v. McCulley

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 28, 2018

2018COA90

No. 16CA1787, People v. McCulley — Criminal Law — Sex
Offender Registration — Petition for Removal from Registry

A defendant who pleaded guilty to two crimes involving

unlawful sexual behavior but later had one of those charges

dismissed after successfully completing his deferred judgment

petitioned the trial court for an order allowing him to discontinue

the requirement that he register as a sex offender. The trial court

denied the defendant’s petition because section 16-22-113(3)(c),

C.R.S. 2017, of the Sex Offender Registration Act dictates that an

individual who has more than one conviction for unlawful sexual

behavior is ineligible for such an order. A division of the court of

appeals affirms the trial court’s denial, holding, as a matter of first

impression, that the term “conviction” as used in section 16-22-

113(3)(c) includes a successfully completed deferred judgment. In
so concluding, the division distinguishes this case from People v.

Perry, 252 P.3d 45 (Colo. App. 2010), which interpreted “is

convicted” in section 16-22-113(3)(b) to exclude a successfully

completed deferred judgment.
COLORADO COURT OF APPEALS 2018COA90

Court of Appeals No. 16CA1787
Larimer County District Court No. 00CR185
Honorable Daniel J. Kaup, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Keith McCulley,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE WELLING
Taubman and Bernard, JJ., concur

Announced June 28, 2018

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
¶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

1The two counts that McCulley pleaded guilty to were separate
criminal episodes. Although both counts involved the same victim,

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

according to the plea, the felony occurred in February 1998, and
the misdemeanor occurred in August 1995.

2
 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. People

v. 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 consequences of a given

3
 construction of the statute, and the end to be achieved by the

statute, to determine the meaning of a statute.” Id.

B. Meaning of “Conviction” in Subsection 113(3)(c)

¶7 A defendant who successfully completes his deferred judgment

may petition the court for an order discontinuing the requirement

that he register as a sex offender. § 16-22-13(1)(d).2 But that

provision has an exception. An adult defendant is ineligible for an

order discontinuing his registration requirement if he “has more

than one conviction or adjudication for unlawful sexual behavior in

this state or any other jurisdiction.” § 16-22-113(3)(c).

¶8 Resolution of this appeal turns on the meaning of the word

“conviction” in subsection 113(3)(c). It is undisputed that the felony

charge against McCulley was dismissed when he successfully

completed the deferred judgment, and that, as of the time of his

petition to deregister, he stood convicted of just the misdemeanor

2 In addition to successfully completing the deferred judgment, the
defendant must not have been subsequently convicted of a crime
involving unlawful sexual behavior and the court must not have
issued an order continuing the requirement that the defendant
register. § 16-22-103(1)(a), C.R.S. 2017. There is no dispute that
McCulley did not commit a subsequent qualifying offense and that
the court did not issue an order continuing the requirement that he
register.

4
 charge. So, if the term “conviction” does not include a successfully

completed deferred judgment, McCulley would have only one

conviction, and section 16-22-113(3)(c) would not bar the relief he

seeks. But SORA’s plain language belies McCulley’s interpretation.

¶9 SORA defines “conviction” as follows:

As used in [SORA], unless the context
otherwise requires:

....

(3) “Convicted” or “conviction” means having
received a verdict of guilty by a judge or jury,
having pleaded guilty or nolo contendere,
having received a disposition as a juvenile,
having been adjudicated a juvenile delinquent,
or having received a deferred judgment and
sentence or a deferred adjudication.

§ 16-22-102, C.R.S. 2017 (emphasis added).

¶ 10 By its plain language, the term “conviction” as used in

subsection 113(3)(c) includes having received a deferred judgment.

See § 16-22-102(3). And there is no exception in that definition for

a successfully completed deferred judgment. See Dubois v.

Abrahamson, 214 P.3d 586, 588 (Colo. App. 2009) (“[T]he General

Assembly could have drafted section 16-22-102(3) to define

‘convicted’ as ‘having received, and failed to successfully complete, a

5
 deferred judgment and sentence,’” but it did not.). Moreover, there

is nothing in the language or context of the statute to suggest that

this definition of “conviction” does not apply to subsection 113(3)(c).

See People v. Molina, 2017 CO 7, ¶ 17 (courts must apply the

statutory definition of terms absent clear intent to the contrary).

¶ 11 McCulley pleaded guilty to two crimes involving unlawful

sexual behavior. While he received, and completed, a deferred

judgment for one of those crimes, subsection 113(3)(c) treats that

deferred judgment in the same manner as it treats any other

conviction. And because the statute treats them the same,

McCulley has more than one conviction and subsection 113(3)(c)

renders him ineligible for an order discontinuing the requirement

that he register as a sex offender.3

3 In this case, McCulley’s two crimes arose from discrete criminal
episodes. See supra n.1; see also People v. Atencio, 219 P.3d 1080,
1081 (Colo. App. 2009) (“So long as a person has been convicted of
more than one charge of unlawful sexual behavior, whether those
charges were adjudicated in the same case or in separate cases is
irrelevant: the adjudications are multiple convictions which render
the person ineligible for relief under []section 16-22-113(1)[, C.R.S.
2017].”). And McCulley does not contend otherwise. We express no
opinion, however, on whether a deferred judgment arising out of the
same criminal episode as another conviction qualifies as a separate
“conviction” for the purposes of section 16-22-113(3)(c).

6
¶ 12 Relying on People v. Perry, 252 P.3d 45 (Colo. App. 2010),

McCulley argues that the term “conviction” does not include a

deferred judgment. In Perry, a division of this court addressed a

different subsection of section 16-22-113(3) — namely, subsection

(b). 252 P.3d at 47. Subsection 113(3)(b) provides that a person

who “is convicted” of sexual assault on a child, among five other

enumerated offenses, is ineligible for an order discounting the

registration requirement. The division in Perry concluded that the

term “is convicted” in that subsection does not include a

successfully completed deferred judgment. 252 P.3d at 49. But the

division in Perry premised its conclusion on the fact that the

definition of “convicted” from section 16-22-102(3), which includes

“having received a deferred judgement,” applies “unless the context

otherwise requires.” § 16-22-102. And in Perry, such a context

existed.

¶ 13 To understand why Perry is distinguishable, a brief review of

the division’s statutory analysis is helpful. Pursuant to section 16-

22-108(1)(d)(I), C.R.S. 2017, a person convicted of felony sexual

assault “has a duty to register for the remainder of his or her

natural life; except that, if the person receives a deferred judgment

7
and sentence,” he or she may petition the court pursuant to section

16-22-113 for discontinuation of the duty to register. Based on this

relationship between sections 16-22-108(1)(d) and 16-22-113(3)(b),

the division in Perry observed as follows:

If the words “is convicted” in section 16-22-
113(3)(b)(II) are understood to mean that a
person “having received a deferred judgment”
(under section 16-22-102(3)) only stands
“convicted” until “the successful completion of
the deferred judgment and sentence . . . and
dismissal of the case” (under section 16-22-
113(1)(d)), then none of [the six subsections of
section 16-22-113(3)(b)] is at odds with the
plain language of section 16-22-108(1)(d)(I).

252 P.3d at 49. In other words, if the definition of “is convicted” in

subsection 113(3)(b) includes a successfully completed deferred

judgment for a crime enumerated in that subsection, one could

never obtain the relief outlined in section 16-22-108(1)(d) because

section 16-22-113(3)(b) would always bar such relief. 252 P.3d at

49. Thus, the Perry division concluded that the context of

subsection 113(3)(b) requires the exclusion of a successfully

completed deferred judgment from the definition of “is convicted,”

holding that such an “interpretation avoid[s] the needless creation

8
 of a statutory conflict.” Id. The division in Perry further noted that

its interpretation

is also the most logical because (1) it
acknowledges that the General Assembly’s use
of the words “is convicted” was a deliberate
decision to speak in the present tense, rather
than referring to persons who had been
previously convicted of an enumerated
disqualifying offense; and (2) it is consistent
with precedent analyzing when, in other
contexts, a deferred judgment constitutes a
“conviction.”

Id.

¶ 14 But the contextual concerns that animated the holding in

Perry simply do not arise with respect to subsection 113(3)(c)

because that subsection operates differently than does subsection

113(3)(b). Subsection 113(3)(c) provides that a court may not issue

an order discontinuing the registration requirement for an

individual who “has more than one conviction” for unlawful sexual

behavior. Including a deferred judgment within the meaning of

“conviction” for that subsection in no way affects section 16-22-

108(1)(d) or any other provision of SORA. Therefore, unlike the

situation in Perry, subsection 113(3)(c) does not provide the context

required to depart from the statutory definition.

9
¶ 15 Nevertheless, McCulley argues that the word “has” in the

phrase “has been convicted” shows that the General Assembly

intended to speak in the present tense, and is akin to the word “is”

relied on in Perry. According to McCulley, he was convicted of the

felony only during the four years that he was completing his

deferred judgment, but he no longer “has” the felony conviction

because he successfully completed the deferred judgment. But as

discussed above, for the purposes of subsection 113(3)(c),

conviction means “having received a deferred judgment.” § 16-22-

102(3). Successfully completing his deferred judgment does not

change the fact that McCulley “received a deferred judgment” in

connection with his guilty plea to the felony. Id. So, even though

there may be some situations where a deferred judgment is not

treated like a conviction, see, e.g., M.T. v. People, 275 P.3d 661, 663

(Colo. App. 2010) (“[A] defendant who enters but later withdraws a

guilty plea in a deferred judgment case once was convicted,” but is

no longer after withdrawing his plea), aff’d, 2012 CO 11, subsection

113(3)(c) treats a prior deferred judgment in the same manner it

would treat a conviction resulting from any other basis. And we are

not persuaded that the context requires otherwise.

10
 III. Conclusion

¶ 16 The trial court’s order denying McCulley’s petition for

discontinuation of the requirement that he register as a sex offender

is affirmed.

JUDGE TAUBMAN and JUDGE BERNARD concur.

11