2013 COA 22
Colo. Ct. App.2013Background
- In December 2010 defendant pled guilty to sexual exploitation of a child for possessing nude photographs of his 17-year-old girlfriend, a class six felony.
- Plea agreement deferred judgment and four-year SOISP; defendant agreed to complete sex offender treatment.
- Probation imposed included a 90-day jail commitment (80 days suspended, 3 days served credit), no sexually explicit material, and completion of treatment.
- A treatment condition prohibited possession or contact with material containing nudity or sexually explicit content.
- February 2011 probation officer searched defendant’s home and found a Hooters calendar, a Maxim magazine, photos with a naked woman, and nine pornographic movies; he was removed from treatment.
- After hearings, the trial court revoked the deferred judgment and sentenced him to five years of SOISP; a second probation sentence included a 90-day jail term with 60 days suspended and one day served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 90-day jail cap per probation sentence or per conviction? | Gravina argues cap attaches to each conviction; should be 90 days total. | Gravina argues aggregate 90 days applies to total sentence for underlying offense. | Statute applies per probation grant, not per underlying conviction. |
| May the court revoke probation and resentence with the same 90-day jail commitment after violation? | Probation revocation should not permit repeat jail commitment beyond initial term. | Court may revoke and resentence to probation with same 90-day commitment. | Court may revoke and resentence to probation with the same 90-day commitment. |
| Were the probation terms as applied to magazines/calendar vague and was possession proven for revocation of deferred judgment? | Vagueness in prohibiting sexually oriented material as applied to calendar/magazine; possession not proven beyond doubt. | Record supports that the materials were sexually oriented; items located in his home establish possession. | No reversible error; materials presumed sexually oriented; possession shown by location and evidence. |
Key Cases Cited
- People v. Valenzuela, 98 P.3d 951 (Colo. App. 2004) (statutory interpretation governs probationary discretion)
- Romero v. People, 179 P.3d 984 (Colo. 2007) (interpret statutes with plain meaning and context)
- People v. Martinez, 70 P.3d 474 (Colo. 2008) (read statutes harmoniously and avoid absurd results)
- Town of Erie v. Eason, 18 P.3d 1271 (Colo. 2001) (same-subject-law considerations inform interpretation)
- Mayo v. People, 181 P.3d 1207 (Colo. App. 2008) (contextual interpretation of probation provisions)
- People v. Trugillo, 261 P.3d 485 (Colo. App. 2010) (probation revocation and resentencing considerations)
- People v. Howell, 64 P.3d 894 (Colo. App. 2002) (burden in revocation proceedings is preponderance of the evidence)
- People v. Colabello, 948 P.2d 77 (Colo. App. 1997) (probation revocation standards and discretion)
- People v. Elder, 36 P.3d 172 (Colo. App. 2003) (reviewing probation revocation for manifest weight of the evidence)
- People v. Clendenin, 232 P.3d 210 (Colo. App. 2009) (defendant bears burden to show record supports claims)