People v. Devorss
2011 Colo. App. LEXIS 486
Colo. Ct. App.2011Background
- Defendant pled guilty to sexual assault on a child and unlawful sexual contact; received probation (eight years for first count, one year for second, sentences concurrent).
- A 2001 probation violation for late restitution payment was resolved by payment and commitment to stay current.
- 2002 probation violation alleged for pleading guilty in an unrelated case; probation revoked and resentencing to days in county jail.
- 2003–2006 multiple probation issues, including failure to register as a sex offender, late restitution, curfew, and treatment progress; at times court modified probation rather than revoke.
- 2005 renewed five-year probation; 2006 fifth complaint alleged violations including failure to engage in treatment; 2007 revocation hearing found no-contact violation but not treatment violation; May 2007 probation revoked with a suspended DOC sentence conditioned on six months in county jail and five years on probation.
- August 2006 probation officer filed fifth complaint alleging two no-contact and treatment- program violations; January 24, 2007 revocation hearing led to finding of direct contact with a child under 18 and thus violation of no-contact condition; sentencing in May 2007 included eight years in DOC with five-year suspended sentence and six months in county jail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the no-contact condition is void for vagueness as applied. | Devorss contends the clause is unclear for proximity sits next to a child. | Devorss argues mere proximity without touching or talking is not prohibited. | No-vagueness; condition sufficiently clear to prohibit sitting next to a child. |
| Whether the appeal is moot and whether the case presents a recurring constitutional issue. | People argue post-appeal events render the case moot. | Interrelated appeals and public-importance of no-contact issues justify merits review. | Not moot for public-importance/recurring-issue exception; merits reviewed. |
| Standard of review for void-for-vagueness as applied to probation conditions. | As-applied challenge should be reviewed de novo. | Plain-error review due to preservation issue. | Reviewed as plain error; no error in the no-contact condition. |
| Whether the no-contact clause prohibits proximate seating next to a child at a restaurant. | Clause prohibits any contact with children; proximity can violate. | Proximity without contact should not violate. | Clause sufficiently broad to prohibit sitting next to a child in a restaurant. |
| Whether incidental-contact condition was properly left unaddressed on appeal. | N/A | N/A | Declined to address incidental-contact condition. |
Key Cases Cited
- People v. McIntier, 134 P.3d 467 (Colo.App.2005) (void-for-vague applied standard for probation)
- People v. Shell, 148 P.3d 162 (Colo.2006) (probation-void-for-vagueness analysis)
- People v. Garcia, 197 Colo. 550, 595 P.2d 228 (Colo.1979) (commonsense reading of ordinary terms; vagueness not excused by semantic hyperprecision)
- Commonwealth v. Kendrick, 841 N.E.2d 1235 (Mass. 2006) (no-contact probation condition interpreted to prohibit proximity)
- Commonwealth v. Wilcox, 823 N.E.2d 808 (Mass.App.Ct.2005) (proximity-violation theory under no-contact)
- State v. Danaher, 819 A.2d 691 (Vt.2002) (proximity suffices to violate no-contact)
- State v. Leggett, 709 A.2d 491 (Vt.1997) (no-contact includes proximity without touch)
- Hunter v. State, 883 N.E.2d 1161 (Ind.2008) (fact-specific proximity/no-touch distinction)
- People v. Hinojos-Mendoza, 169 P.3d 662 (Colo.2007) (consideration of unpreserved constitutional claims)
- People v. Miller, 113 P.3d 743 (Colo.2005) (merits of unpreserved claim)
- People v. Forsythe, 43 P.3d 652 (Colo.App.2001) (rehabilitation-oriented probation review authority)
- People v. Cagle, 751 P.2d 614 (Colo.1988) (preservation of constitutional challenges on appeal)