People v. Rockwell

any “knowingly” provided receive in- original will not additional in the court’s You regarding culpable mental struction instructions. Instruction 17 defined “knowingly,” that and, other than con- “knowingly,” state it because that Nos. 17 and 18. tained Instructions of his “aware” conduct or of conduct, of determining jury whether or not the ele- the result reasonable “knowingly” necessarily proved ment of has been be- could have understood that it was doubt, may yond you a reasonable consider to consider the defendant’s “mental slow- intoxication, evidence, any pre- degree other than in determining ness” of his men- case, evidence, Hence, lack sented in this tal awareness. we conclude that of you to bear on element. that believe that supple- there was no error in trial court’s mental instruction. you You that must consid- are reminded er the as a whole. instructions added.)

(Emphasis Y. CONCLUSION appeals court of that reasoned stated, For reasons we reverse the instruction, jury could this have caused to judgment of the court of and remand believe that “mental slowness” constituted to that this case directions to “abnormal mental condition.” It read the this case return to the trial court to reinstate preclud paragraph first of this instruction as judgments following conviction jury considering evidence of crimes; attempted degree murder, second Vanrees’s mental slowness on the issue of assault, attempted degree first Vanrees, knowingly. whether he acted degree burglary. first recognize P.3d at we such a 844. While that paragraph reading of the first of the instruc COATS, J., participate. did not possible, tion the trial court’s stated defini impaired aspect tion of the mental condition insanity technically was correct. We must paragraph first view the this instruc Jury

tion in isolation. instructions must be whole, if, read, they

read as a and when so law,

adequately jury inform of the there Harlan,

is no error. reversible (Colo.2000). Thus, instruc one The PEOPLE of the State of may possible tion ambiguity cure created Colorado, Petitioner, another instruction. See v. Gar cia, 345 n. Analo

gously, may presume we that one section of ROCKWELL, Respondent. Mark E. ambiguity cure instruction created No. 04SC584. within another section instruction. same mind, principles With these note that Colorado, Supreme Court of paragraph the third in- supplemental En Banc. provided struction expressly jury Nov. evidence, “any could consider than in- other toxication, case, presented in or lack this

evidence,” added), (emphasis determining acted “knowingly.” Vanrees Be- jury

cause the instructed it could evidence,” “any

consider we conclude that

paragraph supplemental three instruc-

tion ambiguity cured created

court’s explanation insanity in paragraph addition,

one. In supplemental instruc-

tion jury referred the to the definition of

4H 2—201(5)(a). legisla- sion of section 17— separate ture parole systems established two occurring individuals convicted felonies between and 1996. Martin v. 846, 27 P.3d Most felonious offenders receive sentence to incarceration mandatory period parole. § and a 18—1— However, individuals convicted a sexual offense or crime with a “factual basis” of sexu- al behavior sentence receive to parole incarceration which the board may grant discretionary parole. 17-2- Norton, 201(5)(a); 63 P.3d (Colo.2003). Second-degree burglary with the intent is not a to harass sexual offense. Suthers, General, Attorney W. Mat- John Rockwell that the factual for his claims Holman, Attorney Assistant thew S. First plea second-degree burglary to in- with the General, Denver, for Petitioner. involving tent to “involved an harass offense Baroway, Englewood, Respon- E. Scott for and, therefore, unlawful sexual behavior” dent. unlawfully trial court sentenced him man- to datory parole. summarily The trial court MARTINEZ, Justice. denied motion. Rockwell’s opinion, In this Mark we address Rock- appeals The judg- court of reversed the well’s claim that his sentence was be- ment of court the trial and for remanded mandatory parole. it included cause Ulti- Rockwell, findings. further factual mately, reject argument Rockwell’s (modified (Colo.App.2003) mandatory pa- he could not be sentenced to 2004). reh’g, Apr. on denial of court role because the “factual basis” for his con- of appeals the trial directed court to deter- statutory requirement met the viction of sec- mine whether an unlawful sexual behavior 17-2-201(5)(a), tion that it factual basis for Rockwell’sconviction existed “involved unlawful sexu- based on statements made al behavior.” prosecutor, pre- statements report. sentence Id. The trial court was pled guilty second-degree Rockwell to bur- mandatory pa- directed to vacate Rockwell’s glary with the stemming intent to harass role if sentence basis for unlawful from incident that occurred in 1993. The sexual behavior could be found from those accepted guilty plea Rockwell’s People petitioned sources. Id. The cer- judgment 1994 and deferred his of conviction tiorari appeals’ the court of hold- review and sentence. After Rockwell failed to com- ing. conditions, ply with the and terms the trial court revoked Rockwell’s deferred We reverse court of re- and judgment and sentence 1996. Rockwell mand with directions to affirm the order comply then failed to with the conditions of denying the trial court Rockwell’s motion. probation and the trial court sentenced years Department him to History six in the of Cor- I. and Procedural Facts years mandatory rections and three 9,1993, September On Rockwell into broke in 2000. slept, the victim’s home. While the victim response, brought In her Rockwell Motion to Rockwell entered basement bedroom. Illegal Correct an gave under Rockwell Sentence Criminal two versions of what occurred 35(a) alleging Procedure illegal- Rule he was in the originally victim’s bedroom. Rockwell ly mandatory parole alleged merely pushed sentenced to shoul- instead he the victim’s subject conviction, discretionary parole provi- up. der to wake her After his he burglary underlying factual basis her and touch- lying down beside admitted versions, in a Although the trial court stated charge. area. both vaginal her “factual basis exist[ed] the house when order that a said he exited written Rockwell charged with did not up. entry plea,” Rockwell was the court woke for the victim third-degree burglary second-degree particular find facts specifically burglary charge speci- assault. sexual that conclusion. the home with entered

fied that Rockwell accepted Rockwell’s The trial court third-degree as- to commit in- burglary with the second-degree sault. to harass and deferred tent pled guilty to April two-year period. The de- for a burglary the intent contingent on Rock- judgment was ferred the plea agreement, Pursuant to harass. specific and compliance with terms well’s third-degree sexual court dismissed agreed parties conditions burglary charge was charge. The assault imposed trial court plea agreement. The that Rock- any allegation to remove amended pay requiring that Rockwell court conditions home to commit the victim’s well had entered costs1; drugs and excessive abstain instead third-degree sexual assault and contact with consumption; and avoid alcohol with the intent to that he had entered stated to the issue greater victim. Of interest commit harassment. hand, ordered Rockwell the trial court also at information in the amended The elements as re- specific “offense treatment” to obtain illegal sexual contact. any mention of lacked Department. Sub- quired by the Probation Instead, exclusively to related the elements Department recom- sequently, the Probation burglary with the intent second-degree participate in a sex mended that Rockwell provideney hear- charge. During the harass program. offender treatment infor- read the amended ing, prosecution Rockwell’s the trial court revoked explanation of Rockwell with an mation to judgment and entered a conviction deferred the elements: “offense against complete him for failure to 1993; September the 9th of orOn about Proba- as ordered specific treatment” Douglas County happened here in that this imposed a Department. The court tion Colorado; you Mark state of probation with conditions four-year period of person that were the Edward Rockwell essentially the terms of his de- identical to act; you un- and that did committed the Thereafter, re- judgment. Rockwell ferred knowingly feloniously, break lawfully, proba- of his peatedly the conditions violated remain into and enter and an entrance complete by failing to treatment. tion unlawfully dwelling [the victim] trial court revoked April of you you broke an en- did when him to a probation and resentenced un- and remained into and entered trance years Department in the of Correc- of six dwelling you had the intent lawfully in the three imposed also The trial court tions. crime of harassment commit therein the years mandatory parole. annoy your ... intent to harass and it was by striking, shov- person another or alarm a Motion July Rockwell filed On touching. kicking, or otherwise ing, under Colora- Illegal Sentence to Correct guilty to this statement pled 35(a). Rockwell Procedure He do Rule Criminal burglary with the second-degree elements of crime involved alleged that because intent to harass. of unlawful sexual underlying factual basis behavior, period of im- to a hearing he was entitled provideney time

At no possibility of included the prisonment any type of unlawful admit to did period of discretionary instead of a conduct, court ask nor did the trial sexual mandatory years plus three imprisonment to address prosecution or Rockwell either the surcharge, supervision imposed offender 1. The trial court pay sex Rockwell was not costs. 35(a)

parole. summarily trial court denied a Crim.P. motion for relief from an Rockwell’s motion because defendant illegal “[t]he alleges sentence. Rockwell his man- offense; plead guilty to a did like- datory parole illegal sentence was because he wise, his sentence was for the convicted of crime with an underlying burglary charge, as amended.” factual basis of unlawful sexual behavior. As such, he should have been sentenced to dis- appeals The court of observed that some cretionary parole pursuant to section 17-2- presentence report sup- “evidence” in the 201(5)(a), (2005).3 We hold that Rock- ported a factual for an well’s claim is brought under behavior, unlawful sexual but vacated the 35(a). Crim.P. trial court’s order and remanded the case for Rockwell, findings. more factual A. appeals 903. The court of directed the trial court to determine A challenge im for unlawful sexual behavior existed in Rock- position of an sentence under Crim.P. reviewing well’s case after. the record as a 35(a). Sentences that are inconsistent with Specifically, whole. Id. the court of statutory scheme legisla outlined directed the trial court to review statements illegal. Court, ture are People v. Dist. made statements made 991, (Colo.1983). 995 “Allegations that prosecution, findings presen- in the particular illegal require sentence is void or report. tence If Id. such a factual basis inquiry an subject into jurisdic matter existed, the trial court was instructed to sen- tion of a may court and not be waived.” tence Rockwell to a of incarceration Downing People, 1046, v. 895 P.2d 1050 parole which the board would have the (Colo.1995). Thus, questions of the trial authority grant sole or withhold discre- authority court’s particular to issue a sen tionary parole pursuant to section 17-2- 35(a) properly tence are brought in a Crim.P. 201(5)(a). Id.; Norton, see 63 P.3d at 347. 35(a), motion. Under Crim.P. a court an illegal any correct sentence at time. Id. granted We certiorari and now reverse the Indeed, a trial right court has the appeals of the court of and remand duty to set illegal aside an sentence. proceedings for consistent with opinion.2 this 35(a); People 174, Crim.P. Emig, 177 Colo. Illegal 177, II. Sentence Claim 493 P.2d matter, preliminary As a contrast, 35(c) we consider permits Crim.P. motions People’s argument that Rockwell post-conviction makes for relief from convictions ob- 35(c) a Crim.P. challenging motion the under in tained violation of the Constitution or the lying factual basis for guilty plea, his which laws of the United States or the constitution would People be time barred. The claim or laws of Colorado. Robbins v. that Rockwell’s challenges (Colo.2005). motion the validi Thus, motions ty guilty plea his due to a lack of a challenge validity of a defendant’s supporting factual basis for charge. or the manner which it was taken are Rockwell instead characterizes properly 35(c). his motion as brought under Crim.P. Peo- Specifically, granted 17-2-201(5)(a). we certiorari on the fol- context of section The court of lowing issue: appeal resolved Rockwell's direct on its understanding parties of that term. The also post-conviction challenge Whether a to the fac- argued briefed and that issue before this court. guilty plea tual basis for a constitutes a chal- meaning We find that phrase of the lenge illegal "factual to an sentence under Crim.P. pivotal basis” 35(a) complete is to a resolution of the that can be raised at time. issues at hand and we granted While therefore address it. the issue we certiorari on asks Rockwell's claim was charac- convenience, 35(a) 3. For 35(c) we terized as a Crim.P. motion, refer to the current or a Crim.P. statu- tory compilation parties sought unless otherwise indicated. resolution of the larger statutory When the compilation inap- issue of whether current Rockwell's sentence to is mandatory parole actually plicable illegal. changed significant respect, That de- has we requires explain termination this court to refer the statutes in effect when Rockwell was meaning of the term "factual basis” within the sentenced. discretionary Green, pursuant parole 127 (Colo.App. to the pie v. 17-2-201(5)(a). 35(c) 2001). provision of section Accordingly, Crim.P. motions procedure used questions address argu- To better Rockwell’s understand guilty plea. Section 16-5- accepting when ment, explain the sex offender and non- 402(l)(a), imposes time limita- sentencing sex offender schemes. Mar- bring must tions which defendants Crim.P. tin, 27 P.3d at this court held that the 35(c) motions. legislature systems parole created two felonious offenders convicted of crimes occur- B. ring legisla- between 1993 and 1996.4 The provided ture that most felonious offenders categorizes his While Rockwell claim as plus receive a sentence to incarceration 35(a) challenging imposi- Crim.P. motion period mandatory parole. additional Id. mandatory pa- tion of sentence to offenders, however, Sex receive sentence to role, People allege Rockwell makes a having incarceration with the board related, proeedurally distinct but Crim.P. authority grant parole the exclusive within 35(c) contesting the motion Norton, that sentence. P.3d at 347. Per- claim Rockwell plea. sons convicted of offenses factual basis for convic- challenging sexual behavior crimes were whose commit- second-degree burglary tion to with the in- 1, 1996, July July ted on or after but before instead that the tent harass and maintains 1, 2002, subject discretionary are also facts a conviction for 17-2-201(5)(a.5), parole provisions. § burglary the intent to commit a sexual (2005); Cooper, 27 P.3d People argue appropri- assault. The remedy ate for this claim is the withdrawal 35(c) guilty plea. prop- primary sentencing requires Crim.P. motions scheme erly inadequate claims of factual ba- address individuals convicted of crimes in- guilty plea. generally sis to a See volving unlawful sexual behavior receive (Colo. Schneider, People P.3d mandatory parole v. 25 758 pursuant to sections 17- 2001) 35(c) (finding appropriate 22.5-403(7), motion for a 18-1- C.R.S. upon request guilty plea 105(l)(a)(V), (1999).5 Martin, to withdraw discov- 27 C.R.S. P.3d evidence). ery of a mandatory system, new Without factual ba- parole at 863. a sis, guilty a stand. plea cannot upon felonious is released the com- offender Alvarez, 213, 217, 508 P.2d pletion parole 181 Colo. of his or when the (1973). Because Rockwell’s claim is ready parole. for board determines he is 35(c), Martin, properly brought 17-22-403(7)(a); under Crim.P. § 27 P.3d at 858. release, motion People argue Rockwell’s is time Upon mandatory a the felon receives 16-5~402(l)(a). pursuant parole statutorily barred to section period prescribed 18-l-105(l)(a)(V). § legislature. If a felon however, misinterpret Rock- subject mandatory parole violates the challenging is not argument. well’s parole, an terms of his that felon faces addi- supporting guilty plea his the factual basis Martin, period tional confinement. second-degree burglary with at P.3d 858. contrary, Rockwell harass. contends On system, discretionary parole In the for his in- the factual basis also peri- the defendant to -supports cludes sexual behavior and sentences parole burglary with the od of incarceration and the board has intent to conviction, exclusive to release an offend- commit assault and he discretion a sexual prison completion er from accordingly. wishes sentenced Rock- before to be Norton, aIf basis sentence. 63 P.3d at 347. sex well claims that the factual of his con- parole prison, impose trial court to offender is released requires viction 1—105(l)(a)(V) complete history mandatory 5. Section is now codified in 4. For of the 18— schemes, Martin, 18-1.3-401(1)(a)(V)(A), discretionary parole see section Cooper, P.3d at 849-51 352-54 length entirely upon term set board for a is whether there was a factual up the remainder of the of time unserved unlawful sexual behavior. years, portion of his sentence or five which- A mandatory parole sentence to when the 17-2-201(5)(a); Martin, § ever is less. offender should receive sentence with the subject at If a felon 860. to discre- possibility discretionary parole is inconsis- tionary parole pa- breaches the terms of his statutory tent with the scheme outlined role, he could be forced to serve the remain- legislature. Rockwell claims his sentence original der of the term. Id. at 858. This mandatory parole provisions under the in- length origi- term not exceed the discretionary stead of the parole provisions is nal sentence. Id. contrary statutory beyond scheme and legislature determined certain of authority. the trial court’s His claim prop- engaged sexually-related 35(a) fenders erly crimes brought under Crim.P. because he eligible discretionary parole should be illegal.7 claims his sentence is do not We completion before the of their sentences to People’s argument address the that Rock- 2—201(a)(5) incarceration. Id. Section al well’s claim is time barred because we con- 17— grant discretionary parole 35(a) lows the Board to brings clude that Rockwell a Crim.P. (1) for individuals who are convicted of an motion. unlawful sexual behavior as 16-22-102(9), Determining defined III. a Factual Basis (2) (2005), or convicted of offense for Having decided Rockwell’s mo “which the factual basis involved an offense tion to correct an prop sentence was involving unlawful sexual behavior” for erly brought 35(a), under Crim.P. we next prior July crimes committed 1996.6 consider appropriately whether Rockwell was 17-2-201(5)(a); Martin, § see mandatory parole. sentenced to Felonious As an offender who committed crime legally offenders are sentenced under the 1, 1996, July July between 1993 and Rock- discretionary parole provisions they if are subject mandatory well is to either convicted of a sexual offense or discretionary parole provisions depending crime with underlying “factual basis” of upon offense, the factual basis for his 17-2-201(a)(5). rather unlawful sexual behavior. than on the nature of his conviction. Second-degree He burglary with intent to harass alleges illegally he was sentenced to manda- is not an unlawful sexual behavior crime. tory parole. Thus, § The trial court lack would the 16-22-109. whether incarceration authority mandatory to sentence Rockwell to possibility with the discretionary parole underlying if the “factual basis” for a depends lawful sentence on whether Rock charge involved unlawful sexual behavior. well’s crime included a “factual basis of un 2—201(5)(a). § Whether a 17-2-201(a)(5). sentence to in- § lawful sexual behavior.” 17— possibility carceration with the of discretion- Applying this reasoning, line of court of the ary parole depends this case remanded Rockwell’s case for fur- 6. sentencing At the time of tempt, conspiracy, Rockwell’s or solicitation to commit legislature the discussed crimes of "unlawful sex- those crimes. ual behavior” in section 18-3-401 to section 18- 3-405.5, seq. They et included sexual assault in 7. We have raising sometimes resolved cases 18-3-402, (1999); degree, the first section C.R.S. 35(c) by addressing illegal Crim.P. issues sen degree, sexual assault in the second section 18- tencing. Craig (Colo. People, In v. 986 P.2d 951 3-403, (1999); C.R.S. sexual assault in the third 1999), alleged imposition the defendant the 18-3-404, (1999); degree, section C.R.S. mandatory parole plea agreement, violated his child, 18-3-405, assault on a (1999); section C.R.S. rendering Martin, guilty plea involuntary. by sexual assault on a child one in a 27 originally challenged P.3d the defendant trust, 18-3-405.3, position of C.R.S. validity the of his advisement in relation to man (1999); by psy- and sexual assault on a client a datory parole. by While we 18-3-405.5, resolved both cases (1999) chotherapist, section C.R.S. addressing legality imposed, the of the legislature as sentences sexual assault crimes. The cur- rently both brought claims were defines "unlawful sexual under behavior" in sec- 16-22-102(9), 35(c) they tion challenged proce C.R.S. Crim.P. because includes a the larger number of offenses and the at- criminal dure used to obtain the defendant's conviction.

417 rely may guideposts ex- further on other to dis- findings on whether a factual basis ther whole, including meaning intended the statuto- the record cern the when isted from charges, ambiguous the that he if original requirement ry language is or the term treatment, specific statutory pro- the defen- appears to conflict with other obtain offense statements, state- prosecution’s Cooper, P.3d at 354. Traditional dant’s visions. ments, presentence report. history, pri- Rock- guideposts legislative and the include the well, law, interpreta- consequences given P.3d at 903. We must decide or tion, interpretations, within meaning agency of the term “factual basis” and the overall Id.; sentencing legislature scheme to determine to achieve. Colorado’s end intended 2-4-203, (2005); § Rockwell should have received whether Schubert mandatory pa- (Colo.1985). to incarceration with 793-94 discretionary possibility with the role or statutory language If the has a clear parole. meaning, provi our task is construe the commonly accept in accordance with sion A. particular meaning or of the ed technical People argue phrase that “factual 2-4-101, (2005); Reg’l words. particular meaning in the con- basis” has Voss, Tramp. Dist. v. legislature 11 and text of Crim.P. generally presume We un- meaning. Specifically, understood legislature previously is aware of ex 11, a factual can be estab- der Crim.P. pressed importance legal of the words and by provideney hearing suf- lished Guenther, phrases it uses. judge a trial ficient evidence which Martin, (Colo.1987); 27 P.3d at can be' fairly conclude a defendant if he or she stand trial. convicted chooses to argue that can a factual basis B. by the record only be established evidence on second-degree pled guilty when Rockwell precedent a clear Our has established burglary with the intent harass. this meaning term A fac “factual basis.” case, only the elements of bur- unlawful can be tual basis for sexual behavior glary the intent to harass were on (1) by made established statements provideney hearing. at the record defendant, stipulated or fact-finding facts however, contends, of a facts found includes the record Rock- crime as whole. argument jury.8 agree People’s with the We original re- points charges, well supported factual basis is sufficient that a quirement complete specific that he hearing. at the provideney offered evidence treatment, presentence report to es- evidence, judge must be From this basis of sexual be- a factual tablish fairly conclude could able to havior. to, if the pled of the crime be convicted ABA elected to stand trial. Stan defendant meaning of interpreting When the 14-1.6, cmt. for Criminal Justice dards term, goal the statutory a our is to effectuate (1986). Assembly. Reg’l of the General 1187, First, factual Lopez, precedent supported 1190 our has Tramp. Dist v. 916 P.2d Maes, (Colo.1996); types on of ad- 907 various Lakeview v. basis determinations Assoc. (Colo.1995). Traditionally, 580, necessity, by the By we missions defendant. P.2d 584 has in the context initially plain language the for di this discussion occurred examine hearings.9 upheld a provideney We have Lopez, 916 P.2d at 1190. The the rection. 412, Carino, course, People plea agreement. 193 Colo. establish- v. 8. a defendant waive the Of 1061, 414, 11(b)(6); 1063 People 566 P.2d a basis. ment of factual Crim.P. 1384, (Colo.1989). Fleming, P.2d A v. 781 1388 requires when the the to determine waiver occurs defendant excuses 11 trial court 9. Crim.P. a specific a a sufficient factual basis exists factual basis for establishment it, finding accepting explanation guilty plea unless the charge for the before after a full of the basis 418 upheld basis determination when defen- a factual basis

factual determination date, time, 17-2-201(5)(a.5) admitted to the elements dant upon context of find Fleming, crime. v. 781 P.2d Pahlavan, ings by jury. made 83 (Colo.1989). 1384, Similarly, we 1388 held 1138, 1143 denied, (Colo.App.2003), P.3d cert. existed when the defen- that factual basis (Colo.2004). Pahlavan, 2004 296954 WL you to “that with which are admitted dant jury by the defendant was convicted Cushon, charged.” People v. 650 P.2d jury kidnapping. That same (Colo.1982). ruled We have also that 528 specific findings made factual defen by during question- the defendant admissions kidnapping dant’s offense included a sexual by judge related criminal receiving mandatory assault. Id. After support a factual determina- conduct basis term, the defendant his sen contested Carino, 412, 414, People v. 193 tion. Colo. sought possibility tence of discretion Thus, P.2d 1062 we ary parole. appeals The court of on relied repeatedly upheld factual determi- have basis jury special finding the defendant by nations on admissions the defendant. engaged in a sexual assault to hold 1388-89; Cushon, Fleming, at 781 P.2d factual underlying basis for the defendant’s Colo, 528; Carino, at included unlawful sexual behavior. at 1062. Id. assault is one of Sexual the offenses listed Second, approved we have factual basis in the definition of unlawful sexual behavior. by stipulated to the defen- 16-22-102(9). determinations approve We court of People, dant. Wilson v. 708 P.2d appeals’ reasoning jury finding that a can (Colo.1985), upheld a factual 798-99 basis basis of unlawful sexual upon determination that rested the affidavits behavior. psychiatrists who examined the of two defen- right

dant. The defendant waived his to an implies, the name As the “factual ba evidentiary hearing and did not contest the sis” consists those facts which establish trial court’s reliance on the affidavits. Id. at that an offense has been A fac committed. Thus, the factual 795. basis Wilson (1) by tual can be basis determined stipulated stemmed from outside sources defendant, by facts admitted to facts by Similarly, the defendant. Id. at 798-99. fact-finding stipulated or Wright Generally, jury. facts found these (Colo.1984), this court relied on defen- and, facts sustain elements of the offense stipulation probation dant’s report therefore, However, support a conviction. could used to establish a factual basis for may go beyond necessary these facts what is considering when whether the defen- establish element of the offense. charges dant understood the nature of the the conduct of the defendant against him. The factual in both Wil- him that makes of a deter crime as Wright son and stemmed from outside admitted, aby mined court from the facts stipulated sources the defendant. Wil- stipulated, by jury. or found son, 798-99; Wright, P.2d at 690 P.2d at Thus, repeatedly upheld we have fac- C. tual basis determinations when stipulated to findings facts or factual made inquire We legislative need into the judge or another reliable source.10 history statutory or other tools of construc- Third, language this court and if the court tion the of the statute is clear and upheld factual have determinations based on unambiguous. Town v. Lot Telluride of jury findings. Recently, Venture, L.L.C., 30, of Thirty-Four the court 35 3 P.3d However, People Fleming, a factual plea. basis is waived. v. the de- also mentioned that 1384, (Colo.1989). P.2d 781 1388 agreed providency Canino at fendant in hear- probation support report use of the . Canino, 207, People v. 10 In 508 P.2d 181 Colo. 210, Id. at We read offense. 508 P.2d 1273. language sweeping 1273 we used that opinion. Canino as consistent with this suggest probation be could misread to that report always support could the factual basis of a

419 crime, assault, (Colo.2000). concerning a only to show that sexual that We do so here history our not contradict those crimes as well should be crimes legislative does interpretation register of “factual basis”. as offender^] where the need they since sex offenders sex offenders are legis made before Statements that factual basis. proof are committee not conclusive lative Martin, n. intent. 27 P.3d at 853 legislative 96-1181, Hearing H.B. H. on Ju- Before however, do, guidance They provide Comm., Assem., diciary 60th Gen. 2d Sess. Hyland (citing interpreting (Feb. the statute. Id. 1,1996) (discussing the term in context & Recreation Dist. v. Denver Hills Park & genetic get of which offenders needed to (Colo. R.G.W.R.R., 569, n. 7 testing probation). as a condition of their 1993) (statements legislators of individual Dunbar did that individuals While Ms. state hearings indicate during committee made pled guilty might to a who non-sexual intent)). persuasive legislative While less underlying qualify as sex offenders if the of a de legislator a statement than suggested, factual basis so she did not ex- bate, testimony congressional before com plain how the factual basis should be deter- helps understanding illustrate mittee mined. and, thus, identify legis helps legislators Similarly, testimony before the Senate Ju- intent. lative did diciary Committee not indicate a clear 1996, Judiciary House Committee for legislative intent how a factual basis Judiciary dis- and the Senate Committee should be formed. Director of the Colorado “any phrase offender convicted cussed Attorney Ray Slaughter District Counsel ex- ... factual basis an offense which the phrase plained that the “takes care of Alford an offense unlawful sexual involved pleas.” pleas arise out of the United Alford Deputy Dis- some detail. Chief behavior” Supreme Court’s decision in North States Attorney explained Laura trict Dunbar Alford, 400 91 S.Ct. Carolina U.S. Judiciary House phrase to the Committee. case, the 27 L.Ed.2d 162 In that pled indicated that individuals who She Supreme that a United States Court held might qualify offenses as sexu- to non-sexual pro- plead guilty could even if he underlying if an al offenders sexual innocence, if plea comported that tested however, Dunbar, Ms. never basis existed. requirements and was with Constitutional for- explained how a factual basis should be supported by a factual Id. at basis. phrase: mulated. She stated that the 160; People Darlington, see S.Ct. have as their offense[s] includes as which (Colo.2005); Birdsong, People v. offense, factual basis a sexual but what By entering an may happen in the the criminal course of merely plea, the defendant consents Alford they get plea bargained to a non- case is imposition of a and a sen- conviction ... example, related For sexual offenses. maintaining innocence. tence while his or her entry into burglary, there is an where Slaughter’s P.2d at Birdsong, 958 1127. Mr. consent, home their someone’s without that, imply in reference to comments least charged bur- it’s [and] actions, pleas, the defendant’s and not Alford attempted ... glary [and] often times alone, underlying can or a sexual assault sexual assault of a offense. Mr. factual basis sexual might ... some evidence [T]here occur Slaughter did not state how such a factual problems around one crimes but found. basis could be other, offenses are sometimes those offenses, just of these comments illustrate pled to non-sexual such as Neither they intended that the “factual ba- second-degree burglary, legislature involve but 17-2-201(5)(a) ... ... offenses the intent of sis” determination and so changes any respect prior our case proposed ... would be when differ in contrary complete underlying In the absence of there is still law.11 contrary testing potentially Department Correc- DNA in a manner 11. We are aware meaning regula- purposes plain of the statute. The constructs “factual basis" for the to the tions intent, presume legis- by prosecution, that the legislative presen- made and the previously expressed un- report. appeals’ our tence Within the court of lature knew of framework, derstanding specific language and intend- alleges original Rockwell Martin, meaning. charges, requirement complete ed to effectuate that he treatment, specific P.3d at 855. presen- report tence establish a factual basis of un- D. lawful sexual behavior. We will address each arguments of Rockwell’s in turn. explained, an offender law- As we have fully to incarceration with sentenced People originally charged Rockwell discretionary parole if possibility of he com- second-degree burglary with the intent or a mitted a sexual offense crime with a to commit a third-degree sexual assault and of unlawful sexual behavior. “factual basis” sexual assault. Rockwell did not admit to 17-2-201(5)(a). To a factual ba- establish charges. contrary, those On the judge fairly must be able to sis the trial specifically plead guilty chose not to to sec conclude that the defendant could be con- ond-degree burglary with the intent to com involving unlawful victed of a crime sexual mit a sexual pled assault. He instead 16-22-102(9) behavior if he under second-degree burglary with the (1) trial from elected to stand statements Simply bringing charges against harass. defendant, by made facts or fact- defendant does not establish a factual basis defendant, finding stipulated by or for those offenses without a or case, jury. by facts found this Rock- jury Indeed, verdict. fundamentally it is un illegally mandatory well was sentenced to charges against fair to use a defendant when parole if a factual basis of unlawful sexual he does not opportunity have the to contest behavior existed. case, them. this neither the second-de gree burglary with the intent to commit a Application IV. sexual assault nor third-degree turn to whether the “factual We now ba- assault were admitted to Rockwell or sis” of Rockwell’s crime “involved an offense by jury. found Without an admission or a involving unlawful sexual behavior.” The verdict, jury original charges against legal claim Rockwell received sen- Rockwell cannot establish factual basis of nothing tence because in the record at the unlawful sexual behavior. guilty plea supports time of his 1994 a sen- discretionary parole provi- tence under the A factual basis of unlawful sexual behavior Specifically, they argue par- sions. also cannot lie the trial court’s order re- facts, any ties did not quiring assert the trial specific Rockwell to obtain “offense findings court did not make required by which treatment if probation de- would that Rockwell partment.” establish committed a authority The trial court had the crime unlawful sexual behavior. to order Rockwell specific to obtain offense appeals disagreed The court of and remand- regardless treatment of whether he was a ed the case to the trial court to review the sex offender. The trial court has broad dis- original charges, requirement imposing Rock- cretion when the conditions of a treatment, specific well obtain offense probation state- deferred to “insure ments made statements that the defendant law-abiding will lead a life "[rjefer broadly contrary legislative tions the define "factual basis” to Dept. intent. Barnes v. during Revenue, Div., actual conduct of the offender Motor Vehicle regulations look crime." The to "the Presen- (Colo.App.2000). prior prece While our case (PSIR) Investigation Report police tence or [the] requires judge dent the trial to look to the actual description report of the offender's actual offender, Leske, conduct of the see conduct the crime” to formulate "factual (Colo.1998), precedent our fur 700-19, Dept, Reg. of Corrs. basis.” Admin. art. requires police ther that the use of PSIRs or IV(A) (2005). agency’s interpretation While an reports stipulated the defendant. Wil deference, entitled to statute is our court is son, 798-99; Wright, 708 P.2d at 690 P.2d at agency interpretation not contrary bound that is plain meaning aof statute or doing presentence report’s in so.” the assist the defendant core use to establish and to 16-11-204(1), (1994)12; § see charge, C.R.S. of the can it a elements Blizzard, SeeWilson, factual basis determination. ability specific treat- to order offense The Nothing sug- ease 798-99. in this court’s included within the trial ment is gests requested stipulated that Rockwell or 16-7-403(2), § C.R.S. broad discretion. presentence report to the use of the at the 16~ll-204(2)(a)(II), (1994)13; C.R.S. provideney hearing. time of (1994).14 Furthermore, the record while record, a review of noth- After the we find that trial court sen- not indicate does suggest that to stipulated to Rockwell specifically offender Rockwell to sex tenced by an facts found external source. Without treatment15, not es- such a sentence would any evidentiary stipulations, only we can look subject to Rockwell was entitled to be tablish by the to admissions defendant to establish a discretionary parole provisions. The factual basis of unlawful sexual behavior. by imposed a a fact that sentence is mere case, only by this admission the defen- not basis trial court does establish a factual hearing provideney dant at the time puts It for that sentence. the cart before was the elements the offense as contained argue a sex imposition horse to in the amended information. Rockwell ad- proves sentence that the conviction offender by plead- mitted the elements of the offense by a supported is ing guilty explanation as An of the offense appropriate factual ba- sexual behavior. by prosecution provided sis trial court in the informa- must be established before the Nguyen, the man- sentences a defendant under either tion. discretionary

datory provisions; elements, (Colo.App.1995). or as admitted otherwise, may (1) or a be unlawful by established: the time subject (2) conviction to a successful crime, place of the that Rockwell challenge. appropriate Without evidence crime, (3) committed the un- that Rockwell conviction, supporting requirement victim, lawfully dwelling entered specific obtain treat- that Rockwell offense dwelling that Rockwell broke into the ment does not establish a “factual basis” with the commit the crime of 17-2-201(5)(a). by section harassment, and the crime of harassment requires annoying, harassing, intentional or presentence report sustain also cannot person alarming by “striking, another shov- for unlawful sexual behavior. §§ ing, kicking, touching.” or 18- otherwise Generally, presentence report cannot es- 4-203, 18-9-111, (2005). Nothing in C.R.S. a factual basis tablish for an offense because admitted, necessarily second-degree burglary the elements of it does not reflect facts Only unlaw- stipulated, jury. or found when intent to harass establishes an act of requests stipulates to the ful the defendant sexual behavior.16 16-11-204(1) Furthermore, 12. Section is now codified in sec- of this section. section 16-11.7- 18-1.3-204(1), (2005). offenders, requires C.R.S. tion treatment but the for sex probation only required terms of Rockwell's him 16-7-403(2) is 13. Section now codified in section specific to obtain "offense treatment if ordered 18-1.3-102(2), (2005). C.R.S. department.” probation Because section Rockwell, apply we re- 16-11.7-105 does 16-ll-204(2)(a)(II) 14. Section is now codified argument. ject this 18-1.3-204(2)(a)(II), (2005). section argument, attorney noted 16.In Rockwell's oral erroneously argues that he was sen- 15. Rockwell entry computer registry con- of actions offender treat- tenced as sex to sex offender charged cerning the entitled “converted 16-11.7-105, pursuant ment questioned entry description." He whether this nothing We can find record to on the implied the trial amended the court had pursuant indicate that he was sentenced charge. description” indicates "Converted Regardless, spe- provision. section 16-11.7-105 management computer court's case event in the cifically applies to "sex sentenced offender[s] marking system data entered conversion of ... or after offense[s] the court for committed on program predecessor data burglary to different fields January 1994.” The program. September in the successor This on maintained committed occurred 9, 1993, catego- prior applicability change date in the manner in which data which any does not majority, The record below include Unlike the I consider it clear that defendant, by the facts or fact- the challenges admissions defendant’s claim validity the (with finding stipulated by to the of his burglary or a conviction for the intent harass), jury legality verdict which formulates a factual basis rather than the of his any maj. sentence for that conviction. op. of unlawful sexual behavior. Without See evidence, trial supporting no factual basis of un- court found a factual basis for offense, judgment lawful sexual behavior exists this case. entered for that of- fense, court, therefore, legally imposed trial and sentenced sentence mandated legislature mandatory parole. the for that offense. The defen- dant does not illegality assert Conclusion imposed V. for the offense for which plea accepted; he asserts that the We reverse the court of (what supports entry record plea of a appeals and remand with directions to affirm is) in effect altogether. a different offense denying the order Rockwell’s motion to cor- Because rect an court never sentence. found a fac- tual basis for unlawful sexual behavior and accepted never based on such concurring Justice COATS in the behav- ior, the judgment only, challenge defendant’s joins and Justice the factual KOURLIS only basis for his secondarily impli- the concurrence. legality cates the of his sentence. Even ac- COATS, concurring Justice in the cording to theory, the defendant’s his sen- judgment only. illegal only tence is to the extent that I majority’s judgment concur in the re- failing erred in judg- to find and enter versing holding (what appeals. of the court of be) ment on the defendant considers to however, agree, Because I do not mitigation for his burglary. crime of Such a defendant’s claim is characterized claim challenge does not legality of a sentence, as a motion an illegal to correct sentence within contemplation of Crim. 35(a). and brought pursu- therefore that it 35(a) be P. Were Crim. P. to extend so 35(a), ant to Crim. P. I far, would find it virtually unneces- any challenge to a defendant’s sary to reach the merits of the claim. Fur- conviction could be couched in terms of its thermore, if I necessary even considered it secondary sentence, effect on obliterating merits, does, reach majority as the any I 35(a) distinction between Crim. P. easily believe the matter is 35(c), resolved refer- Crim. P. separate purposes applicable themselves, ence to the statutes and limitations of each. broadly

without defining the term “factual Permitting such brought claims to be purposes. basis” for all challenges to authority, jurisdiction, Although wholeheartedly agree I court, the sentencing without time limitation pled guilty kind, neither to “an offense of particularly is problematic in the involving unlawful sexual behavior” nor to an context of sex sentencing. offender In Mar- offense “for which the factual basis involved tin v. (Colo.2001), 27 P.3d 846 an offense unlawful sexual behav- held in effect general that when the assembly ior,” 2—201(5)(a), section I changed sentencing scheme in 1993 to 17— separately explain why write I felony believe the mandate that peri- sentences include 35(a) majority’s treatment of Crim. P. and its parole supervision od of extending up to five exegesis of the term “factual years basis” should beyond the term of incarceration im- (and viewed with caution court, outside the narrow posed by the it exempt intended to sex unusual) highly offenders, context of a criminal defen- despite expressly naming them seeking dant to be classified as a sex offend- singling them out longest possi- for the er, actually which is today. before the court ble “mandatory parole.” Since computer program expressed rized imply any change charged in the offense. registry is not a court order and does not time, other, classifying any particular defendant, an offense as one of the sex the will 17-2-201(5) likely offenses described has length turn on the of the defendant’s particular significance sentence, had conse- original as well as his assessment often, however, quences. It unclear of the likelihood that he will be released on parole consequences (rather later) whether the section parole sooner than 17-2-201(5) advantageous will be or disad- sentence, of service and the likelihood vantageous particular for defendant until parole keep board will decide to him (and after) after sometimes well he has been (rather supervision under for a shorter than sentenced. longer) period of time. majority Although the refers to the two- Because pleading defendant to a crime system parole including track as “mandato- (or having a involving) ry” “discretionary” maj. parole, op. unlawful sexual certainly behavior will almost 415-416, system parole mandating no of re- be register as a sex offender eligible lease when an inmate becomes for upon custody, release from he will remain parole jurisdiction has existed in this for subject to supervision, a form of even after regime, decades. Under current once a being parole. released from His consider- statutorily eligible pa- becomes for (or in seeking avoiding) ations classification role, it is within the parole discretion of the as a sex complex offender will therefore be release, grant deny generally board to or likely change, long plea after his has parole, regardless to set the conditions of his been entered. Once it becomes clear to a of the track in which a defendant’s conviction unlikely defendant that granted he is to be places Although length parole him. of parole, already whether or not he has been felony governed for offenses other than those rejected; or once the unserved remainder of 17-2-205(5) ostensibly section is mandat- small, his sentence to incarceration becomes statute, period ed even that time can be mandatory parole relative to the for his level shortened in the discretion of the board. See felony, of advantages being of classified 18-1.3~401(l)(a)(V)(B), (2005). § C.R.S. likely as a sex offender are to rise in his real difference between the two tracks or calculations. It is clear to me that P. Crim. systems parole resides in the fact that the 35(a) was not permit intended to defendants “mandatory” period parole, required by to seek classification as a sex offender based 18-1.3-401, may imposed, section be particular crimes, on the facts of their it once or not that amount of time remains unserved advantageous particular becomes for their court-imposed on the defendant’s sentence to situation.

incarceration. The defendant in this case first moved for Therefore whether a defendant’s offense is 17-2-201(5) correction of an serving sentence after treated section as a sex of- not, years more than year fense or two of a six eligible parole he becomes for considerations, years according entering and some six after the same his bar- statute, parole gained-for plea. By grant easily board has the same he could discretion deny parole. eligible parole by Because a sex have become offender time. kept §§ parole supervision could be under See for as 17-22.5-403 and long years, pursuant articulated, as five already to section 17-2- For the reasons I have I 201(5), statutorily prescribed while the period believe his claim challenge raises a parole validity for non-sex offenses could be as low of his conviction rather than the le- year, may actually as one a sex gality offender his sentence. Even if he were able subjected longer period parole than if permit- to couch his claim in terms otherwise he were convicted for an ting post-conviction offense not involv- a motion for pursu- relief However, 35(e), unlawful sexual behavior. be- ant to Crim. P. I would find his chal- cause a parole lenge six-year-old sex offender cannot be held on to his time-barred. any longer McPherson, remaining than the on See 681- incarceration, Cummins, his sentence to (Colo.App.2001); the advanta- geousness opposed of one track (Colo.App.2001). as to P.3d enumerated as unlawful sexual If, majority, I considered it neces- themselves like expressly behavior. Since the statute merits of the defendant’s

sary to reach the prohibits person being deemed to claim, from the context I find it clear would convicted of an offense the un- have been “factual legislature used the term derlying basis of which involves un- to the factual basis re- basis” reference behavior, lawful sexual unless the prior accep- jurisdiction quired in this specifies person conviction legisla- plea. tance of specifies convicted of such an offense and sexually-related the class of expanded ture particular crime of unlawful sexual be- 17-2-201(5)(a), governed section offenses 16-22-103(2)(c)(IV). havior involved. See offense, description from “a sex changing the 16-13-202(5), merits, defined I to reach the I would there- Were find, Act 1968]” Offenders of fore from the statutes themselves and Colorado Sex [The developed in involving behav- without reference to case law “an unlawful sexual offense purposes, other contexts and for other that a involved an for which the factual basis ior or offense, pled guilty to a behavior, defendant has sex involving unlawful sexual offense only if registration purposes, both and 18-3-412.5(1), C.R.S. [Sex defined in section pled to which he was itself an the offense duty register penalties].” offenders' — — of unlawful sexual behavior or if the offense construction, in disjunctive lifted its en- This found, accepted, and the defendant statute, registration included tirety from the pled a factu- the offense to which he included in- any “for which the basis involving al unlawful sexual behavior. involving unlawful sexual volved an offense Because, however, I consider it clear that the behavior,” offense “involv- addition alleges claim defendant’s failure sen- Consequent- ing” sexual behavior. alleges tence him for the offense he that he majority ly, unnecessary for the plainly it is committed, actually rather than a failure to “factual basis” to in- expansively define legally him for the offense to which sentencing factors found clude elements pled guilty, he I would hold that his claim they already by a trier of fact are because was not raised as a motion to cor- “involving” unlawful sex- included as offenses sentence, pursuant P. rect an to Crim. Rather, maj. op. at 418. it ual behavior. See 35(a). clause, disjoined ref- seems manifest the factual basis erencing only offenses “for which I therefore concur in the of majority. unlawful sexual I am authorized involved an offense to state behavior,” clearly specifically joins added JUSTICE KOURLIS this concur- guilty pleas for which no such rence. encompass existed,

finding for which a factual basis but accept

sufficient to did. history language and insuffi-

Were this itself, general assembly has

cient now, reorganization with COLORADO WATER CONSERVATION (cross-referenced registration BOARD, in the Objector/Appellant/Cross- statutes 17-2-201(5)(a), Appellee. 2002 amendment to section (2005)), persons who specified will of an of- be “deemed to be convicted CENTRAL, OF CITY fense, underlying of which Applicant/Appellee/Cross-Appellant, ” involves unlawful sexual behavior.... See and 22—103(2)(c), While the 16— County Denver, provisions City acting more recent alter somewhat the requiring registration, through formula for offenses its Board of Water Commis- sioners; City Arvada; City applica- own terms limit their Black their Thornton; City bility July Hawk; City to convictions entered after of West- minster; City Northglenn; they clarify legislature’s I believe Board of County Gilpin Coun- respect to the inclusion of offenses not Commissioners

Case Details

Case Name: People v. Rockwell

Court Name: Supreme Court of Colorado

Date Published: Jan 9, 2006

Citation: 125 P.3d 410

Docket Number: 04SC584

Court Abbreviation: Colo.