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People v. McCulley

Court of Appeals of Colorado, First Division

June 28, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Brian Keith McCulley, Defendant-Appellant.

          Larimer County District Court No. 00CR185 Honorable Daniel J. Kaup, Judge.

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for Defendant-Appellant.

          OPINION

          WELLING JUDGE.

         ¶ 1 Section 16-22-113(3)(c), C.R.S. 2017, of the Colorado Sex Offender Registration Act (SORA) provides that "[a]ny adult who has more than one conviction . . . for unlawful sexual behavior" is not eligible to petition for removal from the sex offender registry. This case presents an issue of first impression: Does the term "conviction" as used in subsection 113(3)(c) of SORA include a successfully completed deferred judgment? Because we answer this question "yes," we affirm the trial court's order denying the petition to deregister.

         I. Background

         ¶ 2 In 2000, the People charged the defendant, Brian Keith McCulley, with two counts of felony sexual assault, both of which were crimes involving unlawful sexual behavior. Months later, McCulley entered into a split plea agreement whereby he pleaded guilty to one count of second degree sexual assault, a class 4 felony, and one count of third degree sexual assault, a class 1 misdemeanor.[1]

         ¶ 3 Pursuant to the plea agreement, which the trial court approved, McCulley received a four-year deferred judgment on the felony charge and a probation sentence on the misdemeanor charge. The only condition of his probation sentence was that he comply with the terms of the deferred judgment. Under the terms of McCulley's plea agreement, the trial court would dismiss the felony charge once McCulley complied with his deferred judgment, but he would stand convicted of the misdemeanor after having successfully completed his probation sentence. That is exactly what occurred. In 2004, McCulley completed his deferred judgment, the felony charge was dismissed, and at the same time he completed probation on the misdemeanor charge.

         ¶ 4 As a condition of his deferred judgment, McCulley was required to register as a sex offender. See § 16-22-103(2)(a), C.R.S. 2017. In 2016, McCulley filed a petition to discontinue the requirement that he register as a sex offender. The trial court denied McCulley's petition despite the fact that he had successfully completed his deferred judgment. The trial court reasoned that the statute defines the term "conviction" to include having a deferred judgment, McCulley had two convictions, and an individual who has more than one conviction for unlawful sexual behavior is ineligible for an order discontinuing the registration requirement.

         II. Analysis

         ¶ 5 McCulley's sole argument on appeal is that the trial court erred by construing the term "conviction" under SORA to include a successfully completed deferred judgment. We disagree because we conclude that the plain language of SORA dictates that a deferred judgment is a "conviction" as used in section 16-22-113(3)(c).

         A. Standard of Review

         ¶ 6 Our goal when interpreting a statute is to effectuate the General Assembly's intent. Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To do that, we first look to the statute's language, giving words and phrases their plain and ordinary meaning. Peoplev. Padilla-Lopez, 2012 CO 49, ¶ 7. If the statute's plain language unambiguously indicates the legislature's intent, we apply the statute as written. Martin, 27 P.3d at 851. When the statute is ambiguous, however, we may "rely on other factors, such as legislative history, prior law, the ...


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