Thе PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dehonna Christine MEIDINGER, Defendant-Appellant.
No. 98CA0923.
Colorado Court of Appeals, Div. I.
Aug. 19, 1999.
Rehearing Denied Sept. 16, 1999.
987 P.2d 937
Opinion by Judge METZGER.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Seawell, Gilbertson & Graf, LLC, Malcolm B. Seawеll, Denver, Colorado, for Defendant-Appellant.
Defendant, Dehonna Christine Meidinger, appeals the conditions of the sentence to probation she received after her entry of a guilty plea to one count of contributing to the delinquency of a minor. She also appeals the imposition of a sex offender surcharge. We vacate the sentence and remand the cause for further proceedings.
Defendant operated a prostitution enterprise. The charges filed in this case resulted from two incidents in which defendant had arranged for her 16-year-old sister to engage in acts of prostitution. Defendant was charged with two cоunts each of patron-
Pursuant to a plea agreement, defendant pled guilty to one count of contributing to the delinquency of a minor. The remaining charges were dismissed.
Thereafter, the trial court sentenced defendant to two years probation, with the additional conditions that she submit to a mental health evaluation, maintаin gainful employment, comply with all sex offender conditions, and register as a sex offender. The court also imposed a sex offender surcharge and ordered that defendant have no contact with children under the age of 18. This appeal followed.
I.
Defendant first contends the trial court erred in determining that she was a sex offender. Specifically, she argues, because the offense to which she pled guilty, contributing to the delinquency of a minor, is not an enumerated sex offense, she is not a “sex offender” and should not have been required to register as such. We agree with the premise of her argument but reject the conclusion.
‘Sex offender’ means any person who is convicted in the state of Colorado ... of any sex offense as defined in subsection (3) of this section, or of any criminal offense, if suсh person has previously been convicted of a sex offense ... in the state of Colorado, or if such person has previously been convicted in any other jurisdiction of any offense which would constitute a sex offense ... or if such person has a history of any sex offenses as defined in subsection (3) of this section ....’ (emphasis added)
The General Assеmbly did not define the term “history” as used in
The term “history” is ambiguous. It could refer, as defendant argues, to convictions for one or more of the enumerated sex offenses. We reject this restrictive interpretation since it would render superfluous the first portion of
Instead, we agree with the People‘s assertion that “history” can include the underlying circumstances of the offense.
The legislative histоry of the statute supports this interpretation. Before enacting
[T]hat is why thеre [is] such a broad definition of sex offender, that is, a person currently charged with a sex offense or a person currently charged with a trespass, but when you read the arrest report it is clear the person attempted a sexual assault on someone in the house but didn‘t get charged with that or it is someone who has a history of sеx offending in the past and this time was picked up on burglary or robbery.
Hearings on H.B. 1021 before the House Judiciary Committee, 58th General Assembly, Second Session (January 14, 1992).
This use of the term “history” has been employed in other, similar contexts. For example, in People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975) and People v. Madril, 746 P.2d 1329 (Colo.1987), the supreme court approved the trial court‘s consideration of the defendant‘s societal and criminal history in sentencing. And, in Logan v. People ex rel. Alamosa County, 138 Colo. 304, 308, 332 P.2d 897, 899 (1958), the court said:
The crime committed viewed in its setting; the nature and circumstances of the offense, particularly as they furnish a clue to the personality of the offender; whether the offense was violent or nonviolent; and the motives actuating the defendant in committing the offense, are components which the trial court will evaluate when considering the offense as a factor in the question of granting probation.
Thus, the reference to “history” in
Consequently, it is clear to us that the General Assembly intended “history of sex offenses” to include conduct encompassed in the facts and circumstances of the offensе.
Here, we conclude that the defendant had engaged in: (1) soliciting for child prostitution; (2) pandering of a child; (3) procurement of a child for sexual exploitation; and (4) inducement of child prostitution. These offenses are all enumerated sex offenses under
Thus, we reject defendant‘s contention that imposition of sex offender conditions as part of her probation and rеquiring her to register as a sex offender are not authorized by statute.
II.
Defendant also argues the trial court erred in imposing sex offender conditions as part of her probation without ordering a sex offender evaluation as required by
As explained in People v. Lenzini, 986 P.2d 980 (Colo.App.1999), completion of such an evaluation under circumstances such as these is mandatory. Thus, defendant‘s sentence must be vacated and the cause must be remanded for preparation of such a report and for a new sentencing hearing.
III.
Because it may arise on rehearing, we address defendant‘s contention that, since she was not convicted of a “sex offense” within the meaning of
A statute must be read and considered as a whole and should be interpreted so as tо give consistent, harmonious, and sensible effect to all its parts. See People v. District Court, 713 P.2d 918 (Colo.1986).
Applying this principle here, we find no authority for the imposition of the sex offender surcharge on defendant.
Defendant is a “sex offender” bеcause she had a “history” of sex offenses; however, she pled guilty to a crime which is not defined as a “sex offense.” Therefore, the sex offender surcharge may not be imposed.
Because defendant‘s remaining contentions of error are either moot or unlikely to arise on rehearing, we will not address them.
The sentence is vacated, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.
Judge DAVIDSON concurs.
Judge CRISWELL concurs in part and dissents in part.
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dehonna Christine MEIDINGER, Defendant-Appellant.
No. 98CA0923.
Colorado Court of Appeals, Div. I.
Aug. 19, 1999.
The trial court here required defendant to register with local law enforcement agencies, to undergo a sex offender treatment plan, and to pay a sex offender surcharge. Each of these requirements is governed by a separate statutory provision, and those provisions are not uniform in their application to offenders. Consistent with the explicit terms of each of these statutes, I conclude that, while the court properly required defendant to register with local law enforcement authorities, as required by
1. The Registration Requirement
In addition, however,
Any offense that has a factual basis of one of the offenses specified in [the earlier portions of
§ 18-3-412.5(1)(b) ]. (emphasis supplied)
In addition,
of an offense involving unlаwful sexual behavior or for which the factual basis involved unlawful sexual behavior.... (emphasis supplied)
Under the specific terms of this statute, therefore, if the factual basis for the conviction of any offense involves circumstances that would constitute a violation of one or more of the statutes referred to in
Here, defendant was not convicted of any of the specific statutes referred to in
2. The Treatment Requirement
This statute contains an explicit definition of “sex offense,”
Likewise, this statute‘s definition of “sex offender” differs substantially from the registration statute‘s description of the persons to whom that statute applies. Under
- a person convicted after July 1, 1994, of one of the specific offenses described; or
- a рerson convicted of “any criminal offense, if such person has previously been convicted of a sex offense” as described in
§ 16-11.7-102(3) , or “if such person has a history of any sex offenses as defined in [§ 16-11.7-102(3)].” (emphasis supplied)
The majority and I agree that defendant has never been convicted of a “sex offense” under this statute. Nor dоes she have a “history” of any such offenses, as those terms are generally understood and defined in this treatment statute. The majority says, however, that the term “history” is ambiguous because the phrase, “history of sex offenses,” could refer either to “convictions for one or more enumerated sex offenses” or as including “the underlying circumstances of the [present] offense.” I disagree.
The majority and I apparently agree that a statute must be interpreted in accordance with the common and ordinary meanings placed upon the words used by it. See People v. Valencia, 906 P.2d 115 (Colo.1995). Indeed, the General Assembly itself has commanded that statutory “[w]ords and phrases shall be read in context аnd construed according to ... common usage.”
Further, a criminal defendant‘s “history” has acquired a common meaning and is used to distinguish between the events underlying the present offense and events occurring in the defendant‘s past before commission of the offense giving rise to his or her present conviction. See ABA Criminal Sentencing Standards, Standard 18-3.13(d)(3d ed.1994) (restrictions on probation must bear “reasonable relationship to the individual‘s current offense and criminal history” (emphasis supplied)); People v. Leske, 957 P.2d 1030 (Colo.1998) (referring to circumstances surrounding offense and defendant‘s criminal history in the disjunctive); St. James v. People, 948 P.2d 1028 (1997) (same); People v. Brockelman, 933 P.2d 1315 (1997) (same).
I cannot agree, therefore, that the term “history” is in any manner ambiguous. Hence, any reference to legislative history to aid in the construction of this term is both unnecessary and inappropriate. See Anderson v. Watson, 953 P.2d 1284 (Colo.1998); In re Marriage of Pickering, 967 P.2d 164 (Colo.App.1997).
I do note, in passing, that the term “offenses” as used here may be ambiguous because it may refer to a history of prior convictions or merely to a history of prior violations from which no convictions resulted. Here, however, any such ambiguity is irrelevant because defendant has a history of neither.
I am fortified in my conclusion upon this subject by the specific provisions of the registration statute reviewed above. That statute was adopted before the treatment statute, see Colo. Sess. Laws 1991, ch. 69 at 393, et seq., but it has been amended to adopt the present definition of “unlawful sexual behavior” only recently. See Colo. Sess Laws
In contrast, no similar language can be found in the treatment statute. And, while I might wish that the General Assembly had defined “sex offenders” under the treatment statute to include the same persons who are required to register under the registration statute, I am unable to conclude, as does the majority, that the absence of language in the treatment statute evidences an intent to include the language to be found in the registration statute.
3. The Surcharge Statute
The majority concludes that, while defendant is a “sex offender” under
Although I do not employ the majority‘s analysis, I agree that defendant did not commit a sex offense under
In summary, then, while I conclude that