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People v. Al-Turki

Court of Appeals of Colorado, Fourth Division

April 6, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Homaidan Al-Turki, Defendant-Appellant.

         Arapahoe County District Court No. 05CR1571 Honorable J. Mark Hannen, Judge

          Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Davis Graham & Stubbs, LLP, Michael J. Gallagher, Chad D. Williams, Kyle W. Brenton, Denver, Colorado, for Defendant-Appellant

          OPINION

          HAWTHORNE JUDGE

         ¶ 1 This case presents only one question: Is a defendant who is subject to section 18-1.3-406(1)(b), C.R.S. 2016, because he or she committed a crime of violence and a sex offense under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001 to -1012, C.R.S. 2016, eligible to have his or her sentence to the custody of the Department of Corrections for an indeterminate term of incarceration modified to probation under section 18-1.3-406(1)(a)? Based on our supreme court's opinion in Chavez v. People, 2015 CO 62, we conclude that the answer to this question is no. So, we affirm the district court's order denying defendant Homaidan Al-Turki's motion to reduce his sentence under Crim. P. 35(b).

         I. Procedural History

         ¶ 2 As relevant here, Al-Turki was convicted under the LSA of twelve counts of unlawful sexual contact through use of force, intimidation, or threat, a class 4 felony as defined by section 18-3-404(2)(b), C.R.S. 2016. The district court ultimately sentenced him to indeterminate prison terms of six years to life on the unlawful sexual contact convictions. The prosecution appealed this sentence and a division of this court affirmed. See People v. Al-Turki, (Colo.App. No. 11CA1247, Aug. 9, 2012) (not published pursuant to C.A.R. 35(f)). Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under section 18-1.3-406(1)(a). After a three-day evidentiary hearing, the district court denied the motion, concluding that it did not have authority to modify Al-Turki's sentence because he was not eligible for probation under section 18-1.3-406(1)(a).

         II. Sentence Modification

         ¶ 3 Al-Turki contends that he is eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, section 18-1.3-406(1)(b), modified to probation under section 18-1.3-406(1)(a). We disagree.

         ¶ 4 We review statutory interpretation questions de novo. People v. Bohn, 2015 COA 178, ¶ 9.

         ¶ 5 The mandatory sentencing for violent crimes statute, section 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses and those that do not involve sex offenses. Section 18-1.3-406(1)(a) governs crimes of violence generally (i.e. non-sex offenses), and allows the court to modify a sentence for a term of incarceration to probation in limited circumstances. § 18-1.3-406(1)(a) ("[T]he court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence . . . [and] [s]uch modification may include probation if the person is otherwise eligible therefor.").

         ¶ 6 Section 18-1.3-406(1)(b) governs crimes of violence involving sex offenses and contains no similar "modification" language. And, it provides that defendants convicted of a sex offense that is a crime of violence shall be sentenced to an indeterminate term of incarceration. Id. ("Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense, as defined in section 18-1.3-1003(5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration . . . .").

         ¶ 7 Al-Turki argues that his indeterminate term of incarceration sentence is governed by both section 18-1.3-406(1)(a) and (1)(b). He reads section 18-1.3-406(1)(a) as governing all crimes of violence, even those that are sex offenses. To do so, he interprets the phrase in the first sentence of section 18-1.3-406(1)(b), "[n]otwithstanding the provisions of paragraph [(1)](a), " as meaning subsection (1)(b) is a limited exception to subsection (1)(a). He therefore reads section 18-1.3-406(1)(b) to only modify subsection (1)(a) where the two sections conflict, namely, as to the directive in subsection (1)(a) that the sentencing court impose a determinant aggravated sentence.

         ¶ 8 But, our supreme court, in Chavez, interpreted section 18-1.3-406(1)(b) and concluded that a crime-of-violence sex offender is not eligible for probation.[1] There, the defendant was convicted of a per se crime of violence sex offense that required the sentencing court to impose a sentence "in accordance with" the crime-of-violence scheme. § 18-3-405.3(4), C.R.S. 2016. The defendant argued that he was probation-eligible because he was subject to the LSA and it allowed for probation. See § 18-1.3-1004(2), C.R.S. 2016.

         ¶ 9 The supreme court held that the defendant was not probation-eligible because, even though he was subject to the LSA, which allows for probation, he was also subject to the mandatory crime-of-violence enhancement, and "[t]his forecloses probation." Chavez, ¶ 19. The court explained that the LSA required the defendant to serve an indeterminate sentence, the crime-of-violence statute required that he serve it in prison, and the LSA did not change that. Id. The court also explained that because the defendant "committed a crime of violence and a sex offense, [the defendant] is subject to section 406(1)(b), not the general, non-sex-offense section of 406(1)(a)." Id. at ¶ 20. It emphasized that section 18-1.3-406(1)(b) requires that defendants convicted of violent sexual offenses "shall be sentenced to the department of corrections for an indeterminate term of incarceration." Id. Thus, the defendant "[could] not be eligible for probation because 'incarceration' means 'imprisonment, confinement in a jail or penitentiary, ' . . . and '"shall" indicates that [a] term is mandatory.'" Id. (citations omitted).

         ¶ 10 Like the defendant in Chavez, Al-Turki was convicted of a per se crime of violence sex offense that required the sentencing court to impose a sentence "in accordance with" the crime-of-violence scheme. § 18-3-405.3(4). He is subject to the LSA because he stands convicted of a sex offense committed after November 1, 1998. See §§ 18-1.3-1003(4), -1003(5)(a)(III)(A), -1012, C.R.S. 2016. And, because he committed a crime of violence and a sex offense, he is subject to section 18-1.3-406(1)(b), not the general, non-sex-offense section of 18-1.3-406(1)(a). Chavez, ¶ 20.

         ¶ 11 Because these circumstances are the same as the defendant's in Chavez, Al-Turki is foreclosed from probation and the provisions in section 18-1.3-406(1)(a) allowing the court to modify a determinate term of incarceration to probation are not available to him. See id. at ¶ 21 (concluding that, as to LSA sex offender defendant, "the crime-of-violence enhancement makes [defendant] ineligible for probation").

         ¶ 12 We recognize that Al-Turki's request to modify his original indeterminate term of incarceration to probation is different from the defendant's request in Chavez that he be sentenced initially to probation rather than an indeterminate term of incarceration. Nonetheless, our conclusion that Chavez mandates that Al-Turki is ineligible for probation is unaltered by this difference. The supreme court's sweeping and unqualified language in Chavez answers negatively the question whether a crime-of-violence sex offender's mandatory sentence to an indeterminate term of incarceration can later be modified to probation.[2] Id.

         ¶ 13 The district court did not err in concluding that section 18-1.3-406(1)(b) precluded it from modifying Al-Turki's sentence to probation.

         III. Conclusion

         ¶ 14 The district court's order is affirmed.

          JUDGE ROMAN concurs.

          JUDGE HARRIS dissents.

         ¶ 15 Defendant Homaidan Al-Turki raised two distinct claims on appeal. First, he contended that his convictions for unlawful sexual contact were not crimes of violence under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001 to -1012, C.R.S. 2016, and, therefore, he was eligible for an initial sentence to probation under the LSA, see § 18-1.3-1004(2)(a), C.R.S. 2016. Second, and in the alternative, he contended that, even if his convictions were per se crimes of violence that subjected him to sentencing under the crime of violence statute, section 18-1.3-406, C.R.S. 2016, the district court could modify his sentence of imprisonment to a probationary sentence. This was true, he argued, because the LSA did not change crime of violence sentencing for sex offenders other than to mandate indeterminate sentencing. Modification to probation was authorized for violent sex offenders prior to enactment of the LSA and, therefore, the modification continued to be authorized post-LSA.

         ¶ 16 During the pendency of the appeal, our supreme court issued its opinion in Chavez v. People, 2015 CO 62. Chavez forecloses Al-Turki's first argument, but it does not address the second. The majority opinion carefully and persuasively explains why Al-Turki was not eligible for an initial sentence to probation under section 18-1.3-1004(2) or section 18-1.3-406. But it then assumes, without additional argument or evidence, that the same reasoning supports the entirely separate conclusion that section 18-1.3-406 does not authorize a subsequent modification of Al-Turki's sentence below the aggravated range. My examination of the language, history, and purpose of the statutes, as well as the relevant ...


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