in Interest of J.M.M

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
July 1, 2021
2021COA88
No. 20CA0195, People in Interest of J.M.M. — Sex Offender
Registration — Juveniles — Petition for Removal from Registry
As a matter of first impression, a division of the court of
appeals considers whether, for purposes of determining a juvenile
sex offender’s eligibility to file a petition to discontinue sex offender
registration, “the successful completion of and discharge from a
juvenile sentence or disposition” under section 16-22-113(1)(e),
C.R.S. 2020, means that the defendant must have successfully
completed his or her original sentence or disposition. The division
holds that a juvenile defendant who successfully completed a
sentence that was not the defendant’s original sentence or
disposition has nonetheless successfully completed “a juvenile
sentence or disposition” and, thus, may seek to deregister as a sex
offender.
COLORADO COURT OF APPEALS 2021COA88
Court of Appeals No. 20CA0195
El Paso County District Court No. 99JD2134
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
In the Interest of J.M.M.,
Juvenile-Appellee.
ORDER AFFIRMED
Division II
Opinion by JUDGE LIPINSKY
Román and Harris, JJ., concur
Announced July 1, 2021
Daniel H. May, District Attorney, Doyle Baker, Senior Deputy District Attorney,
Tanya A. Karimi, Deputy District Attorney, Colorado Springs, Colorado, for
Plaintiff-Appellant
J.M.M., Pro Se
¶1 The meaning of a statute can hinge on the General Assembly’s
choice of a single word. In this case, the General Assembly used
the indefinite article “a,” rather than the definite article “the,” in
establishing the conditions under which a person who committed a
sex-related offense as a juvenile may petition a court to discontinue
registration as a sex offender. We must interpret statutes using the
words the General Assembly employed.
¶2 Under the Colorado Sex Offender Registration Act (the Act),
§§ 16-22-101 to -115, C.R.S. 2020, certain persons convicted of
unlawful sexual offenses must register on the state’s sex offender
registry. § 16-22-103, C.R.S. 2020. Section 16-22-103(4) extends
the registration requirement to “any person who receives a
disposition or is adjudicated a juvenile delinquent based on the
commission of any act that may constitute unlawful sexual
behavior or who receives a deferred adjudication based on
commission of any act that may constitute unlawful sexual
behavior . . . .”
¶3 In addition, section 16-22-113, C.R.S. 2020, specifies when
persons required to register as a sex offender are eligible to seek to
discontinue their registration. While various subsections of that
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statute apply to persons convicted of a sex offense as a juvenile,
section 16-22-113(1)(e) expressly provides that “person[s] [who
were] younger than eighteen years of age at the time of commission
of the offense” may seek to deregister as a sex offender “after the
successful completion of and discharge from a juvenile sentence or
disposition . . . .”
¶4 In this appeal, we consider whether a person who served a
sentence or disposition that was not his or her original juvenile
sentence or disposition is nonetheless eligible to file a petition to
deregister as a sex offender under section 16-22-113(1)(e).
¶5 We conclude that the reference to “the successful completion
of and discharge from a juvenile sentence or disposition” in section
16-22-113(1)(e) (emphasis added) does not mean that the person
must have successfully completed his or her original sentence or
disposition. We therefore affirm the district court’s order.
I. Background
¶6 When J.M.M. was eleven years old, he was charged with
sexual assault on a child, violent crime-sexual offense, and sexual
assault on a child (pattern). On March 21, 2000, J.M.M. pleaded
guilty to sexual assault on a child (pattern) and, together with the
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prosecution, submitted a motion for a two-year deferred sentence
subject to specified terms and conditions. The terms and
conditions included sex offender treatment and registration as a sex
offender. The court granted the motion and ordered J.M.M. to
register as a sex offender within forty-eight hours of accepting the
deferred sentence.
¶7 But J.M.M. did not satisfy the terms and conditions of the
deferred sentence. Accordingly, the People filed a motion to revoke
J.M.M.’s deferred sentence. The court granted the motion, revoked
the deferred sentence, sentenced J.M.M. to twenty-four months of
probation, and ordered him to complete sex offender treatment.
¶8 No fewer than three times, J.M.M. violated the terms and
conditions of his probation and was resentenced to probation. On
January 6, 2004, following J.M.M.’s last violation of the terms and
conditions of his probation, the court sentenced him to the custody
of the Department of Youth Corrections (DYC) for two years and
ordered him to successfully complete sex offender treatment (the
final sentence).
¶9 J.M.M. satisfied the terms and conditions of the final
sentence. He was paroled on December 19, 2005.
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¶ 10 On April 23, 2019, J.M.M. filed a petition to discontinue sex
offender registration pursuant to section 16-22-113(1)(e). The
People objected, arguing that he was not eligible to have his sex
offender registration discontinued under section 16-22-113(1)(e),
and that section 16-22-113(1)(a) applied instead, because J.M.M.
had not successfully completed his original sentence or disposition.
¶ 11 The People do not explain when J.M.M. first received a
“sentence” or a “disposition.” A deferred sentence logically cannot
be a “sentence” because it is deferred. A defendant who receives a
deferred sentence can avoid a sentence by satisfying the terms and
conditions of the deferred sentence. See Pineda-Liberato v. People,
2017 CO 95, ¶ 15, 403 P.3d 160, 163 (“[O]nce a person has
successfully completed a deferred sentence, his or her guilty plea is
withdrawn, and the case is dismissed, no conviction is deemed to
have existed.”).
¶ 12 A deferred sentence may not constitute a “disposition”
either. The definition of “convicted” or “conviction” in section
16-22-102(3), C.R.S. 2020, separately mentions “having received a
disposition as a juvenile” and “having received a deferred judgment
and sentence or a deferred adjudication.” Thus, a “disposition” is
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different from a “deferred judgment and sentence or a deferred
adjudication.” In addition, neither the sex offender registration
statute, § 16-22-103, nor the definitional section of the juvenile
code, § 19-2-103, C.R.S. 2020, contains a definition of
“disposition.”
¶ 13 The People’s failure to clarify the first time J.M.M. received a
“sentence” or “disposition” is of no consequence, however.
Regardless of whether J.M.M.’s “two-year deferred judgment and
sentence” was or was not a “sentence” or a “disposition,” he
received a “sentence” or a “disposition” the first time the court
placed him on probation. As noted above, more than once, J.M.M.
violated the terms and conditions of his probation and was re-
sentenced to probation. There is no dispute that J.M.M. received
multiple “sentences” or “dispositions.” Thus, we need not decide
which specific court order reflected J.M.M.’s initial “sentence” or
“disposition.”
¶ 14 Section 16-22-113(1) and its paragraph (a) set forth the
general eligibility requirements for discontinuance of sex offender
registration:
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[A]ny person required to register pursuant to
section 16-22-103 . . . may file a petition with
the court that issued the order of judgment for
the conviction that requires the person to
register for an order to discontinue the
requirement for such registration . . . as
follows:
(a) Except as otherwise provided in paragraphs
(d), (e), and (f) of this subsection (1), if the
offense that required such person to register
constituted or would constitute a class 1, 2, or
3 felony, after a period of twenty years from
the date of such person’s discharge from the
department of corrections, if such person was
sentenced to incarceration, or discharge from
the department of human services, if such
person was committed, or final release from
the jurisdiction of the court for such offense, if
such person has not subsequently been
convicted of unlawful sexual behavior or of any
other offense, the underlying factual basis of
which involved unlawful sexual behavior . . . .
¶ 15 If section 16-22-113(1)(a) applies, J.M.M. would not be eligible
to seek to discontinue his registration until he had waited “twenty
years from the date of [his] . . . discharge from the department of
human services . . . .” Thus, under the People’s reading of sections
16-22-113(1)(a) and 16-22-113(1)(e), J.M.M. filed his petition to
discontinue his registration prematurely.
¶ 16 At the deregistering hearing, the district court found that
J.M.M. “successfully complete[d] [his] DYC commitment, . . .
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ha[sn’t] been under the Juvenile Court’s jurisdiction for some
decades now, . . . do[es] not present a community safety risk,” and
successfully completed the juvenile sex offender treatment program.
Accordingly, the court ordered the discontinuance of J.M.M.’s sex
offender registration.
¶ 17 On appeal, the People argue that, because J.M.M. failed to
complete the terms of his “original, deferred judgment” and had his
probation revoked multiple times, the district court erred by
applying section 16-22-113(1)(e) and granting J.M.M.’s petition to
deregister as a sex offender. We disagree.
II. The Colorado Sex Offender Registration Act
A. Standard of Review
¶ 18 We review issues of statutory interpretation de novo. McCulley
v. People, 2020 CO 40, ¶ 10, 463 P.3d 254, 257. “We must
interpret the statute as a whole and in the context of the entire
statutory scheme, giving consistent, harmonious, and sensible
effect to all its parts.” Id. In construing a statute, our goal is to
ascertain and give effect to the General Assembly’s intent. Id. To
determine the intent of the General Assembly, we first look to the
statutory language, giving words and phrases their plain and
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ordinary meanings. Id. If the language of the statute is clear and
unambiguous, we give effect to its plain meaning and apply the
statute as written. Manjarrez v. People, 2020 CO 53, ¶ 19, 465 P.3d
547, 550-51.
B. Analysis
1. The Statutory Framework
¶ 19 Section 16-22-113(1)(e) provides that a person required to
register because he or she committed a sex offense as a juvenile
may file a petition to discontinue registration
after the successful completion of and discharge
from a juvenile sentence or disposition, and if
the person prior to such time has not been
subsequently convicted or has a pending
prosecution for unlawful sexual behavior or for
any other offense, the underlying factual basis
of which involved unlawful sexual behavior
and the court did not issue an order either
continuing the duty to register or
discontinuing the duty to register pursuant to
paragraph (b) of subsection (1.3) of this
section.
(Emphasis added.)
¶ 20 The People argue that, even though J.M.M. completed the final
sentence, he did not “successfully complete” it. Thus, the People
assert, J.M.M. is ineligible to seek to deregister as a sex offender
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under section 16-22-113(1)(e) because the court imposed the final
sentence only after revoking J.M.M.’s original sentence or
disposition and after J.M.M. had violated the terms and conditions
of his probation at least three times.
¶ 21 The People argue that the language in other sections of the Act
compels the conclusion that section 16-22-113(1)(e) does not apply
to J.M.M.’s petition to discontinue sex offender registration. The
People note that section 16-22-103 provides that persons who were
ordered to register as sex offenders while juveniles may petition the
court for an order to discontinue their registration “with respect to
section 16-22-113(1)(a) to (1)(e).” We agree with the People that this
language indicates that subsection (1)(e) is not the only subsection
of section 16-22-113 applicable to juvenile offenders.
¶ 22 According to the People, three of the other subsections of
section 16-22-113 must guide our interpretation of section
16-22-113(1)(e). Subsections (1)(a) and (1)(b) of section 16-22-113
refer to the person’s “discharge from the department of human
services, if such person was committed,” while subsection (1)(a.5)
addresses “completion of the person’s sentence and his . . .
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discharge from the department of human services, if he . . . was
committed to such department.”
¶ 23 The People, however, do not draw a meaningful distinction
between the references to sentences of commitment in subsections
(1)(a), (1)(a.5), and (1)(b), and the use of “successful completion” in
subsection (1)(e). The references to sentences of commitment in the
first three subsections do not compel the conclusion that a
“successful completion” for purposes of subsection (1)(e) only means
the successful completion of the original sentence. We see no
inconsistency between the references to “discharge from the
department of human services” after the person “was committed” in
subsections (1)(a), (1)(a.5), and (1)(b), and the reference to
“successful completion” in subsection (1)(e).
¶ 24 In addition, subsections (1)(a), (1)(a.5), and (1)(b) expressly tell
us that they do not apply to subsection (1)(e). See § 16-22-113(1)(a)
(“[e]xcept as otherwise provided in paragraphs (d), (e), and (f) of this
subsection (1) . . .”); § 16-22-113(1)(a.5) (“[e]xcept as otherwise
provided in subsections (1)(d), (1)(e), and (1)(f) of this section . . .”);
§ 16-22-113(1)(b) (“[e]xcept as otherwise provided in paragraphs (d),
(e), and (f) of this subsection (1) . . .”). Although we follow the canon
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of statutory construction that, when interpreting related statutes,
we must “harmonize their meanings and interpret their words
consistently,” Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1366 (Colo.
1994), there is nothing to harmonize if the words of the different
statutes do not produce dissonance.
¶ 25 While we agree with the People that we cannot ignore the word
“successful” in section 16-22-113(1)(e), see People v. Lee, 2020 CO
81, ¶ 11, 476 P.3d 351, 354, they do not point to any case law or
other authority stating that the use of “successful” in the statute
means that a juvenile sex offender cannot “successfully complete” a
subsequent sentence involving the same juvenile offense. But a
recent case from a division of this court demonstrates that the
district court correctly interpreted “successful completion.”
¶ 26 In People v. Argott, a division of this court held that a
defendant had “successfully completed” the community-based
portion of his sentence for purposes of section 18-1.3-103.5(2)(a),
C.R.S. 2020, even though the court had twice revoked his probation
and twice resentenced him to probation. 2021 COA 42, ¶¶ 2, 19,
___ P.3d ___, ___. In that case, the trial court had originally
sentenced the defendant to probation after he pleaded guilty to a
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drug felony that fell under section 18-1.3-103.5(2)(a). Id. at ¶ 2, ___
P.3d at ___. (Section 18-1.3-103.5(2)(a) is known as a “wobbler”
statute because the severity of the offense “wobbles” from a felony
to a misdemeanor upon the defendant’s “successful completion” of
the community-based portion of his sentence. Id. at ¶ 1, ___ P.3d at
___.)
¶ 27 After satisfying the terms of his second sentence of probation,
the defendant in Argott asked the court to reduce his conviction to a
misdemeanor because he had “successfully completed” his
probation. Id. at ¶ 2, ___ P.3d at ___. The trial court denied the
defendant’s request based on the same theory that the People
advance here — that the revocation of the defendant’s probation
“meant that [defendant] had not successfully completed his
probation.” Id.
¶ 28 The division, however, held that “successfully completed” for
purposes of section 18-1.3-103.5(2)(a) means that “the defendant
successfully complete[d] any subsequent community-based
probationary sentence.” Id. at ¶ 9, ___ P.3d at ___ (emphasis
added). The division in Argott noted that the statute “does not
exclude from its reach defendants who have had courts revoke their
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probation and whom courts have then resentenced to probation.”
Id. at ¶ 14, ___ P.3d at ___. The division observed that the
disqualifying circumstances in section 18-1.3-103.5(2)(a) do not
include the revocation of the defendant’s probation and his or her
resentencing. Id. at ¶ 15, ___ P.3d at ___.
¶ 29 We are persuaded that the reasoning of Argott applies here.
Like section 18-1.3-103.5(2)(a), sections 16-22-113(1)(e) and
16-22-113(3) specify circumstances that disqualify sex offenders
from seeking to deregister. Those disqualifying circumstances do
not include resentencing after revocation of probation. “If the
General Assembly had wanted to classify the situation that we face
now as a disqualifying circumstance, it easily could have done so.”
Argott, ¶ 15, ___ P.3d at ___.
¶ 30 The Argott division further considered the General Assembly’s
intent in enacting section 18-1.3-103.5(2)(a). But, in this case, we
need not explore the legislative intent underlying section
16-22-113(1)(e) because such intent is clear from the statute’s plain
language. See People v. Rojas, 2019 CO 86M, ¶ 10, 450 P.3d 719,
721.
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2. The Grammatical Structure of Section 16-22-113(1)(e)
¶ 31 More fundamentally, the People’s argument cannot be squared
with the General Assembly’s use of the indefinite article “a”
preceding “juvenile sentence or disposition.” See Brooks v. Zabka,
168 Colo. 265, 269, 450 P.2d 653, 655 (1969) (“It is a rule of law
well established that the definite article ‘the’ particularizes the
subject which it precedes. It is a word of limitation as opposed to
the indefinite or generalizing force of ‘a’ or ‘an.’”); see also Niz-
Chavez v. Garland, 593 U.S. ___, ___, 141 S. Ct. 1474, 1481-82
(2021) (explaining that “a” is an indefinite article and that “the” is a
definite article).
¶ 32 The statute refers to “a” sentence or disposition, which is not
limiting and does not mean a specific juvenile sentence or
disposition, much less the offender’s original sentence or
disposition. See People v. Flynn, 2020 COA 54, ¶¶ 19-20, 463 P.3d
360, 363 (explaining that the use of the word “the” in “the officer”
particularizes or defines which officer). The People’s interpretation
of section 16-22-113(1)(e) would require us to rewrite the statute by
replacing “a” with “the original.”
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¶ 33 As we read the statute, a juvenile offender is eligible to seek to
deregister as a sex offender even if the offender failed to satisfy the
terms and conditions of earlier sentences or dispositions, so long as
the offender successfully completed his or her subsequently
imposed sentence or disposition. After all, under those
circumstances, the offender completed “a sentence or disposition.”
¶ 34 Thus, we do not read the statute to mean that a “successful
completion” only occurs if the juvenile offender successfully
completes his or her original sentence or disposition. If the General
Assembly intended the statute to apply only to those juvenile
offenders who successfully completed their original sentence or
disposition, it could have done so by using “the original” in place of
“a.” (Or, as noted above, supra Part II.B.1, the statute could have
stated that juvenile offenders who do not complete their original
sentence or disposition are disqualified from deregistering.) “[W]e
must accept the General Assembly’s choice of language and not add
or imply words that simply are not there.” People v. Diaz, 2015 CO
28, ¶ 15, 347 P.3d 621, 625 (quoting People v. Benavidez, 222 P.3d
391, 394 (Colo. App. 2009)). Given that the language of the statute
is unambiguous, we apply the statute as written. See Manjarrez,
15
¶ 19, 465 P.3d at 550-51. Because J.M.M. successfully completed
a juvenile sentence or disposition and satisfied the other
requirements of section 16-22-113(1)(e), we conclude the district
court did not err by granting J.M.M.’s petition to discontinue sex
offender registration.
III. Conclusion
¶ 35 The order is affirmed.
JUDGE ROMÁN and JUDGE HARRIS concur.
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