People v. Lientz

2012 COA 118, 317 P.3d 1215, 2012 WL 2926639, 2012 Colo. App. LEXIS 1130
CourtColorado Court of Appeals
DecidedJuly 19, 2012
DocketNo. 09CA2025
StatusPublished
Cited by11 cases

This text of 2012 COA 118 (People v. Lientz) 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. Lientz, 2012 COA 118, 317 P.3d 1215, 2012 WL 2926639, 2012 Colo. App. LEXIS 1130 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge HAWTHORNE.

{1 Defendant, Ricky Lientz, appeals the district court's order revoking his probation and the sentences thereafter imposed. We affirm the order, but vacate the sentences and remand for resentencing.

I. Facts

T2 Defendant pled guilty in case number 01 CR 1828 to two counts of sexual exploitation of a child and one count of sexual assault on a child by one in a position of trust. The plea agreement called for a sentence of lifetime probation with three consecutive two-year jail terms. Defendant also pled guilty in case number 01 CR 1848 to sexual exploitation of a child. The plea agreement called for a sentence of lifetime probation and a two-year jail term to be served consecutively to the sentence in the companion case.

T3 The district court sentenced defendant in accordance with the plea agreements, and he was subsequently released from jail.

T4 Two months later, the probation department filed a petition to revoke his probation, citing, among other things, defendant's admissions that he had exposed himself to ten to twenty nonconsenting individuals and engaged in six "+" sexual interactions. Following a hearing, the district court revoked and then regranted defendant's probation.

15 Two years later, the probation department filed another petition to revoke defendant's probation, alleging that he violated probation condition 16, 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 treatment provider." [1218]*1218The petition alleged that defendant had been "negatively discharged from the Sex Offender Treatment Program at Wisdom Works for non-compliance with Probation and his Treatment Contract" and that defendant had told his probation officer that he had unauthorized sexual contact in an open area with two unknown males he had met only minutes earlier. The petition was later amended to include numerous other violations, including a deceptive polygraph regarding illegally exposing his penis, an unauthorized sexual contact with a male neighbor, viewing pornographic magazines and videos numerous times, masturbating to pornographic videos, thinking of minors while viewing pornographic material, and failing to comply with his probation officer's instruction to clean and organize his storage room to allow for compliance searches.

T6 After a hearing, the district court revoked defendant's probation. The court found that, based on the testimony of the probation officer and a treatment provider, defendant had violated the conditions of his probation. At a subsequent sentencing hearing, the court sentenced defendant to two concurrent indeterminate terms of fifteen years to life imprisonment in the custody of the Department of Corrections (DOC).

7 Defendant appeals the probation revocation and sentences.

IL Statutory and Constitutional Propriety of Two Probation Conditions

18 Defendant contends that the district court committed plain error in failing to conclude at the probation revocation hearing that two of the probation conditions he violated-the conditions prohibiting sexual contact without prior approval and possessing pornography-are not statutorily or constitutionally authorized. Specifically, he argues: (1) the conditions are not statutorily authorized - under - section - 18-1.3-204(2)(a)(XV), C.R.S.2011, because they are not "reasonably related to [his] rehabilitation and the purposes of probation"; (2) the condition prohibiting sexual contact without prior approval violates his constitutional rights to liberty, privacy, and freedom of association; (8) the condition prohibiting possessing pornography is overbroad and violates his First Amendment right to possess sexually explicit, but non-obscene materials; and (4) both conditions are unconstitutionally void for vagueness. We reject each argument in turn.

T9 As an initial matter, we note that we cannot affirm the revocation based on the fact that the record shows that defendant violated other probation conditions-apart from the two conditions he challenges here. Rather, we can only affirm on that basis if "the record clearly shows the trial court would have reached the same result" even without considering the challenged conditions. People v. Loveall, 231 P.3d 408, 416 (Colo.2010) (quoting State v. Ojeda, 159 Ariz. 560, 769 P.2d 1006, 1008 (1989). Because the record does not clearly show that here, we address the merits of defendant's contention.

110 Defendant did not argue to the district court that the two probation conditions were not statutorily or constitutionally authorized. Therefore, we review only for plain error.1 A See People v. Miller, 113 P.3d 743, 749 (Colo.2005).

111 A plain error is an error that is both obvious and substantial. People v. Cook, 197 P.3d 269, 275 (Colo.App.2008). An error is obvious if it is "so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection." Id. (quoting People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005)). An error is substantial if it so undermined the trial's fundamental fairness as to cast doubt on the conviction's reliability. Cook, 197 P.3d at 276.

A. Statutory Authorization for Challenged Conditions

112 Defendant first argues that the two probation conditions he challenges here-the conditions prohibiting sexual contact without prior approval and possessing pornography-are not "reasonably related to [1219]*1219[his] rehabilitation and the purposes of probation," as section 18-1.3-204(2)(a)(XV) requires, because the victims of his sex crimes were children and not adults. Thus, he contends that the district court plainly erred in failing to conclude that the conditions were not statutorily authorized. We are not persuaded.

1 13 Section 18-1.3-204(2)(a)(XV) provides: When granting probation, the court may, as a condition of probation, require that the defendant ... [slatisfy any other conditions reasonably related to the defendant's rehabilitation and the purposes of probation.

«114 Probation conditions serve the dual purposes of enhancing the reintegration of an offender into a responsible lifestyle and affording society a measure of protection against recidivism. People v. Brockelman, 933 P.2d 1315, 1318-19 (Colo.1997).

115 Here, for three reasons, the district court did not plainly err in failing to conclude that the two conditions were not "reasonably related to [defendant's] rehabilitation and the purposes of probation" under section 18-1.3-204(2)(a)(XV). First, no court in this state has concluded as defendant asserts. See People v. Sandoval-Candelaria, - P.3d -, - (Colo.App.2011) ("If an issue has not yet been decided by a division of this court or the Colorado Supreme Court, then the trial court's error is not obvious, and therefore not plain.").

1 16 Second, numerous courts in other jurisdictions have rejected this argument, and we find their reasoning persuasive. See United States v. Branch, 421 Fed.Appx.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 COA 118, 317 P.3d 1215, 2012 WL 2926639, 2012 Colo. App. LEXIS 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lientz-coloctapp-2012.