People v. Fair

2013 COA 41, 312 P.3d 242, 2013 WL 1244185, 2013 Colo. App. LEXIS 442
CourtColorado Court of Appeals
DecidedMarch 28, 2013
DocketCourt of Appeals No. 11CA1377
StatusPublished
Cited by168 cases

This text of 2013 COA 41 (People v. Fair) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Fair, 2013 COA 41, 312 P.3d 242, 2013 WL 1244185, 2013 Colo. App. LEXIS 442 (Colo. Ct. App. 2013).

Opinions

Opinion by

JUDGE FURMAN

T1 Defendant, Craig McKenzie Fair, appeals the district court's orders revoking his probation and denying his motion to stay the probation revocation proceedings and the sentence imposed on revocation. We affirm.

T2 The victim is a thirty-two-year-old, quadriplegic woman who, ten years earlier, had an allergic reaction to medication, causing her paralysis and brain damage. Defendant was her caregiver,

1 3 The victim told a police detective that defendant raped her. Defendant subsequently pleaded guilty to sexual assault (a class 4 felony) in exchange for the dismissal of one count of sexual assault of- an at-risk adult (a class 2 felony) and one count of [244]*244unlawful sexual contact of an at-risk adult (a class 6 felony).

¶ 4 Defendant's offense specific evaluation and presentence investigation report (PSIR) recommended that he be placed in offense specific community based treatment and supervision because, when he pleaded guilty, he admitted to the sexual assault. Defendant's PSIR described his risk to reoffend as in the "Level 2 'moderate to high'" risk range. This level consists of

a) [offenders whol admit to some of the behavior involved in the offense, but justify its occurrence or minimize its importance, b) offenders who admit the facts of the offense, but deny the sexually abusive aspect of the offense, and/or c) offenders who do not admit committing the current sexual offense, but admit to engaging in less harmful sexual behaviors.

Sex Offender Management Board (SOMB), Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders Standard 8.510.

¶ 5 The court agreed with the recommendations contained in the offense specific evaluation and PSIR and sentenced defendant to sex offender intensive supervision probation (SOISP) for a term of ten years to life. As part of the sentence, the court ordered defendant to "complete sex offender specific treatment." Defendant agreed to abide by specific conditions of probation (he signed them), which required him to

• "attend and actively participate in a sex offender evaluation and treatment program approved by the probation officer";
• "abide by the rules of the treatment program, and the treatment contract"; and
• "successfully complete the program to the satisfaction of the probation officer and the treatment provider."

Thus, when the court placed defendant in offense specific community based treatment and supervision, defendant was a Level 2 risk. He did not, however, remain at this level.

¶ 6 Some months later, defendant's probation officer filed a motion to revoke defendant's probation based on defendant's termination from offense specific treatment. Defendant had been terminated because, in treatment, he refused to admit to committing the offense. This refusal resulted in his probation officer reclassifying defendant as a Level 3 denier.

¶ 7 The SOMB regulations define Level 3 deniers as offenders who "deny committing the current offense and refuse to acknowledge responsibility for even remotely similar behaviors.... These types of denial are most resistant to change." SOMB Standard 3.510.

¶ 8 One week prior to the revocation hearing, defendant moved to vacate his guilty plea. At that hearing, defendant requested that the proceedings be stayed so that he could pursue his motion to vacate his guilty plea. The district court proceeded with the revocation hearing over defendant's objection. After finding that defendant had violated the terms and conditions of his SOISP, the court revoked his probation.

¶ 9 At sentencing, defendant again requested that the proceedings be stayed so that he could pursue his motion to vacate his guilty plea. The district court denied his request and sentenced him to a term of two years to life in the Department of Corree-tions (DOC).

¶ 10 On appeal, defendant contends the district court abused its discretion in revoking his probation and in sentencing him to a term in the DOC. He also contends the district court's refusal to continue the revocation proceedings denied him the opportunity to properly litigate his motion to vacate his guilty plea. We reject each contention in turn.

I. Probation Revocation

¶ 11 We first consider whether the district court abused its discretion in revoking defendant's probation and in sentencing him to a term in the DOC. We conclude it did not.

¶ 12 Probation is a privilege, not a right. If a probationer violates any condition of probation, the order of probation may be [245]*245revoked. People v. Lientz, 2012 COA 118, ¶ 44, - P.3d -; People v. Colabello, 948 P.2d 77, 79 (Colo.App.1997). Whether probation has been violated is a question of fact, and, onee a violation is found, the decision whether to revoke a defendant's probation is discretionary with the district court. §§ 16-11-205, 16-11-206, C.R.S. 2012; People w. Ickler, 877 P.2d 863, 866 (Colo.1994).

¶ 13 Guiding Principle 2 of the SOMB Standards provides guidance for the district court's exercise of its discretion. Principle 2 states that "Islex offenders are dangerous" and that "[slome offenders may be too dangerous to be placed in the community."

¶ 14 The court found defendant was just such an offender based on the following evidence:

1. The letter terminating defendant from treatment, which was introduced into evidence at the revocation hearing, stated that, after entering treatment, defendant "reported that he had not sexually assaulted [the victim] and that all sexual contact with her was 'consensual?"
The letter stated that the agency (Teaching Humane Existence) responsible for treating defendant was obligated to terminate him from treatment because of his ongoing denial.
Defendant's probation officer testified, generally, that defendants who remain in denial cannot successfully complete treatment.

¶ 15 Defendant nevertheless contends the district court's order revoking his probation violated the SOMB regulations We disagree. "

¶ 16 The interpretation of a regulation is a legal question we review de novo. Sohocki v. Colo. Air Quality Control Comm'n, 12 P.3d 274, 277 (Colo.App.1999). In reviewing a regulation, we apply the canons of statutory construction. Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142, 1145 (Colo.App.2008). We look first to the regulation's plain language and interpret its terms according to their plain and ordinary meaning. Id.

¶ 17 It was undisputed that by the time of the revocation hearing defendant was no longer a Level 2 risk. Instead, as noted, his probation officer classified him as a Level 3 denier.

¶ 18 The SOMB regulations provide that Level 3 deniers "shall not be recommended for community based treatment and supervision." SOMB Standard 8.520 (emphasis added). The SOMB discussion of this standard explains why:

Secrecy, denial, and defensiveness are part of sex offenders' pathology.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 41, 312 P.3d 242, 2013 WL 1244185, 2013 Colo. App. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fair-coloctapp-2013.