2017 COA 39
Colo. Ct. App.2017Background
- Defendant Homaidan Al‑Turki was convicted under the Sex Offender Lifetime Supervision Act (LSA) of multiple counts of unlawful sexual contact by force (class 4 felonies) and sentenced to indeterminate terms (six years to life) under the crime‑of‑violence sentencing statute, § 18‑1.3‑406(1)(b).
- He moved under Crim. P. 35(b) to reduce his indeterminate incarceration to probation, arguing § 18‑1.3‑406(1)(a)’s modification language authorized such relief.
- The district court held it lacked authority because Al‑Turki was subject to § 18‑1.3‑406(1)(b), which mandates indeterminate imprisonment for violent sex offenders.
- The Court of Appeals majority affirmed, relying on the Colorado Supreme Court’s decision in Chavez v. People to hold crime‑of‑violence sex offenders are ineligible for probation.
- A divided panel: the majority concluded Chavez forecloses later modification to probation; the dissent argued the statutory text and history permit post‑sentence modification under § 18‑1.3‑406(1)(a) where not expressly precluded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant convicted of a violent sex offense and subject to § 18‑1.3‑406(1)(b) may have an imposed indeterminate custodial sentence later modified to probation under § 18‑1.3‑406(1)(a) | People: § 18‑1.3‑406(1)(b) governs violent sex offenders and, by its “notwithstanding” language, precludes application of § 18‑1.3‑406(1)(a)’s modification/probation authority | Al‑Turki: § 18‑1.3‑406(1)(b) only overrides conflicting parts of (1)(a) (the requirement of indeterminate incarceration); nonconflicting modification provisions in (1)(a) remain available, permitting Rule 35(b) relief to probation | Held: No. Following Chavez, a crime‑of‑violence sex offender subject to § 18‑1.3‑406(1)(b) is ineligible for probation; the district court properly denied the Rule 35(b) motion. |
Key Cases Cited
- People v. Banks, 9 P.3d 1125 (Colo. 2000) (distinguishes defined crimes of violence from statutory per se crimes and explains sentencing "in accordance with" § 18‑1.3‑406)
- People v. Beyer, 793 P.2d 644 (Colo. App. 1990) (under predecessor crime‑of‑violence statute, court could modify aggravated sentence to probation upon unusual and extenuating circumstances)
- Vensor v. People, 151 P.3d 1274 (Colo. 2007) (statutory interpretation principles and legislative intent; LSA not intended to increase punishment beyond similarly situated felons)
- People v. Robles, 811 P.2d 804 (Colo. 1991) (overruled on other grounds; cited for sentencing authority background)