in Interest of J.M.M

2021 COA 88

• Court: Colorado Court of Appeals
• Decided: August 4, 2021
• Docket: 20CA0195, People
• Status: Published

Opinion

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

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

1 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

2 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.

3 ¶ 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

4 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

¶ 14 Section 16-22-113(1) and its paragraph (a) set forth the

general eligibility requirements for discontinuance of sex offender

registration:

5 [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, . . .

6 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

7 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

8 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 . . .

9 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

10 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

11 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

12 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.

13 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.”

14 ¶ 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

III. Conclusion

¶ 35 The order is affirmed.

JUDGE ROMÁN and JUDGE HARRIS concur.