People v. Brosh
2012 WL 6700436
Colo. Ct. App.2012Background
- Brosh pled guilty to one count of sexual assault on a child by a person in a position of trust and received a four-years-to-life indeterminate sentence.
- Brosh was designated a sexually violent predator (SVP) under C.R.S. 18-8-414.5, which this court affirmed on direct appeal.
- During the direct appeal, Brosh filed a Crim. P. 85(b) motion and asked the trial court to withhold ruling for one year; the court deemed it lacked jurisdiction.
- After remand, Brosh supplemented the motion seeking reconsideration of his sentence and the SVP designation.
- The trial court denied the Crim. P. 35(b) motion, ruling it could not reconsider the SVP designation since it was not part of the sentence; Brosh appeals on multiple grounds.
- The issue on appeal concerns whether the SVP designation or related proceedings can be reconsidered under Crim. P. 85(b) or Crim. P. 35(b) and the appropriate legal standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to reconsider SVP designation under Crim. P. 85(b) | Brosh argues Crim. P. 85(b) allows reconsideration of the SVP finding. | Brosh asserts the court has inherent or statutory authority to revisit SVP once affirmed. | No authority to reconsider SVP designation under Crim. P. 85(b). |
| Authority to order a new SVP evaluation under Crim. P. 35(b) | Brosh contends Crim. P. 35(b) allows sua sponte new SVP evaluation. | Court lacks authority to order new SVP evaluation after direct appeal affirmation. | Court cannot order a new SVP evaluation under Crim. P. 35(b). |
| Legal standard for Crim. P. 85(b) and separation from SVP | Brosh asserts erroneous legal standard applied, conflating SVP with DOC sentence. | Registration/SVP framework is separate from sentence; proper standard applied. | Court correctly applied standards; SVP designation not a sentence component subject to rule 85(b). |
| Effect of parole eligibility constraints on 85(b) analysis | Brosh argues parole prospects affect authority to modify Sentence via 85(b). | Parole rules are distinct and not within 85(b)’s scope. | Court properly recognized limits; did not misuse authority; parole considerations not controlling. |
Key Cases Cited
- People v. Brosh, 251 P.3d 456 (Colo.App.2010) (affirmed SVP designation)
- People v. Tuffo, 209 P.3d 1226 (Colo.App.2009) (reconsideration of SVP finding discussed; not model procedure)
- Carbajal, 2012 COA 107 (Colo.App.2012) (registration not a sentence element; SVP is protective, not punitive)
- Rowland, 207 P.3d 890 (Colo.App.2009) (SVP registration purposes; not part of sentence)
- Fendley v. People, 107 P.3d 1122 (Colo.App.2004) (registration framework; non-punitive)
- People v. Stead, 66 P.3d 117 (Colo.App.2002) (SVP framework and registration context)
- Brosh I, 251 P.3d 456 (Colo.App.2010) (affirmed SVP designation on direct appeal)
- Dunlap, 36 P.3d 778 (Colo.2001) (SVP findings reviewed for legal sufficiency)
- Piotrowski, 855 P.2d 1 (Colo.App.1992) (cannot modify sentence based on incarceration conduct)
- Ellis, 873 P.2d 22 (Colo.App.1993) (Crim. P. 85(b) considerations and new evidence)
- Ghrist v. People, 897 P.2d 809 (Colo.1995) (exemplary conduct addressed in Rule 35(b))
- Mamula v. People, 847 P.2d 1135 (Colo.1993) (incarceration-based factors in 35(b) considerations)