dissenting.
As a basic principle, I strongly agree with the proposition that people should say what they mean and mean what they say. The criminal law breathes life into this proposition by requiring that prosecutors, as representatives of the government, must almost always be held to the promises they make when entering into plea dispositions.
*1026But, "almost always" is not always. There are two exceptions to this paradigm, which are pointed out in the majority's opinion. I think that one of those, the imposition of an illegal sentence, is present here.
I would conclude that the trial court's ultimate decision declining to require defendant to participate in treatment resulted in an illegal sentence. I believe that the trial court made two legal mistakes that led to the illegal sentence. First, it relied on the wrong statute to conclude that defendant's guilty plea here disqualified him from the requirement that sex offenders participate in treatment. Second, once the trial court ordered and received the second evaluation, it is my view that the court was compelled to require defendant to participate in modified sex-offender treatment as a condition of probation.
I recognize that the road to the resolution of this appeal contains at least three exits that, if taken, would seem, upon initial consideration, to support the trial court's ultimate decision. First, the trial court's ultimate decision was merely a common, unremarkable exercise of judicial discretion. Second, the prosecution made a promise to take no position at sentencing, which it kept in the first sentencing hearing, but subsequently broke in a subsequent hearing. Third, courts should not change the conditions of probation if the reason for the change was known before the initial conditions were set.
However, although these exits may appear to lead to the proper destination, I am convinced by the factual and legal cireumstances present in this case that they do not. Therefore, for the reasons expressed below, I respectfully dissent.
I. Trial Court's Discretion
From my perspective, once the results of and recommendation in the second evaluation were before the court, the relevant law required the court to disregard the first evaluation, to rely upon the second, and to impose treatment as a condition of probation. When it did not, it imposed an illegal sentence.
A. Sex Offender Treatment Statutes and Hernandez
Pedophiles represent a serious and continuing threat to the safety of children. Spurred by this legitimate and compelling concern, the General Assembly enacted a legislative scheme that is carefully designed to diagnose, treat, and, if necessary, incarcerate sex offenders. It is my view that the outcome of this appeal is governed by the series of statutes and the supreme court's opinion in Hernandez v. People, 176 P.3d 746, 752-55 (Colo.2008), which are accurately summarized in the majority's opinion.
Here, defendant was originally charged with several counts, which involved oral and anal sex with a thirteen-year-old boy and oral sex with an eleven-year old boy. In addition to grooming the sixteen-year-old boy for sexual purposes while incarcerated in the community corrections facility, defendant engaged in unsanctioned sexual conduct with other group members, and he never completed his sex offender treatment program.
Defendant escaped from the facility in 1998. He was apprehended; he pled guilty to the felony of attempted escape; his original sentence was converted to a prison sentence; and the court added a consecutive two-year sentence for the attempted escape conviction.
Defendant was paroled late in December in 2003. He enrolled in a second sex offender treatment program. He was discharged from this program, prior to completion, because he violated its conditions by repeatedly viewing pornography and having several unauthorized contacts with minors at a church. In an April 2006 letter, a therapist who treated defendant in this program wrote that defendant was a pedophile who posed a significant risk to molest children in the future. Defendant's parole was revoked and he was discharged unsuccessfully, partially because he did not complete sex offender treatment.
B. Defendant Was a Sex Offender
In the course of declining to require defendant to participate in treatment, the court stated that the misdemeanor conviction for failure to register was not "a sex-offender *1027offense." Referring to sections 18-1.3-908(5) and 18-1.3-1007(1.5), C.R.S.2009, the trial court concluded that, because the offense presently before the court was not a felony, defendant was not a sex offender, and therefore treatment was not required.
This was a mistake of law because the trial court relied on the wrong statutes to reach this conclusion. Section 18-1.8-903(5) generally defines a "sex offender" as "a person convicted of a sex offense" for purposes of sentencing sex offenders. Section 18-1.3-1007(1.5) requires that persons convicted of a felony for failing to register as a sex offender "participate, as a condition of probation ... in the intensive supervision probation program."
However, section 16-11.7-105(1), C.R.S. 2009 specifically mandates that every sex offender placed on probation "shall be required ... to undergo treatment to the extent appropriate to such offender based upon the recommendation of the evaluation and identification made pursuant to section 16-11.7-104." Therefore, the definition of "sex offender" relevant to this discussion is found in section 16-11.7-102@)(a)(ID), (8)(d), C.R.S. 2009, not in sections 18-1.3-908(5) and 18-1.3-1007(1.5). See § 2-4-205 (special provisions normally prevail over general provisions); Martin v. People, 27 P.3d 846, 852 (Colo.2001) (same).
Under the proper definition, a "sex offender" is, as pertinent here, someone who has been previously convicted of sexual assault on a child. Defendant fell into this category because he had previously committed such an offense, and he was a sex offender for purposes of section 16-11.7-105(1).
C. Application of the Statutes and Hernandes
The trial court was confronted here with two sex offender evaluations. The first did not recommend treatment; the second did. It is my view that, in light of the statutory scheme as it has been interpreted by Hernandez, the second evaluation trumped the first. This is because the second evaluation contained (1) information about defendant's conduct since his original conviction indicating that he represented a risk of recidivism; and (2) a recommendation that defendant be required to undergo a modified course of treatment that would allow him to "test out" of treatment that he did not need.
The discussion of the statutory scheme in Hernandez provides me with a basis for "breaking the tie" created by the different recommendations in the two evaluations. Initially, the first evaluation was defective because it violated several aspects of the SOMB standards.
Specifically, the evaluation was prepared before the plea, and, therefore, it fell outside the standards' requirement that an evaluation be prepared after a plea. Further, the evaluation was based only on defendant's de-seriptions of his original conviction and the recent crime, rather than on the police reports that were generated as a result of those offenses. See Colo. Sex Offender Mgmt. Bd., Standards and Guidelines for the Treatment, Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders 22-25 (Mar.2008), available at http://dej.state.co.us/odvsom/Sex_ Offender/8O._Pdfs/2008% 20Adult% 208tan-dards% 20FINAL .pdf.
Second, the relevant statutes "tightly constrain" the trial court's discretion, focusing a trial court's decision-making on curtailing recidivism, protecting victims, and recognizing that sex offenders are "extremely habituated."
Third, the statutory scheme strongly favors the imposition of treatment. It accomplishes this goal by requiring trial courts to order sex offenders to undergo treatment when treatment is supported by the evaluation and its recommendations, and the facts of the case presently before the court.
Here, the second evaluation, not the first, was in line with the statutory scheme. Its contents, which I would presume under the statutes and Hernandes to be more reliable because they were generated consistently with the SOMB standards, indicate that defendant is an extremely habituated sex offender who poses a risk to the safety of additional victims. The facts of defendant's original case are disturbing, and his conduct after being released from prison indicates a perceptible risk of recidivism.
*1028The facts of the present case show that defendant did not register as a sex offender as required by law. This suggests an enhanced risk to the safety of victims. See People v. Lopez, 140 P.3d 106, 108-09 (Colo.App.2005) (because sex offenders pose a continuous threat to society's safety, it is necessary to monitor their locations continually in order to protect society).
Therefore, following Hernandez and the statutory scheme, I would reach three interconnected conclusions. First, the trial court abused its tightly constrained discretion by declining to require defendant to undergo treatment because treatment was supported by the second evaluation, its recommendations, and the facts of the case presently before the court.
Second, this abuse of discretion resulted in a sentence that was based on considerations that were not statutorily authorized, because, under section 16-11.7-105(1), the evaluation and the facts of this case required defendant to undergo treatment. See Hernandez, 176 P.3d at 748.
Therefore, third, the sentence here was illegal. See Delgado v. People, 105 P.3d 634, 636 (Colo.2005) (the entire sentence is illegal if any aspect of the sentence is contrary to the statutory requirements); People v. Wenzinger, 155 P.3d 415, 418 (Colo.App.2006) (an illegal sentence is one that is contrary to the legislative sentencing scheme).
IL The Prosecution's Promise
I concede, as I must, that the first evaluation was prepared at the prosecution's suggestion. Further, at the first sentencing hearing, the prosecution expressly left it to the trial court's discretion to decide whether to require defendant to participate in treatment.
But, I submit that it is crucial for the analysis here to recognize what the prosecution's promise was, and was not. The prosecution promised that it would take no position on the sentence to be imposed in the case, including a statement that it was "not recommending" treatment and "would defer to the [clourt on that issue."
The prosecution's promise was not the same as a sentence recommendation, or a stipulation, or a condition of the plea agreement, that the court would not impose treatment as a condition of probation. Rather, it is clear from the record that the plea agreement contemplated that the court would retain discretion to order defendant to participate in treatment. In other words, the court did not violate the terms of the plea agreement when it originally declined to impose treatment as a condition of probation, but it also would not have violated the agreement had it required that condition.
The prosecution's promise in this case is different from the promises made by the prosecutors in the cases cited by the majority. For example, in United States v. Ewing, 480 F.2d 1141, 1143 (5th Cir.1973), the prosecutor promised not to oppose a particular lenient sentence. Such a promise is distinguishable from a promise to take no position at sentencing. See United States v. Feigenbaum, 962 F.2d 230, 233-34 (2d Cir.1992) (citing similar holdings from the Third, Seventh, and Ninth Circuits).
I agree with the majority that the prosecutor broke that promise by urging the court to order the second evaluation, and then by arguing that defendant should be required to participate in treatment. See St. James v. People, 948 P.2d 1028, 1032 n. 9 (Colo.1997) ("A number of cases have concluded that an agreement not to take a position on the sentence or an agreement to stand mute at the sentencing hearing prohibits the prosecution from attempting to influence the sentencing judge. However, efforts by the prosecution to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate the plea agreement." (citations omitted)).
My disagreement with the majority is based upon my differing view of the effect of breaking that promise under the facts and law directly applicable here. The actual value of the prosecutor's commitment in this case was to remain mute during the sentence-ing hearing; it was not to restrict the scope of the trial court's sentencing discretion by promising to make a sentence recommendation. See Feigenbaum, 962 F.2d at 233-34; People v. Wright, 194 Colo. 448, 450, 573 P.2d 551, 553 (1978) ("[A] defendant should be *1029permitted to withdraw his guilty plea where the trial court chooses not to follow the prosecutor's sentence recommendation, regardless of whether the prosecution has promised that the court will follow the recommendation." (emphasis supplied)).
This is obviously important for my reasoning because a prosecutorial promise cannot tie a court to an illegal sentence. See People v. Bottenfield, 159 P.3d 643, 645-46 (Colo.App.2006) ("there cannot be a valid agreement to an illegal sentence"); of § 16-7-302(3), C.R.S.2009 ("Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions."); Crim. P. 11(£)(5) (same).
The nature and the extent of the prosecution's promise are, therefore, critical factors in my analysis. As I explain in the next section, the limitations on the prosecutor's promise that I have described left the door open for the court, on its own authority and in response to the probation officer's comments, to order and consider the second eval-vation. And, onee the second evaluation was before the court, the court's "tightly constrained" discretion was limited to a single result-an order requiring defendant to participate in treatment-by the second evaluation's contents, by the relevant statutory scheme, and by Hernandez.
I do not minimize the importance of requiring prosecutors to keep their promises. The system and the public are poorly served, a great deal of court time and energy can be wasted, due process principles can be grievously offended, and defendants can be harshly and unfairly disadvantaged when prosecutors do not honor their word. Such an effect can be seen here in both the trial court's understandable confusion, and in defense counsel's obvious and warranted frustration.
There is great mischief in such prosecuto-rial inconsistency, as represented by the problems generated in the trial court by the prosecutor's original position, which led to an appeal that probably would not have been necessary had the prosecution thought its position through carefully before the plea disposition was first offered. However, if the choice is between requiring a prosecutor to keep a promise that did not restrict the court's sentencing discretion, or invalidating an illegal sentence, Keller v. People, 29 P.3d 290, 295-96 (Colo.2000), instructs me to choose the latter.
III. Changing the Conditions of Probation
Trial courts have jurisdiction to impose new conditions of probation once notice is given, a hearing is held upon request, and good cause is shown. § 18-1.3-204(4), C.R.S. 2009. This jurisdiction includes the ability to act on recommendations of probation officers. See Smith v. People, 162 Colo. 558, 566, 428 P.2d 69, 74 (1967) (probation officers make recommendations to the sentencing court).
Probation officers are officers of the court who are appointed by the court. §§ 18-8-105 & 16-11-208, C.R.S.2009. Their duties include investigating cases referred by the court; keeping the court informed of the "conduct and condition" of probationers; and using "all suitable methods" that are not inconsistent with the conditions imposed by the court to improve the "conduct and condition" of probationers. $ 16-11-209(1), C.R.S. 2009; ef § 18-1.3-1010(2)(a)(b), C.R.S.2009 (at any revocation proceeding, probation officer may make recommendations about level of treatment to be imposed if probation is not revoked; trial court shall consider recommendations).
Here, the probation department requested the treatment condition. Unlike the prosecution, the probation department consistently recommended that defendant be required to participate in treatment. I readily concede that the probation department is not a party to a criminal case, and it cannot establish conditions of plea agreements. However, it has a job to do that is separate from the prosecutor's job, which includes making ree-ommendations to the court about the treatment of sex offenders.
I recognize that, had the second evaluation not been ordered and considered, the resolution of this case would be different. At the time of the original sentencing hearing, the prosecution made a promise-that it would take no position on whether defendant should be required to submit to treatment-and the *1030trial court's analysis was informed by the first evaluation, which did not recommend treatment. Therefore, the sentence was, at that point, legal.
But, things changed. The trial court held a hearing at which the prosecutor and the probation officer urged the court to order a second evaluation, partially because the original evaluation did not meet the SOMB standards. At this hearing, the trial court could have denied the request for a second evaluation, (1) informing the prosecutor that it would not consider the prosecution's comments because they were inconsistent with the prosecutor's promise; and (2) telling the probation officer that the court was not convinced of the need to order another evaluation.
However, the trial court did not do so. It ordered the second evaluation.
This was proper because the probation officer identified something that the trial court apparently did not know at the first sentencing hearing: the first evaluation was flawed because, contrary to the SOMB standards, it did not contain important information about defendant.
Further, the trial court retained its freedom to modify the conditions of defendant's probation because, as indicated above, the terms of the plea agreement did not prevent the trial court from imposing treatment as a condition of probation.
Things changed again. The second evaluation was submitted to the trial court, and the evaluation recommended that defendant be required to participate in treatment. As I have explained above, the introduction of the second evaluation into the court's analytical process fundamentally altered the discretionary caleulus. It was at this point, when the court reaffirmed its decision declining to impose treatment as a condition of probation, that the court imposed the illegal sentence. The court's entire sentence became illegal because one aspect of that sentence-the decision concerning treatment-became inconsistent with the statutory requirements. See Delgado, 105 P.3d at 637.
Onee the results of and recommendation in the second evaluation were before the court, the relevant statutory scheme and Hernandez combined to require the court to disregard the first evaluation, to rely upon the second, and to impose treatment as a condition of probation. Under section 18-1.3-204(4), the second evaluation provided the trial court with compelling good cause that required it to impose sex offender treatment as a new condition of defendant's probation.
For these reasons, I respectfully cannot join the majority's conclusion that the prosecution's appeal is a product of bootstrapping. This might be so had the imposition of treatment been directly contrary to the plea disposition; or had only the prosecution, and not the probation department, made the ree-ommendations for the second evaluation and the added condition of treatment; or had the court not been informed that the original evaluation was inconsistent with the SOMB standards.
However, I respectfully submit that we cannot unring the bell sounded by the second evaluation, which was properly before the trial court. I believe that the relevant legislative scheme and Hernandes mandated that the trial court require defendant to participate in treatment onee the second evaluation was before it. I believe this is so, even in the face of the prosecution's unfortunate inconsistency, because to do otherwise would interfere with a trial court's ability to modify its own probationary order when the cireum-stances justify, or, as in this case, require such a change.
IV. Remedy
Last, I turn to the appropriate remedy. One option would be to vacate defendant's guilty plea because "the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence." Chae v. People, 780 P.2d 481, 486 (Colo.1989). However, as indicated above, the inducement-that the prosecutor would take no position at sentencing-was not designed to limit the trial court's discretion to impose treatment as a condition of probation.
I am mindful of our supreme court's teaching in Delgado that the cure for some illegal sentences consists of substituting a legal sentence. This would be, for me, the proper course under the circumstances present here. I would conclude that the proper remedy is to reverse the part of the sentencing order *1031declining to order defendant to participate in treatment, and remand to the trial court to require defendant, as a condition of probation, to participate in treatment as outlined in the second evaluation. I would reach this result (1) because the plea disposition contemplated that the trial court had the authority to order defendant to participate in treatment as a condition of probation; and (2) because I would conclude that the law and facts here mandated such a condition.