The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
2021 CO 40
Supreme Court Case No. 20SC438 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 18CA156
Petitioner:
Wesley Richard DePriest,
v.
Respondent:
The People of the State of Colorado.
Judgment Vacated
en banc
June 1, 2021
Attorneys for Petitioner: Megan A. Ring, Public Defender Meredith K. Rose, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General William G. Kozeliski, Senior Assistant Attorney General Denver, Colorado
JUSTICE BERKENKOTTER delivered the Opinion of the Court.
1 ¶1 We review the court of appeals’ divided order in People v. DePriest, 2 No. 18CA156 (Apr. 20, 2020), summarily granting the People’s motion to dismiss 3 the defendant’s appeal from the revocation of his deferred judgment and sentence 4 as moot. We hold that the appeal is not moot because, if the defendant prevails in 5 his appeal, his conviction would be vacated, his deferred judgment and sentence 6 would be reinstated, and any sentences resulting from the improperly imposed 7 conviction would be reversed. Accordingly, we vacate the order of dismissal and 8 remand the case to the court of appeals to proceed with the appeal on the merits. 9 I. Facts and Procedural History 10 ¶2 In June 2016, Wesley Richard DePriest entered into a plea agreement in 11 which he pled guilty to third degree assault, a class 1 misdemeanor, and attempted 12 sexual assault, a class 5 felony. The trial court approved the plea agreement and 13 sentenced DePriest to a four-year deferred judgment and sentence (“DJS”) on the 14 attempted sexual assault charge and a concurrent four-year term of probation on 15 the third degree assault conviction. The terms of the DJS and probation included, 16 but were not limited to, sex offender intensive supervised probation (“SOISP”). 17 ¶3 In September 2017, DePriest’s probation officer filed a complaint alleging 18 that DePriest violated certain terms and conditions of his DJS and his 19 misdemeanor probation. Following a hearing, the trial court agreed. It revoked 20 DePriest’s DJS and his misdemeanor probation and entered the judgment of
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1 conviction on the attempted sexual assault count. The court then resentenced 2 DePriest to a five-year term of SOISP on that count, and revoked and reinstated 3 his misdemeanor probation for a concurrent five-year term. In January 2018, 4 DePriest appealed the order revoking his DJS, arguing that certain conditions of 5 the DJS were unconstitutional. 6 ¶4 While this appeal was pending, DePriest violated the terms of his SOISP. 7 Following a hearing, the trial court revoked his SOISP and sentenced him to three 8 years in prison on the attempted sexual assault conviction. DePriest did not 9 appeal the 2019 revocation of his SOISP and, instead, served his remaining time in 10 the Department of Corrections. 11 ¶5 In April 2020, the People filed a motion to dismiss DePriest’s appeal as moot, 12 arguing that, even if the court of appeals reversed the 2017 revocation of his DJS, 13 the decision would have no practical effect on DePriest because the 2019 14 revocation of his SOISP superseded the revocation of his DJS. A divided panel of 15 the court of appeals granted the People’s motion and summarily dismissed 16 DePriest’s appeal as moot. DePriest, at *1. Judge Grove dissented, concluding that 17 if DePriest were to prevail in his appeal, reversal of the trial court’s ruling would 18 have a practical effect on DePriest because his DJS would be reinstated and any 19 sentences resulting from the improperly imposed conviction would be reversed. 20 Id. at *2–3 (Grove, J., dissenting).
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1 ¶6 We granted certiorari and now vacate the division’s order of dismissal and 2 remand the case to the court of appeals to proceed with the appeal on the merits. 3 II. Analysis 4 ¶7 We begin by outlining the controlling law on the doctrine of mootness and 5 the collateral legal consequences exception to the mootness doctrine. Next, we 6 detail the law as it relates to deferred judgments and sentences. Then, applying 7 the law to the facts of this case, we conclude that, if DePriest were to prevail in his 8 appeal, reversal of the trial court’s order revoking his DJS would have a direct and 9 practical effect on him because his conviction would be vacated. It would also 10 eliminate his exposure to collateral consequences. Accordingly, we conclude that 11 DePriest’s appeal is not moot. 12 A. Legal Authority 13 1. Mootness 14 ¶8 We review de novo the question of whether an appeal is moot. See People ex 15 rel. Rein v. Meagher, 2020 CO 56, ¶ 14, 465 P.3d 554, 558. “Colorado courts invoke 16 their judicial power only when an actual controversy exists.” People in Int. of 17 Vivekanathan, 2013 COA 143M, ¶ 20, 338 P.3d 1017, 1020. When an actual 18 controversy no longer exists, an issue becomes moot because any relief granted by 19 the court would have no practical effect. Id. If an event occurs while a case is 20 pending on appeal that makes it “impossible for the court to grant ‘any effectual
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1 relief’ . . . to a prevailing party,” the appeal must then be dismissed as moot. 2 Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. 3 Green, 159 U.S. 651, 653 (1895)); see also Stell v. Boulder Cnty. Dep’t of Soc. Servs., 4 92 P.3d 910, 914 (Colo. 2004) (“[A] case is deemed moot when the relief granted by 5 the court would not have a practical effect upon an actual and existing 6 controversy.”). But, “[a]s long as the parties have a concrete interest, however 7 small, in the outcome of the litigation, the case is not moot.” Knox v. Serv. Emps. 8 Int’l Union, Loc. 1000, 567 U.S. 298, 307–08 (2012) (quoting Ellis v. Brotherhood of Ry., 9 Airline & S.S. Clerks, Freight Handlers, Exp. & Station Emps., 466 U.S. 435, 442 (1984)). 10 ¶9 Under the collateral consequences exception to the mootness doctrine, a case 11 is moot “only if it is shown that there is no possibility that any collateral legal 12 consequences will be imposed on the basis of the challenged conviction.” Sibron v. 13 New York, 392 U.S. 40, 57 (1968). Collateral consequences can include prohibitions 14 on a felon’s ability to vote and own firearms, potential sentencing as a habitual 15 criminal, possible impeachment based on prior convictions, and proscription from 16 working in certain regulated professions. Linnebur v. People, 2020 CO 79M, ¶ 28, 17 476 P.3d 734, 740; see also Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (observing 18 various collateral consequences that can stem from a conviction, including the 19 inability to serve as a juror and act as a labor union official).
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1 ¶10 Even if a sentence has been fully served, an appeal of the underlying 2 conviction is not moot if there is a possibility that the conviction will give rise to 3 collateral consequences. This is because the disabilities and burdens which may 4 flow from a conviction give the defendant “a substantial stake in the judgment of 5 conviction which survives the satisfaction of the sentence imposed on him.” 6 Carafas, 391 U.S. at 237 (quoting Fiswick v. United States, 329 U.S. 211, 222 (1946)); 7 see also, e.g., Minnesota v. Dickerson, 508 U.S. 366, 371 n.2 (1993) (noting that, even 8 though the diversionary sentence was successfully completed and the original 9 charges were dismissed, Minnesota law provided that the record of the charges 10 would be retained and used by courts in determining the merits of subsequent 11 proceedings, and those collateral consequences were sufficient to preclude a 12 finding of mootness); Sibron, 392 U.S. at 55 (“Subsequent convictions may carry 13 heavier penalties, [and] civil rights may be affected.” (quoting United States v. 14 Morgan, 346 U.S. 502, 512–13 (1954)). 15 ¶11 An appeal may be moot because the relief sought cannot be afforded 16 through the appeal. See, e.g., People v. Garcia, 89 P.3d 519, 520 (Colo. App. 2004) 17 (holding that, because the defendant appealed a condition of his sentence rather 18 than his conviction, the collateral consequences of his conviction still remained in 19 effect, and therefore his appeal was moot); People v. Garcia, 2014 COA 85, ¶¶ 12, 20 14, 356 P.3d 913, 916 (holding that the appeal was moot because the defendant had
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1 appealed his probation revocation rather than his conviction, which is what could 2 have affected his immigration status). 3 ¶12 An appeal can also become moot “because of subsequent occurrences.” 4 Brown v. Colo. Dep’t of Corr., 915 P.2d 1312, 1313 (Colo. 1996). In these types of 5 cases, a subsequent occurrence provides a defendant with the relief he or she was 6 seeking on appeal. For example, in Brown, the defendant sought either to be 7 released from confinement or to be transferred back to Colorado. Id. Because, 8 subsequent to the litigation, the defendant was transferred back to the Colorado 9 State Penitentiary, the relief he sought was satisfied, thereby rendering the appeal 10 moot. Id. at 1313–14. Likewise, in Hunt v. State Department of Corrections, 985 P.2d 11 651, 651–52 (Colo. 1999), this court held that the defendant’s claims were moot 12 because the only applicable remedy was for him to be returned to Colorado, and 13 he had already been returned subsequent to filing a petition for writ of habeas 14 corpus. 15 2. Deferred Judgment and Sentence 16 ¶13 A DJS is not a conviction and it is not a sentence. Instead, it “is a 17 dispositional alternative imposed in lieu of a judgment and sentence.” People v. 18 Anderson, 2015 COA 12, ¶ 15, 348 P.3d 491, 494. The deferred judgment statute 19 authorizes a trial court, after acceptance of a defendant’s guilty plea and upon 20 consent of all parties, “to continue the case for the purpose of entering judgment
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1 and sentence upon the plea of guilty for a period not to exceed four years for a 2 felony . . . .” § 18-1.3-102(1)(a), C.R.S. (2020). “As a condition of continuing the 3 case, the trial court is empowered to implement probation-like supervision 4 conditions that the defendant must adhere to.” Kazadi v. People, 2012 CO 73, ¶ 12, 5 291 P.3d 16, 20; see also § 18-1.3-102(2). Such conditions are established by a 6 stipulation between the defendant and the prosecution and “shall be similar in all 7 respects to conditions permitted as part of probation.” § 18-1.3-102(2). 8 ¶14 Unlike the consequence of a successfully completed probation sentence, 9 when the defendant fully complies with the conditions of the deferred judgment 10 for the prescribed period, “the plea of guilty previously entered shall be 11 withdrawn and the charge upon which the judgment and sentence of the court 12 was deferred shall be dismissed with prejudice.” Id.; accord Hafelfinger v. Dist. Ct., 13 674 P.2d 375, 377 n.3 (Colo. 1984) (After successfully completing a deferred 14 judgment, the defendant “would no longer be ‘convicted.’”). And, unlike the 15 consequence of a probation violation, a court generally has no discretion to 16 continue a deferred judgment upon finding a violation of a condition regulating 17 the defendant’s conduct. Anderson, ¶ 16, 348 P.3d at 494. Instead, the court must 18 revoke the deferred judgment and “enter judgment and impose sentence upon the 19 guilty plea.” § 18-1.3-102(2). When a defendant successfully appeals the 20 revocation of his DJS and the appellate court reverses the trial court’s order, the
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1 judgment of conviction is vacated and the DJS is reinstated. People v. Anzures, 2 670 P.2d 1258, 1260 (Colo. App. 1983). 3 B. Application 4 1. DePriest’s SOISP Sentence Did Not Supersede His DJS 5 ¶15 The People contend that DePriest’s 2019 SOISP sentence superseded his 6 2017 DJS and that DePriest could have maintained a live controversy, thereby 7 avoiding the issue of mootness altogether, by appealing the revocation of his 8 SOISP sentence. 9 ¶16 The People first assert that “following the revocation of his deferred 10 judgment, apart from having judgment entered, DePriest stood in the same 11 position as he would have had the first revocation never occurred—he was placed 12 on SOISP.” This argument acknowledges, then disregards the reason it is 13 unavailing: That is, the judgment of conviction is the very reason that DePriest is 14 not in the same position he was in before his DJS was revoked. 15 ¶17 The People next cite to People v. Fritz, 2014 COA 108, ¶ 23, 356 P.3d 927, 931, 16 for the proposition that DePriest’s 2019 SOISP sentence superseded his 2017 DJS. 17 See id. (“[B]ecause the new legal sentence necessarily supersedes the original 18 sentence, our determination of whether his sentence was illegal would not have 19 any practical effect on this case.”).
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1 ¶18 In Fritz, the defendant appealed his allegedly illegal probation sentence. 2 ¶ 10, 356 P.3d at 929. The only remedy available to Fritz in connection with his 3 appeal was the imposition of a new, legal sentence. Id. Because Fritz subsequently 4 pled guilty to a probation violation and stipulated to a new, legal sentence after 5 filing his appeal, his appeal was moot. Id. at ¶ 23, 356 P.3d at 931. That is, there 6 was no relief that the division could grant him. Id. at ¶ 11, 356 P.3d at 929. 7 ¶19 But that is not what happened in this case. Here, DePriest appealed the 8 allegedly improper revocation of his DJS, arguing that the terms of his DJS were 9 unconstitutional. He seeks not the imposition of a new, legal sentence, but rather 10 to have the entry of his conviction for attempted sexual assault vacated and his 11 DJS reinstated. 12 ¶20 Neither DePriest’s subsequent sentence to SOISP nor his subsequent 13 sentence to the Department of Corrections provide the relief he seeks. To the 14 contrary, if DePriest succeeds in his appeal, the judgment of conviction will be 15 vacated and those sentences will be reversed. Because the court of appeals can 16 afford DePriest relief if he prevails, see Anzures, 670 P.2d at 1260, his appeal— 17 unlike Fritz’s—is not moot. 18 ¶21 The People additionally claim that, in order to keep this controversy live, 19 DePriest should have appealed the 2019 revocation of his SOISP sentence. We 20 disagree. A defendant under these circumstances does not forfeit his right to
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1 appeal the allegedly unconstitutional revocation of his DJS simply because he does 2 not appeal the subsequently imposed sentence. 3 ¶22 The People’s argument also ignores the fact that the incentives for appealing 4 a DJS revocation and a SOISP sentence revocation are different. DePriest had a 5 much greater incentive to appeal the DJS revocation, which could ultimately erase 6 his felony conviction. Conversely, DePriest had less of an incentive to appeal the 7 SOISP revocation because, by 2019, the conviction had already entered and a 8 three-year prison sentence, with credit for time served, may have been a strategic 9 trade-off compared to continuing on SOISP. This is particularly true here because 10 DePriest would have completed his prison sentence long before either appeal 11 would have been resolved.
12 2. DePriest’s Subsequent SOISP Violations 13 ¶23 The People argue that DePriest’s subsequent conduct, which constituted the
14 basis for his 2019 SOISP revocation, should be considered as a sufficient, 15 independent reason to hold that his appeal is moot. The People assert that the 16 reasons underlying the 2019 SOISP revocation were unrelated to the constitutional 17 rights at issue in DePriest’s appeal and, therefore, the outcome of the appeal would 18 not alter his subsequent revocation. 19 ¶24 The People’s argument is essentially that, even if the 2017 DJS was 20 improperly revoked, it does not matter because DePriest ultimately violated his
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1 probation. We find this argument unpersuasive. It ignores the fact that DePriest 2 would not have been on probation in 2019 but for the revocation of his DJS in 2017, 3 which he is appealing now. See, e.g., Anzures, 670 P.2d at 1260 (holding that, 4 because the court of appeals reversed the denial of the defendant’s Crim. P. 35 5 motion, the trial court must “vacate the sentence imposed and . . . reinstate the 6 deferred judgment”). Additionally, though DePriest’s 2019 conduct would have 7 violated the terms of the DJS if it had still been in effect, the DJS had already been 8 revoked for two years. 9 ¶25 Moreover, the People’s argument invites us to speculate about what would 10 have happened if DePriest’s DJS was not revoked. That is a crystal ball into which 11 we decline to gaze. Not only did DePriest have different incentives in successfully 12 completing his probation, as we note above, but he also arguably lacked notice 13 that his conduct would violate his DJS because he believed it to be, and it had been, 14 in fact, revoked. 15 3. Collateral Consequences Attend DePriest’s Conviction 16 ¶26 Finally, to determine if DePriest’s appeal of the revocation of his DJS is 17 moot, we examine whether there is any possibility that any collateral 18 consequences may flow from his challenged conviction. Moland v. People, 757 P.2d 19 137, 139 (Colo. 1988). That is, we look to the practical consequences that would 20 result if the court of appeals reached the merits of DePriest’s appeal and ruled in
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1 his favor. Here, because the trial court revoked DePriest’s DJS and entered the 2 judgment of conviction for attempted sexual assault, DePriest has a felony 3 conviction on his record. He faces the various collateral consequences associated 4 with that conviction, including his potential inability to own firearms, work in 5 certain professions, and act as a labor official. See Carafas, 391 U.S. at 237; Linnebur, 6 ¶ 28, 476 P.3d at 740. He may also possibly face impeachment based upon the 7 prior conviction and possibly be sentenced as a habitual criminal in subsequent 8 criminal cases. Linnebur, ¶ 28, 476 P.3d at 740. Thus, a decision by the court of 9 appeals on the merits of DePriest’s appeal, if favorable, could have a real and 10 practical legal effect on DePriest. 11 III. Conclusion 12 ¶27 Because DePriest faces direct and collateral consequences from the 13 revocation of his DJS and the entry of the judgment of conviction, the division 14 erred in dismissing his appeal as moot. Accordingly, we vacate the order of 15 dismissal and remand the case to the court of appeals to proceed with the appeal 16 on the merits. 17