The People of the State of Colorado, Petitioner-Appellee, In the Interest of C.M.D., Juvenile-Appellant.
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
A. Ring, Colorado State Public Defender, Ryann S. Hardman,
Deputy State Public Defender, Denver, Colorado, for
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
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.
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 girl's ass"
and that he did it because he "felt aroused and
couldn't 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
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
Even if I'd 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 would seem unfairly punitive under
But, it's not the adjudication for this offense that
makes it unfairly - that makes it lifetime. It's 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, I'm not sure that I would actually go -
and exercise that discretion.
7 C.M.D. petitioned for district court review of the
magistrate's 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 Juvenile's 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 specifically permits the exception for only
someone who has no prior for this type of behavior.
Cruel and Unusual Punishment
8 C.M.D. contends that mandatory, lifetime sex offender
registration under CSORA violates federal and state
constitutional prohibitions against cruel and unusual
punishment, as ...