*1 or simi install barriers require or failure to did not create during upgrade MAYO, Petitioner-Appellant,
lar devices Steven meaning within "dangerous condition" duty maintenance statute because of the ("[T]he at 456 triggered. Id. yet The PEOPLE of State only after the road can arise duty to maintain Respondent-Appellee. constructed."). designed and has been 06CA2375. No. Design of Final Approval B. Defendants' Not Does Eliminating Barriers Appeals, Colorado Court Immunity Waive Div. I. that immu- contends Plaintiff nevertheless were because defendants nity was waived March of cоncrete by including the use negligent design upgrade of the initial their barriers eliminating this use subsequently
and then disagree. design. Again, we
their final upgrade undertakes
If the state any inadequa design, a certain
and follows design do not from that result
cies previ immunity simply there because
waive design available. a safer
ously may have been ("For
Medina, purposes of at 457 CGIA, acceptance of the final the state's remaining of risk design-including the level design phase-determines of the at the end repair, efficien being, general state of constructed."). initially
cy the road as to adhere to the choice
This is because design or part of the design later is still and, hence, gives rise to the
planning Willer, immunity. id. at See
same
P.2d at 518.
Therefore, of concrete the absence because conception, or included in the
barriers was inju- upgrade, Grant's highway's
plan, for design, and solely to attributable
ries were injuries which the CGIA were not
thus immunity. waives the state's motion to denying defendants'
The order reversed, remanded and the case is
dismiss for further
to the trial court opinion. with this
consistent * *, Judge NEY
Judge STERNBERG
concur.
* 24-51-1105, C.R.$.2007. Sitting by assignment Chief Justice VI, 53), Const. art. of Colo. *2 Tatum, P.C., Tatum,
John S. John S. Auro- ra, Colorado, Petitioner-Appellant. Quick, Attorney, Donald District Michael Milne, Deputy Attorney, J. Senior District Brighton, Respondent-Appel- lee.
Opinionby Judge MARQUEZ. Petitioner, Mayo, appeals Steven the trial denying court's petition order to discon- tinue sex offender and Internet posting and to a declaratory judgment enter required he is not sex offender under Colorado law. We affirm. Mayo was indicted in Illinois for an offense which if committed Colorado would abe crime of sexual assault on a child. After evidence, stipulating to the state's he was Department remanded to the Illinois of Cor- (DOC) rections procedure. He was discharged, later and the quashed, indictment was but he was the Illinois sex offender registration statute. He then moved to Colo- question rado. The here is whether he must register as a sex offender in Colorado. We register. conclude that he must Background I. 1988, Mayo
In indicted Illinois for aggravated per- criminal sexual assault on a alleged age to be under the of thirteen years. According order from Illi- 18, 1989, nois cоurt dated March hearing was held on the state's to have dangerous person pursu- declared ant Sexually to the Ilinois Dangerous Per- (SDPA), sons Act III. (formerly Ill.Rev. 205/0.01 Stat.1991, 105-12; ch. T1T105to trans- Ill.Rev.Stat.1961, ferred from ch. 825e). T1 820.01 The order states that right jury waived his trial and other notice complied with and has psychiatrists reports of two stipulated act. of the Illinois evidence. and the state's evidence, IIli- stipulated Following the to section February (1) had a found trial court nois C.R.8.2007, 22-113(2)(a), Mayo informed period existed for that had mental disorder *3 his by mail of following agencies certified (2) eriminal year, had one than not less the sex to discontinue petition file a intent to of sex of- to the commission propensities posting and Internet registration offender (8) to- propensities fenses, and demonstrated District in Colorado: Office molesta- or sexual acts of sexual ward District, Col- Attorney, Judicial Seventeenth specify not The court did children. tion Colo- orado; Northglenn Department, Police propensity, Mayo's act demonstrated what Attorney, IN- rado; County Peoria State's transeript of no contains and the record Two nois; Police.: the Illinois State and Mayo remanded ordered hearing. The court later, discon- Mayo petition to filed his weeks DOC, appointed custody of the Internet registration and tinue sex (Director) as of Corrections the Director declaratory judgment posting or Comp. 725 III. pursuant Mayo's guardian in Colorado. County District Court Adams (2007), indict- and dismissed Stat. 205/8 a trial brief attorney filed Only the district motion. state's ment on the hearing. appeared and Illinois court August 1995 According to an entitled ei- that he was Mayo contended rеcovery, order, application Mayo filed discontinuing any sex of- to an order ther found The court hearing was held. and requirement in Colorado registration fender danger- longer appeared Mayo no C.R.S.2007, 16-22-118, to section pursuant that he had determine it could not ous but pursuant to section posting Internet and go permitted fully recovered. C.R.S.2007, declaratory judg- 22-111, or to a conditions subject to certain large subject decreeing that he was by the Director. supervision laws of under the registration sex offender for termi petition filed a In posting would Internet and thus Colorado to 725 pursuant release conditions nation of (1) argued that he had He applicable. not be (2007). Following a Comp. III. Stat. 205/9 sexual an unlawful convicted of not been time law at the and as case hearing in 2002 in section 16- defined in Colorado as offense Trainor, 196 Ill.2d required, see (2) Illinois; C.R.8.2007, Colora- 22-103, or in statutory provisions for not have do does had not (2001), found that any impose and does not beyond a reason proving met its burden upon requirements sex offender sexually Mayo was still able doubt commitment; сivil a result of residents (As amended, the stat dangerous person. (8) require- reporting only lifetime (e) 205/9(a), (b), ute, IIL. by are for Colorado mandated ments to show this (2007), requires the state now as adults "convicted" predators violent evidence.) The court convincing clear and offenses, § 16-22- certain unconditionally discharged, ordered C.R.S.2007, provision 108(1)(d)(T), and this indictment, sealed original quashed the him. apply to does not It to section report pursuant required to Mayo is still undisputed if the trial Mayo argued that Alternatively, Illinois Sex Offend under the register for life interpretation with his disagreed IIL, Act, Comp. Stat. Registration er only could law, his civil commitment Ill.Rev.Stat.1991, (2007) ch. (formerly a deferred analogous to be 1227). dismissed, and that been that had sentence order approxi- he would eligible for an to Colorado still Mayo relocated he ar- support, registration. discontinue mately May has continued (1) was dismissed Illinois case his municipalities gued that proper in Colorado unconditionally dis- he was Reg- in 2002 when Sex Offender to the Colorado (2) been subsequently he had not -115, charged; Act, C.R.S. §§ 16-22-101 istration (8) offense; convicted of unlawful sexual that he Mayo appeals was rehabilitated. this the Illinois court determined he was not a order.
dangerous person
August
as of
1995 and
discharged him from his custodial commit-
II.
Requirements
(4)
ment;
he has received thousands of hours
Mayo contends that
the court erred in
of therapy, has received determinations of
denying
his
to discontinue sex of-
rehabilitation,
cooperated
and has
with all
fender
posting
Internet
pertinent agencies; and
he is not a dan-
violation of the
Regis-
Colorado Sex Offender
ger or
public.
threat
disagree.
tration Act. We
order,
In a verbal
the Colorado trial court
determined that the THlinoiscivil commitment
A. Standard of Review
was the
equivalent
functional
aof
*4
question
statutory
interpretation is
judgment,
statutes,
compared the two states'
question
a
subject
of law
to de novo review.
and
person civilly
found that a
committed in
Harrison,
(Colo.
People
165 P.3d
859
Illinois
responsibility
would have the
reg-
App.2007).
primary
construing
Our
task in
ister
in
request
Colorado. At
of his
give
statute is to
effect to the intent of the
counsel,
gave Mayo sixty
the court
days to
Assembly by
General
looking first at
file a supplemental petition
request
and
language of the statute. Arnold v. Colo.
hearing for removal from the sex offender
Corr.,
Dep't
(Colo.App.
978 P.2d
151
registration requirement
provided by
as
Col-
1999).
statutory
When the
language is clear
orado statute.
unambiguous,
there is no need to resort
later,
Three months
the trial court entered
interpretive
rules
statutory
construc
finding, among
written order
things,
other
Cox,
(Colo.
tion.
Jones v.
828 P.2d
(1)
Mayo
had been indicted for an of- 1992).
give
Courts should
parts
effect to all
fense in
substantially
similаr to the
of the statute and avoid constructions
offense of sexual assault on a child under the
part
would render a
of the
meaning
statute
code, (2)
civilly
Colorado criminal
was
com-
Terry,
less.
791 P.2d
(8)
SDPA,
mitted
to the
was uncon-
(Colo.1990). Courts must not follow a con
ditionally released from civil commitment un-
struction that would lead to an absurd result.
SDPA,
der the
relocated to Colorado
Eason,
Town
Erie v.
registered
where he has
sex offender for
(Colo.2001).
all times
proceeding.
relevant
to the
court also found that the mere fact that
B.
Registratiоn
Civil Commitment and
places
Illinois statute
a civil label on its
in TMinois
dispositive
is not
and that
court,
Before the
Mayo's
Colorado trial
registration
statute "refers to vari-
counsel noted that there are some differences
ous
persons
cireumstances
regis-
where
must
in the current SDPA and the
in
version
ter as sex
may
offenders that
not traditional-
adjudicated,
when
they
but
did not
ly be considered
such as ...
'conviction'
appear materially different.
In his brief on
deferred
and sentence."
It found
appeal, Mayo notes that
registration pro-
thаt his
subsequent
commitment and
uncon-
vision of the Illinois
changed
statute was
ditional release were "the
equiva-
functional
or about
but does not contend that the
lent of a
and sentence
applies
Therefore,
earlier version
to him.
we
Colorado law" and that
must
only
refer
to the current
Illinois statutes.
register pursuant to the Colorado Sex Of-
fender
SDPA,
Act. The court denied
Under the
may
seek an
prejudice Mayo's
claim to
involuntary,
discontinue
indeterminate
sex
declaratory
and for
lieu of a
prosecution
criminal
if a defendant
and,
judgment,
because
charged
failed to file
with a criminal offense and is
supplemental
his
petition, denied
sexually
without
believed to
dangerous.
725 Ill.
prejudice request
alternative
Comp.
to discontin-
Burns,
Stat.
People 209 Ill.2d
ue sex offender
283 Ill.Dec.
ground
on the
sexually
to be a
is found
If the defendant
Trainor,
(2004); People v.
107, 110
Di-
appoints
person, the
dangerous
at 1060.
81
is com-
and the defendant
guardian,
rector as
are defined
persons
dangerous
Sexually
custody. §
Director's
to the
mitted
the SDPA
the defendant
place
The Director
mental disor-
suffering from a
persons
[alll
thereof set
portion
or
facility in the DOC
has existed
der,
mental disorder
which
treatment of
care and
for the
aside
immedi-
year
than one
not less
period of
Id.
dangerous persons.
...
filing of
to the
ately prior
any time an
may file at
The defendant
propensities
with criminal
coupled
or
has recov
showing that he
she
application
offenses,
have
and who
of sex
commission
205/9(a);
$
requesting release.
ered
acts of
toward
propensities
demonstrated
Trainor,
molestation
acts of sexual
applica
Upon filing of
N.E.2d at
of children.
psycholo
tion,
sociologist,
psychiatrist,
(2007).
Ill.
205/1.01
where the
institution
gist, and warden
propensities
satisfy the demonstrated
prepare
To
a socio-
must
is confined
SDPA,
must
state
defendant,
concerning
element
report
psychiatric
attempted
committed
hearing
the defendant
on the
prove
set a
molesta
Trainor,
of sexual assault
205/9(a);
one act
at least
application.
*5
285,
Lawton,
813,
1062. The
288
N.E.2d at
212 Ill.2d
752
v.
People
Ill.Dec.
256
tion.
326,
Peo
638,
337
Attorney
who
Ill.Dec.
Attorney
or State's
General
847,
481
Allen,
Ill.Dec.
89
107 Ill.2d
represent
v.
the
ple
shall
original petition
filed the
Allen
(1985),
nom.
sub
205/9(b).
697
N.E.2d
is found
If the defendant
§
state.
aff'd
92
Ilinois,
106 S.Ct.
478 U.S.
v.
the court shall
longer dangerous,
no
(1986).
205/9(e).
§
296
discharged.
L.Ed.2d
the defendant
order
appears
defendant
finds that the
If
the
begins when
The commitment
that "it is
dangerous but
be
longer
to
no
Attorney files a
State's
Attorney
General
certainty ...
with
determine
impossible to
in
clerk of court
writing, with the
in
recovered,
the
fully
has
person
such
is
the defendant
proceeding where
the same
such
permitting
an order
shall enter
offense, setting forth
a criminal
charged with
condi
subject to certain
large
at
go
to
person
is a
the defendant
tending to show
facts
Id.
tions."
§
After
dangerous person.
sexually
until
charges
remain
underlying
trial court
petition, the
filing of the
treated,
at which
successfully
make
to
qualified psychiatrists
is
two
defendant
appoint
underly
that those
defendant,
mandates
time
SDPA
of the
examination
personal
outstanding
writing
in
and all
report
dismissed
ing charges
must file
be
psychiatrists
indictments,
Ill.
Stat.
725
205/4 informations
which were
the court.
(2007).
commitment,
quashed.
shall be
basis for
95, 209
Galba,
.App.3d
Id.;
Ill
273
to
SDPA,
proof
of
the burden
Under
(1995).
400, 405
860, 652 N.E.2d
Ill.Dec.
sexually dangerous
as a
commit a
conditionally
However,
is
if the defendant
the standard
"shall be
to confinement
person
the conditions
and violates
released
of
required in criminal
proof
conditional
release,
revoke
the court shall
Ill.
doubt."
beyond a reasonable
proof
to
him or her
and recommit
release
(2007); Allen v.
Comp. Stat. 205/8.01
commitment.
original
terms
(at
conclu
S.Ct. 2988
at
478 U.S.
205/9(e).
§
fact must
trier of
hearing,
sion
civil
under the SDPA
Proceedings
proved
has
whether
determine
Illinois, 478 U.S.
205/8.01;
Allen
nature.
beyond a
dangerousness
defendant's
(SDPA
ap
does
106 S.Ct.
doubt)
Pem
(citing People v.
reasonable
(1976));
"the traditional
either
brock,
promote
N.E.2d 28
pear
62 Ill.2d
and deter
punishment-retribution
aims of
Trainor,
People (quot
nature
essentially civil in
rence"
N.E.2d at
Mendoza-Martines,
not intend that "the information be used to
ing Kennedy v.
372 U.S.
144, 168,
83 S.Ct.
The
of the Colorado Sex Offend- ment and sentence for one of the offenses
er
Act are set
(II)
forth
specified
sections
in subparagraph
para-
of this
Illinois,
16-22-101 to ~115. Much like in
(d),
graph
person may
petition the court
Colorado General Assembly has found that
for discontinuation of
duty
register
as
publiс
"the
must have access to
information
provided
16-22-118(1)(d)."
in section
§ 16-
concerning persons
22-108(1)(d)(I).
convicted of
in-
offenses
One of the offenses included
volvingunlawful sexual behavior ...
to allow in subparagraph
II is sexual assault on a
them
adequately protect
themselves child in
18-3-405,
violation of section
C.R.S.
their children
§
16-22-108(1)(d)(II)(A),
persons,"
from these
but
C.R.8.2007.
did
sentencing
Colora-
statute
deferred
"convict
defines
statute
part:
in relevant
provides
do
"having received
or "conviction"
ed"
having
jury,
judge or
guilty
of
by a
entry
plea
of a
guilty
to the
of
Prior
verdict
аnd sen-
contendere,
judgment
having
by deferred
followed
nolo
or
guilty
pleaded
of
attorney,
course
tence,
having
juvenile,
the district
disposition
received
to enter
...
is authorized
delinquent,
plea discussion
juvenile
adjudicated
been
which
... under
stipulation
a written
into
judgment
a deferred
having received
adhere to
obligated to
§
adjudication."
a deferred
sentence
compliance
full
Upon
stipulation....
22-102(8),C.R.8.2007.
such
defendant,
by the
conditions
with such
entered shall
guilty previously
plea of
in Colorado
Register
Requirement
D.
charge upon which
withdrawn
Assem-
General
the Colorado
Mayo asserts
court was
and sentence
judg-
include
bly did not
prejudice.
dismissed
shall be
deferred
it
which
cases for
of
in the class
ments
provide
specifically
stipulation shall
Such
We
registration.
sex
mandated
that,
by the defendant
a breach
upon
properly deter-
the trial
that
conclude
conduct of
regulating the
any condition
register
in Colorado.
Mayo must
mined
defendant,
shall enter
the court
plea.
guilty
upon such
impose sentence
16-22-1088)
requires
Section
Nichols, 140
18-1.3-102(2);
"any per-
cireumstances:
least two
in at
(Colo.App.2006).
200-01
P.3d
other
offense
of an
convicted
(1)
SDPA,
as a result
person
of fact
"for which
a trier
state"
Under
conviction,
required to
doubt
beyond
a reasonable
finding
makes
conviction";
which
"for
has oc
offense
underlying
... of
state
205/8.01;
478 U.S.
would be
Allen
person
such
curred.
Lawton,
Here,
Mayo meets
in Colorado."
106 S.Ct.
convicted
alternatives.
both
N.E.2d at 337.
Ill. Dec.
finding
a defen
make a
sen
the Colorado
guilt, and
dant's
to enter
a defendant
tencing
allows
statute
Ilinois
first conclude
We
underlying offense
plea
guilty
"convict
satisfies
procedure
condi
stipulation with
into a written
enter
statutes.
of the Colorado
requirement
ed"
§ 18-
probation.
to conditions
tions similar
*7
23,
Hastings, 903 P.2d
1.3-102(2); People v.
vary
de
meaning of "conviction"
The
(under
sentence
deferred
(Colo.App.1994)
27
used.
it is
in which
the statute
pending on
acceptance
by the
statute,
determined
guilt is
1236, 1239
P.2d
Hampton,
876
People v.
plea).
guilty
16-22-1028) indi
of defendant's
(Colo.1994). As section
can mean
cates,
"convicted"
evi
the state's
Here,
stipulated
"conviction"
Mayo
adjudication of
argue
a formal
thаt
than
something less
He does
in Illinois.
dence
People v.
generally
its burden
See
to meet
sentence.
failed
guilt and
of Illinois
State
least
38,
(Colo.App.1992).
attempted at
Allaire,
41
P.2d
843
he committed
proving
See
molestation.
act of sexual
one
judg-
includes a deferred
also
"Convicted"
638,
Lawton,
818
Ill.Dec.
288
the SDPA
Both
sentence.
ment and
at 337.
N.E.2d
re-
sentencing statute
deferred
Colorado's
judg
subject
to a deferred
person
A
charge a defendant
the state
quire that
depart
by
probation
respec-
supervised
is
procedures
а crime before
604,
Manzanares,
85 P.3d
205/83;
§
v.
§
18- ment.
utilized.
can be
tive statutes
18-1.3-102(1)-
§
(citing
(Colo.App.2003)
un-
1.3-102(2),
C.R.S.2007.
C.R.S.2007).
has broad
A trial court
(2),
proceed-
in the same
occur
both statutes
der
of a
conditions
imposing
when
discretion
charged and allow
is
ing
the defendant
where
that the defen
to ensure
deferred
persons.
certain
for
treatment
providing
assist
and to
law-abiding life
18-1.3-204,
205/8;
lead a
205/83,
§
C.R.8.2007.
dant will
§§
so,
doing
the defendant in
and this
discretion penitentiary
treatment,
for psychiatric
ability
includes the
specific
order offense
person
must be accorded the essentiаl
Rockwell,
treatment.
v.
protections
available at a eriminal trial. Peo
(Colo.2005).
420-21
Trainor,
ple
256 Ill.Dec.
752 N.E.2d
People McVeay,
302 Ill.App.3d
Both
provide
states' statutes also
for dis-
missal of
underlying charges upon
cer-
People,
Potts v.
App.2d
80 Ill.
(e).
tain
205/9(a),
$
conditions. See
In Colo-
(1967).
rado, the
upon completion
dismissal occurs
conditions of the deferred
stip-
proof
burden of
to commit
person
ulation,
18-1.3-102(2),
§
and no eriminal sen-
proof beyond
the SDPA is
a reason
imposed.
tence is
doubt,
able
and the
specifically
statute
allows
Mayo petitioned for release from his condi-
person
for the
by
to demand a
jury
trial
tions,
granted
which the Ilinois court
represented
counsel. 725 Ill.
quashed
then
original
(2007).
indictment
addition,
In
right
"the
report.
sealed the
substantially
This is
simi-
due
entitles
the defendant
lar to the dismissal
charges
right
to confront and cross-examine wit
sentencing
upon
statute
compliance
testifying
nesses
against
herl,
him [or
with the
imposed.
conditions
right against self-incrimination [at the hear
ing] and
right
speedy
to a
trial." People
Trainor,
256 Ill.Dec.
We compulso- in a psychiatrist to a statements dissents. Judge RUSSEL here the under ry examination him in against used dissenting. may not be involved Judge RUSSEL proceedings. criminal subsequent that Steven majority concludes The at Allen, beсause a sex register as omitted). (citations 695-96 equivalent functional is the disagree. respectfully was v. Illinois I in Allen Thus, of a conviction. question Illinois under proceedings whether Sexually Dan the Ilinois that recognize I meaning of within criminal were act (SDPA) many contains Act Persons gerous com- against guarantee Amendment's Fifth accept that I safeguards, and procedural Illinois, Allen self-incrimination. pulsory require the SDPA's Ilinois satisfied State The United 106 S.Ct. 478 U.S. Mayo committed establishing that ments petition- rejected the Supreme Court States or act of sexual attempted or Court's Supreme Illinois challenge to er's this believe I do not But molestation. under proceedings conclusion of a equivalent functional yielded the to criminal "similar while SDPA statutory SDPA's conviction. criminal proce- by strict accompamied they are in that consti fundamental not erase do features in na- essentially civil are safeguards, dural civ criminal between differences tutional 478 U.S. Allen v. Illinois, 478 ture." Allen See proceedings. il added). (emphasis S.Ct. L.Ed. 2d S.Ct. U.S. not the SDPA (proceedings conclude we foregoing, Based on Fifth meaning of within "criminal" functional is the commitment civil compelled against privilege Amendment's "convicted" or "conviction" equivalent self-incrimination). 16-22- in section are defined terms those 102(3) were civil Mayo's Even Regis- Offender the Sex in Colorado conviction,it does to a functionallyequivalent is consistent This conclusion Act. tration Section definition. governing satisfy the not statute, law en- to aid this purposes C.R.S.2007, "eonvie- defines 16-22-102(8), offenders identifying sex forcement qualifying a list of forth setting tion" public. protect guilty a verdict "[Hlaving received events: guilty рleaded having being re- jury, judge or by a procedure ais there While disposi- a contendere, having received nolo requirement from moved adjudicated having been juvenile, tion as entered has when a de- having received delinquent, juvenile sentence, a deferred and sentence ferred C.R.S.2007, petition 22-118(1)(d), such in- not plainly does list adjudication." court, we do *9 trial before not though the commitment," even "civil clude deter- have we Because this issue. address of civil is aware legislature Mayo to requires law Colorado mined that 12-483-303(2)(g), C.R.S. Sеq, eg., schemes. Mayo's con- address do not we also register, applica- includes ("forensic psychology" faith and full nothing in the tention commit- to "civil psychology tion of science impose Colorado authorizes credit doctrine proceedings"). And the statute does suggest that other events constitute they "conviction"if functionally equiva-
lent to the enumerated items. 7-90- Cf 102(43), ("owner" C.R.S.2007 per- includes "a having interest entity other functionally equivalent to an owner's
interest"). legislature
Because the omitted "civil com-
mitment" from the list of items that consti- conviction,
tute I conclude is not as a sex offender under
the Colorado Sex Offender Act.
See Farmers Co., Ins. Exch. v. Allstate Ins. (Colo.App.2007) (employing expressio doctrine of unius est exclusio
alterius).
The PEOPLE of the State of
Plaintiff-Appellee,
Samuel ROJAS, Albert Defendant-
Appellant.
No. 05CA2058. Appeals, Court of
Div. VI.
March