dissenting.
In my view, the majority places undue reliance on dictum in Hafelfinger v. District Court, 674 P.2d 375 (Colo.1984), to create a test of whether, following successful completion of a deferred sentence, a conviction is "extant." Instead, I believe the proper question to be whether successful completion of a deferred sentence voids the conviction ab initio, as was held in Weber v. Colorado State Board of Nursing, 830 P.2d 1128 (Colo.App.1992). Therefore, and with respect, I dissent.
I agree with the majority that section 24-72-308(1)(a), C.R.98.2009, provides for sealing of criminal records where, as relevant here, a charge has been "completely dismissed," that successful completion of a deferred sentence under section 18-1.3-102(2), C.R.S.2009, leads to such complete dismissal, and that under section 24-72-808(8)(c), records "pertaining to a conviction" cannot be sealed if the factual basis of the offense, as here, involves unlawful sexual behavior. I disagree with the majority because, in my view, "[ujpon full compliance with such conditions [of the deferred sentence] by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice," section 18-1.3-102(2), means that the convietion has been wiped away. In cases where no trial has occurred, without a guilty plea there can be no conviction. Therefore, the absence of a conviction removes any basis for invoking section 24-72-8088)(c).
In Hafelfinger, 674 P.2d at 377 n. 3, the court explained, "The question of whether a person has a record of 'conviction' ... after successfully completing the period of the deferred sentence is not before us." Hence, the remaining discussion of "conviction" in note 3 is dictum, on which I would not rely. See McCallum Family L.L.C. v. Winger, 221 P.3d 69 (Colo.App.2009) (statement by supreme court "is mere dictum which is not binding on us.").
The other cases on which the majority primarily relies are likewise distinguishable. See People v. French, 165 P.3d 836 (Colo.App.2007) (deferred judgment not completed); People v. Vollentine, 643 P.2d 800 (Colo.App.1982) (same); People v. Allaire, 843 P.2d 38 (Colo.App.1992) (deferred judgment revoked).
Like M.T. here, but unlike the defendant in Hafelfinger, the nurse in Weber had completed her deferred sentence. The division rejected the Board's attempt to impose discipline under section 12-38-117(1)(b) based on her having been convicted of the felony on which judgment had been deferred. It explained: "following the successful completion of a deferred judgment, there no longer exists a plea of guilty to a felony, and there never existed a judgment of conviction." 880 P.2d at 1183.
I am unpersuaded by the majority's assertion that "if the statutory exception did not cover cases in which there onee was (but no longer is) a conviction, cases involving sex offenses would be treated no differently than any other cases." As relevant here, records pertaining to convictions can be sealed only if the case has been "completely dismissed." § 24-72-308(1)(a)(I). Under section 24-72-308(8)(c), records in sex offense cases that have been "completely dismissed" for any reason other than successful completion of a deferred judgment could not be sealed.
Nor am I persuaded by the cross reference in section 24-72-308(8)(c) to section 16-22-102(9), which defines "unlawful sexual behavior." Had the General Assembly intended to adopt the definition of "conviction" in section 16-22-102(8), which includes "a deferred judgment," it could have done so by broadening the cross reference. See Turbyne v. People, 151 P.3d 563, 567 (Colo.2007) ("We do not add words to the statute. ...").
Accordingly, I would affirm the district court, albeit on somewhat different grounds.