The PEOPLE of the State of Colorado, Petitioner-Appellee IN the INTEREST OF C.M.D., Juvenile-Appellant.
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Mesa
County District Court No. 15JD140, Honorable Thomas M.
Deister, Judge, Honorable William T. McNulty, Magistrate
Cynthia
H. Coffman, Attorney General, Joseph G. Michaels, Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee
Megan
A. Ring, Colorado State Public Defender, Ryann S. Hardman,
Deputy State Public Defender, Denver, Colorado, for
Juvenile-Appellant
OPINION
VOGT,
JUDGE.[*]
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[¶
1] C.M.D. was adjudicated delinquent based on an
incident involving unlawful sexual contact. At sentencing, he
was ordered to register as a sex offender under the Colorado
Sex Offender Registration Act (CSORA), § § 16-22-101 to -115,
C.R.S. 2018. Because C.M.D. had a previous adjudication for
unlawful sexual contact, the magistrate was statutorily
precluded from waiving the registration requirement, and
C.M.D. is not eligible to petition to discontinue the
registration.
[¶
2] On appeal, C.M.D. contends that, as applied to
him and similarly situated juveniles, the CSORA violates
constitutional prohibitions against cruel and unusual
punishment and constitutional due process rights. Under the
circumstances of this case, we disagree. We therefore affirm
the order requiring C.M.D. to register as a sex offender.
I.
Background
[¶
3] At the time of the incident giving rise to the
order, C.M.D. was serving a sentence in the Department of
Youth Corrections (DYC) based on prior adjudications, one of
which was also for unlawful sexual contact. Although the
incident was reported to have occurred when C.M.D. was
seventeen and a half years old, the petition in delinquency
was not filed until one year later, when C.M.D. was eighteen
and a half.
[¶
4] The petition alleged that C.M.D. had committed
unlawful sexual contact against another DYC resident, who was
then seventeen. C.M.D. had reported the incident to his case
manager, stating that he "grabbed a girls ass" and
that he did it because he "felt aroused and couldnt
help himself." The victim told law enforcement personnel
that she had been in a transport van with C.M.D. and another
girl on the way to court appearances. In the elevator at the
courthouse, she felt C.M.D.s hand brush her bottom, but was
not sure if it was intentional. She then said that
[w]hen they were leaving court getting ready to get back in
the transport van, she did not want to sit next to C.M.D. ...
[H]e kept touching her back throughout the drive.
She told him to stop several times and he did not stop. He
was only touching her back at this point, but this made her
mad and uncomfortable.
When they arrived back at DYC ... C.M.D. scooted closer to
[her], [and] grabbed her butt two times.
[¶
5] The People filed a petition in delinquency
alleging that C.M.D. had committed an act which, if committed
by an adult, would constitute misdemeanor unlawful sexual
contact under section 18-3-404(1)(a), C.R.S. 2018. In
exchange for dismissal of the charge, C.M.D. pleaded guilty
to third degree assault, § 18-3-204(1)(a), C.R.S. 2018, with
an underlying factual basis of unlawful sexual contact. The
court sentenced C.M.D. to up to six months in the custody of
the DYC, the sentence to run concurrent with his sentences in
four other cases. C.M.D. acknowledged at the plea hearing
that he knew he would be required to register as a sex
offender.
[¶
6] As noted, this was not C.M.D.s first
adjudication for an offense with an underlying factual basis
of unlawful sexual contact. He had previously been
adjudicated for sexually assaulting his sister over the
course of three to five years, beginning when she was
approximately four years old and he was approximately six
years old. The conduct giving rise to the adjudication
included forced oral sex, digital penetration of the vagina,
and attempted penile-vaginal intercourse. At sentencing in
this case, the magistrate noted that he had no discretion to
decline to impose the sex offender registration requirement,
and then commented:
Even if Id had discretion, I would feel somewhat conflicted
about not requiring [C.M.D.] to register.... [C]onsidering
some of the factors if I were allowed to under [section
16-22-103(5)(a) ], considering that, certainly lifetime
registration
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would seem unfairly punitive under these circumstances.
But, its not the adjudication for this offense that makes it
unfairly— that makes it lifetime. Its the— of
course, the existence of the other offense. But, the risk to
the community may require that registration. And so, if I had
that discretion, Im not sure that I would actually go—
and exercise that discretion.
[¶
7] C.M.D. petitioned for district court review of
the magistrates order, arguing, among other things, that
requiring him to register as a sex offender amounted to cruel
and unusual punishment. The district court disagreed, citing
cases holding that the requirement to register is not
punishment, and adding:
However, even if the requirement to register were punishment,
such a requirement here would neither be unfairly punitive
nor cruel and unusual because of the Juveniles prior
adjudication for unlawful sexual behavior. With two
adjudications for this type of behavior, community safety
requires registration. Such conclusion is necessary because
the statute ...