Peo v. Johns

24CA0484 Peo v Johns 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0484
Jefferson County District Court No. 05CR3194
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Stephen Raymond Johns,

Defendant-Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE WELLING
Grove and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Stephen Raymond Johns, Pro Se
¶1 Defendant, Stephen Raymond Johns, appeals the trial court’s

order denying his Crim. P. 35(a) motion to correct an illegal

sentence. We affirm the trial court’s order but remand the case for

correction of the mittimus.

I. Background

¶2 Johns was charged with class 3 felony sexual assault in

violation of section 18-3-402(1)(a), (4)(a), C.R.S. 2005. According to

the complaint, Johns committed sexual assault in 2005. In 2006,

Johns pleaded guilty to an added class 4 felony sexual assault

charge in violation of section 18-3-402(1)(a), in exchange for

dismissal of the class 3 felony sexual assault charge. The motion to

add the second count also alleged that Johns committed sexual

assault in 2005. In his petition to enter a guilty plea, Johns stated

that he fully understood that if the court accepted his plea of guilty

to class 4 sexual assault, he “may be sentenced to an indeterminate

term of imprisonment in the Department of Corrections.” Johns

also stated in the petition that he fully understood that the court

could “grant [him] an indeterminate period of probation for a period

of at least 10 years and up to a maximum of [his] natural life.”

1
¶3 The trial court sentenced Johns to a term of five years to life in

the custody of the Department of Corrections to be served

consecutively to a sentence in another case. He was credited for

312 days of time served. The mittimus, however, didn’t specifically

state the terms of Johns’ parole upon his release. After sentencing,

Johns moved to withdraw his plea and objected to the introduction

of prior bad acts at sentencing. The trial court denied his motion

and Johns appealed. A division of this court affirmed the trial

court’s ruling. People v. Johns, (Colo. App. No. 06CA1858, Jan. 17,

2008) (not published pursuant to C.A.R. 35(f)).

¶4 Years later, Johns filed a Crim. P. 35(a) motion to correct an

illegal sentence. In that motion, he contended that his sentence

was illegal and must be corrected to (1) “the allowable 5 years to the

Colorado Department of Corrections” and (2) reflect “parole in

accordance with §[ ]17-2-201(5)(a.5), C.R.S. [2024] . . . which is to

be discretionary and not mandatory.” Approximately two months

after Johns filed his motion, the trial court ordered him to

supplement his Crim. P. 35(a) motion “with a short and precise

statement of two things: 1) what he believes is illegal about the

sentence imposed in 2006; and 2) what he is asking the Court to do

2
to correct it.” In his supplemental motion, Johns clarified that he is

contending that his indeterminate sentence isn’t authorized by

Colorado law and that he is subject to discretionary, not

mandatory, parole. He also requested that the court correct his

sentence by amending the mittimus. The trial court denied Johns’

Crim. P. 35(a) motion, finding that his sentence isn’t illegal. Johns

appeals this order.

II. Analysis

¶5 Johns contends that the trial court erred by denying his Crim.

P. 35(a) motion because (1) his indeterminate sentence is illegal and

(2) he is subject to a discretionary parole term but was improperly

sentenced to a mandatory parole term. We address and reject each

of Johns’ contentions in turn.

A. Standard of Review and Applicable Sentencing Scheme

¶6 Pursuant to Crim. P. 35(a), “[t]he court may correct a sentence

that was not authorized by law or that was imposed without

jurisdiction at any time.” A sentence is illegal if it’s “inconsistent

with the terms specified by statutes.” People v. Tennyson, 2023

COA 2, ¶ 10 (quoting People v. Green, 36 P.3d 125, 126 (Colo. App.

3
2001)), aff’d, 2025 CO 31. We review the legality of a sentence de

novo. Id. at ¶ 9.

¶7 The Colorado Sex Offender Lifetime Supervision Act of 1998

(SOLSA), sections 18-1.3-1001 to -1012, C.R.S. 2024, applies to

“any person who commits a sex offense on or after November 1,

1998.” § 18-1.3-1012. Johns pleaded guilty to having committed

sexual assault in 2005, in violation of section 18-3-402(1)(a), C.R.S.

2005. Thus, SOLSA is applicable to Johns’ sentence and is the

statutory scheme we must follow when determining the legality of

his sentence.

B. Indeterminate Sentence

¶8 We first address Johns’ contention that the indeterminate

nature of his sentence is illegal. We disagree with this contention

and conclude that the sentence the court imposed is legal under

SOLSA.

¶9 Subject to exceptions not applicable here, SOLSA provides

that, for the offense Johns pleaded guilty to, “the district court

having jurisdiction shall sentence a sex offender to the custody of

the [Department of Corrections] for an indeterminate term of at least

the minimum of the presumptive range specified in section 18-1.3-

4
401 for the level of offense committed and a maximum of the sex

offender’s natural life.” § 18-1.3-1004(1)(a), C.R.S. 2024 (emphasis

added). Our supreme court has construed section 18-1.3-

1004(1)(a) as requiring an indeterminate sentence for a class 4

felony sex offense “consisting of an upper term of the sex offender’s

natural life and a lower term of a definite number of years, not less

than the minimum nor more than twice the maximum of the

presumptive range authorized for the class of felony of which the

defendant stands convicted.” Vensor v. People, 151 P.3d 1274,

1279 (Colo. 2007).

¶ 10 In 2006, for persons sentenced for a class 4 felony committed

on or after July 1, 1993, the presumptive sentencing range — used

to calculate the lower limit of a sentence under SOLSA — was a

minimum of two years imprisonment and a maximum of six years

imprisonment. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2006. As noted

before, the upper limit was to be a maximum of the defendant’s

natural life. § 18-1.3-1004(1)(a); see also Vensor, 151 P.3d at 1279.

¶ 11 The trial court sentenced Johns to a term of five years to life in

the Department of Corrections. Pursuant to section 18-1.3-

1004(1)(a), the indeterminacy of the sentence — that is, that the

5
sentence’s upper limit is the rest of Johns’ natural life — is

required. See Vensor, 151 P.3d at 1279. And the minimum term of

the sentence — five years — is proper because it’s not less than the

minimum term of two years for a class 4 felony in section 18-1.3-

401(1)(a)(V)(A), C.R.S. 2006, nor is it greater than twelve years,

which is twice the maximum of the presumptive range for a class 4

felony. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2006; § 18-1.3-1004(1)(a);

see also Vensor, 151 P.3d at 1279.

¶ 12 Thus, Johns’ indeterminate sentence to the Department of

Corrections is legal.

C. Parole

¶ 13 Next, we address Johns’ contention that his sentence is illegal

because the parole term imposed by the trial court is mandatory

rather than discretionary. Again, we disagree with Johns, though

we agree that the mittimus must be amended to properly reflect the

appropriate parole sentence.

¶ 14 According to SOLSA, “[t]he period of parole for any sex

offender convicted of a class 4 felony shall be an indeterminate term

of at least ten years and a maximum of the remainder of the sex

offender’s natural life.” § 18-1.3-1006(1)(b), C.R.S. 2024 (emphasis

6
added). In People v. Tucker, a division of this court examined this

provision and determined that section 18-1.3-1006(1)(b) “plainly

requires mandatory minimum periods of parole” but the “overall

statutory scheme . . . makes it clear that the [parole] board’s

decision to release offenders on parole contains elements of

discretion.” 194 P.3d 503, 504 (Colo. App. 2008); see also § 17-2-

201(5)(a.7), C.R.S. 2024 (if a person is sentenced under SOLSA for

an offense committed on or after November 1, 1998, “the [parole]

board shall grant parole or refuse to grant parole, fix the conditions

thereof, and set the duration of the term of parole granted pursuant

7
to” SOLSA).1 The Tucker court never explicitly characterized the

parole requirements under SOLSA as mandatory or discretionary.

194 P.3d at 504. Rather, the division concluded that the best

practice is to identify on the mittimus the statute under which

parole is determined rather than characterizing parole as either

mandatory or discretionary. Id.

1 Johns seemingly contends that section 17-2-201(5)(a.7), C.R.S.

2024, requiring parole to be determined pursuant to SOLSA, isn’t
applicable. To support this contention, and the contention that
parole must be discretionary, he also cites multiple cases in which
the sexual offense occurred either before the enactment of SOLSA,
see People v. Cooper, 27 P.3d 348, 349 (Colo. 2001); Martin v.
People, 27 P.3d 846, 848 (Colo. 2001), or before July 1, 2002, see
People v. Tolbert, 216 P.3d 1, 3 (Colo. App. 2007); People v. Huber,
(Colo. App. No. 03CA1579, Dec. 16, 2004) (not published pursuant
to C.A.R. 35(f)). But none of these cases render section 17-2-
201(5)(a.7) inapplicable to Johns’ sentence because the date of his
class 4 sexual offense was February 2005. Currently, and at the
time of Johns’ sentencing, section 17-2-201(5)(a.5) states, “Except
as otherwise provided in paragraph (a.7) of this subsection (5), as to
any person sentenced for conviction of an offense involving unlawful
sexual behavior . . . committed on or after July 1, 1996, but prior to
July 1, 2002, the [parole] board has the sole power to grant or
refuse to grant parole and to fix the condition thereof . . . .”
(Emphasis added.) Because the date of Johns’ offense was in 2005,
section 17-2-201(5)(a.5) wasn’t applicable to his case; rather section
17-2-201(5)(a.7), controlled his sentence.

8
¶ 15 In Johns’ case, the mittimus makes no mention of mandatory

or discretionary parole. Indeed, the mittimus doesn’t reference

Johns’ parole at all.

¶ 16 Because SOLSA requires an indeterminate sentence for sex

offenders and because the trial court never characterized Johns’

parole as mandatory, the trial court didn’t err by denying his Crim.

P. 35(a) motion. The trial court, however, should have stated on the

mittimus that Johns’ parole is determined according to section 18-

1.3-1006(1)(b). See Tucker, 194 P.3d at 504. We, therefore, remand

to the trial court to correct the mittimus to state that Johns’ parole

shall be determined according to section 18-1.3-1006(1)(b). See

Crim. P. 36 (“Clerical mistakes in judgments, orders, or other parts

of the record and errors in the record arising from oversight or

omission may be corrected by the court at any time and after such

notice, if any, as the court orders.”).

III. Disposition

¶ 17 The order is affirmed, and we remand the case to the trial

court to correct the mittimus to state that Johns’ parole shall be

determined according to section 18-1.3-1006(1)(b).

JUDGE GROVE and JUDGE JOHNSON concur.

9