it finds that the offender is
indigent or financially unable to pay all or a part of the surcharge.
§§ 18-21-103(4); 18-24-103(3); 24-4.2-104(1)(c), C.R.S. 2019.
Because the district court imposed the surcharges on Ehlebracht
without giving him an opportunity to prove that he falls within one
or more of the exemptions, we remand this case to the district court
to afford Ehlebracht an opportunity to prove that he is entitled to a
waiver. See Yeadon, ¶ 15.
V. Conclusion
¶ 48 Ehlebracht’s consecutive prison and probation sentences are
legal, and the orders designating Ehlebracht an SVP and assessing
the statutory surcharges are affirmed. The case is remanded to the
district court with instructions to provide Ehlebracht with the
opportunity to prove that he is entitled to a waiver of one or more of
the surcharges.
JUDGE WELLING and JUDGE GOMEZ concur.
24