Hudnall v. Board

24CA1482 Hudnall v Board 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1482
Fremont County District Court No. 23CV30018
Honorable Lynette M. Wenner, Judge

Samantha Hudnall,

Plaintiff-Appellee and Cross-Appellant,

v.

Board of County Commissioners of Fremont County, Colorado,

Appellant and Cross-Appellee,

and

Brandon Lucero,

Defendant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SCHUTZ
Fox and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

Mehr Law, PLLC, Kevin Mehr, Colorado Springs, Colorado, for Plaintiff-Appellee
and Cross-Appellant

Nathan Dumm & Mayer, PC, J. Andrew Nathan, Timothy M. Walsh, Denver,
Colorado, for Defendant-Appellant and Cross-Appellee

Robert D. Sheesley, Rachel Bender, Denver, Colorado, for Amicus Curiae
Colorado Municipal League
Samuel J. Light, Nick Cotton-Baez, Denver, Colorado, for Amicus Curiae
Colorado Intergovernmental Rish Sharing Agency

Hall & Evans, L.L.C., Andrew D. Ringel, Denver, Colorado, for Amicus Curiae
Colorado Counties, Inc.

No Appearance for Defendant
¶1 The Board of County Commissioners of Fremont County (the

County) appeals the district court’s entry of separate judgments

against it and in favor of appellees, Samantha Hudnall and Marisa

Palmas, for damages they incurred after Deputy Brandon Lucero

sexually harassed them.1 We affirm the judgments.

I. Factual Background

¶2 Lucero was a detention deputy for the Fremont County

Sheriff’s Office. He worked at the Fremont County Jail, where both

Hudnall and Palmas were incarcerated.

¶3 In October 2021, Hudnall reported to Lucero’s commander

that Lucero had made inappropriate comments to her over the jail

intercom system while observing her showering, passed lewd notes

into her cell, and forcibly kissed her in her cell. The notes included

comments about watching Hudnall walk to and from the shower,

romantic song lyrics, and sexual suggestions. During a subsequent

interview, Hudnall reported that Lucero made several sexually

targeted comments, including that he enjoyed watching her shower

1 Hudnall and Palmas filed separate lawsuits in Fremont County

District Court against Lucero and the County, Fremont County
Case Nos. 23CV30018 and 23CV30019.

1
and seeing her naked, and that he “wanted to have babies with

her.”

¶4 A month after Hudnall’s report, Palmas revealed that she too

received notes from Lucero asking about her relationship status

and if she was willing to pursue a relationship with him. Palmas

reported that Lucero said he watched her shower and made other

sexually aggressive statements. Palmas also described an incident

where Lucero entered her cell and touched her waist and face

before leaving when her sleeping cellmate stirred.

¶5 After completing its investigation, the County fired Lucero, and

the district attorney charged him with a class 6 felony (felony sexual

conduct in a correctional institution) and a class 2 misdemeanor

(first degree official misconduct). In July 2022, Lucero entered into

a deferred judgment and sentence, pleading guilty to the

misdemeanor charge of official misconduct. The court accepted the

plea, dismissed the felony, and sentenced Lucero to a twelve-month

deferred judgment and sentence, to be supervised by the probation

department.

¶6 Lucero’s guilty plea provided, “If I violate any . . . term or

condition of [the sentence], then the [district court] may, after [a]

2
hearing, revoke my deferred sentence, find me guilty, and sentence

me to any sentence authorized by law.” Lucero successfully

completed the deferred judgment and sentence in July 2023, and

the court dismissed the charges against him.

¶7 The attorney representing Hudnall and Palmas reached out to

the County in December 2022 to discuss the lawsuits that his

clients intended to file against Lucero. The County forwarded the

demand letter to its insurer. Thereafter, the County informed

counsel that it would not indemnify Lucero or otherwise participate

in the litigation. Counsel responded that regardless of the County’s

decision whether to indemnify Lucero, the County would be

obligated to satisfy any uncollectible portion of any judgment that

might be entered against him. The County disagreed and stood on

its decision not to participate in the lawsuits.

II. Procedural History

¶8 Hudnall and Palmas filed their claims for damages under

section 13-21-131(4)(a), C.R.S. 2025, which was adopted as part of

the Enhance Law Enforcement Integrity Act (ELEIA) and provides as

follows:

3
[1] Notwithstanding any other provision of law,
a peace officer’s employer shall indemnify its
peace officers for any liability incurred by the
peace officer and for any judgment or
settlement entered against the peace officer for
claims arising pursuant to this section; except
that, if the peace officer’s employer determines
on a case-by-case basis that the officer did not
act upon a good faith and reasonable belief
that the action was lawful, then the peace
officer is personally liable and shall not be
indemnified by the peace officer’s employer for
five percent of the judgment or settlement or
twenty-five thousand dollars, whichever is less.
[2] Notwithstanding any provision of this
section to the contrary, if the peace officer’s
portion of the judgment is uncollectible from
the peace officer, the peace officer’s employer
or insurance shall satisfy the full amount of
the judgment or settlement. [3] A public entity
does not have to indemnify a peace officer if
the peace officer was convicted of a criminal
violation for the conduct from which the claim
arises unless the peace officer’s employer was
a causal factor in the violation, through its
action or inaction.

¶9 Lucero failed to respond to either complaint, and the district

court entered a clerk’s default against him in both cases. See

C.R.C.P. 55(a). Hudnall and Palmas subsequently moved for the

entry of default judgments. The district court entered judgment in

favor of Hudnall in the amount of $81,637, inclusive of accrued

interest, attorney fees, and costs. C.R.C.P. 55(b). The court entered

4
judgment in favor of Palmas in the amount of $46,720, inclusive of

accrued interest, attorney fees, and costs.

¶ 10 Hudnall and Palmas served creditor’s interrogatories on

Lucero, but he did not respond. The court ordered Lucero to show

cause why he should not be held in contempt in both cases. Lucero

failed to respond, and warrants issued for his arrest. In March

2024, Hudnall and Palmas filed motions to enforce the judgments

against the County as Lucero’s former employer.

¶ 11 The County filed responses opposing the motions. The County

did not contest that the judgments were uncollectible from Lucero.

But the County argued that under the clear and unambiguous

terms of the third sentence of section 13-21-131(4)(a), it had no

obligation to indemnify Lucero because he had been convicted of a

criminal violation for the conduct that gave rise to the judgments.

5
This contention, among others, formed the basis of the County’s

motions for dismissal under C.R.C.P. 12(b)(5).2

¶ 12 In their responses and replies, Hudnall and Palmas argued

that Lucero’s guilty plea did not relieve the County of its obligation

to satisfy the judgments. Rather, they argued, the County was

obligated to satisfy the judgments because they were uncollectible

against Lucero and the County’s liability to them was independent

of any obligation to indemnify Lucero.

¶ 13 Alternatively, Hudnall and Palmas argued that even if the

court accepted the County’s interpretation of section 13-21-

131(4)(a), the County was obligated to satisfy the judgments

because Lucero was not convicted of a crime. On the contrary, they

argued, no conviction was entered against Lucero because he

successfully completed his deferred judgment and sentence.

2 The County also argued that it was not a party to the case and

had never been properly served or joined in the action, and
therefore judgment could not be entered against it. Hudnall and
Palmas responded to this argument by filing motions for permissive
joinder of the County in both actions. The district court granted the
joinder motions, and the County does not challenge these orders on
appeal.

6
¶ 14 The district court granted the motions to enforce the

judgments against the County. The court reasoned that under the

plain and unambiguous language of the second sentence of section

13-21-131(4)(a), the County was obligated to satisfy the judgments

because the judgments were uncollectible against Lucero, and this

obligation was independent of the County’s obligation to indemnify

Lucero.

¶ 15 The County moved for reconsideration. It argued that section

13-21-131(4)(a) did not authorize a claim for relief against it. And,

again relying on Lucero’s guilty plea and the third sentence of

section 13-21-131(4)(a), the County argued it had no obligation to

indemnify Lucero and therefore no liability to Hudnall or Palmas.

¶ 16 The district court denied the motions to reconsider. After

quoting the Black’s Law Dictionary definitions of “indemnify” and

“satisfaction,” the court concluded that the terms have different

meanings and that the General Assembly selected the respective

terms to address different circumstances. The court then reiterated

its conclusion that the “indemnify” language of section 13-21-

131(4)(a) related to the County’s obligation relative to the peace

officer, while the use of the word “satisfy” related to the County’s

7
obligation to pay any judgments entered against a peace officer.

The court reasoned that its conclusion gave effect to the different

terms adopted by the General Assembly and all the language in

section 13-21-131(4)(a). The County appeals this ruling.

¶ 17 Notwithstanding its interpretation of the statute, the district

court also addressed Hudnall and Palmas’s argument that the

deferred judgment and sentence was not a conviction. On this

issue, the court agreed with the County, concluding that despite

Lucero’s successful completion of the deferred judgment and

sentence, he nevertheless “was convicted” of a criminal violation

consistent with how that phrase is used in the last sentence of

section 13-21-131(4)(a). Hudnall and Palmas cross-appeal this

ruling.

III. Analysis

¶ 18 The parties acknowledge that their differing interpretations

concerning the indemnify and satisfy language of section 13-21-

131(4)(a) is rendered moot if we conclude that Lucero was not

convicted of a criminal violation. We agree. Based on the

unambiguous language of the statute, if Lucero was not convicted

8
of a crime, the County must satisfy the Hudnall and Palmas

judgments. Thus, we begin by addressing this issue.

A. The District Court’s Ruling and the Parties’ Contentions

¶ 19 The district court began by acknowledging that Lucero

successfully completed his deferred judgment and sentence. It then

quoted section 18-1.3-102(2), C.R.S 2025, for the proposition that,

“[u]pon full compliance with [the deferred judgment and sentence’s]

conditions by the defendant, the plea of guilty previously entered

shall be withdrawn and the charge upon which the judgment and

sentence of the court was deferred shall be dismissed with

prejudice.”

¶ 20 Despite this language, the court concluded that Lucero “was

convicted” of a criminal violation. The court cited two additional

statutes to support this conclusion.

¶ 21 First, the court quoted section 18-1.3-107(8)(c), C.R.S. 2025,

which provides, “‘Conviction’ or ‘convicted’ means a verdict of guilty

by a judge or jury or a plea of guilty or nolo contendere that is

accepted by the court . . . . ‘Conviction’ or ‘convicted’ also includes

having received a deferred judgment and sentence.”

9
¶ 22 Next, the court turned to section 16-7-206(3), C.R.S. 2025,

which provides, “[A] plea of guilty acts as a waiver by the defendant

of the right to trial by jury on all issues including the determination

of the penalty to be assessed, and the acceptance of such plea also

acts as a conviction for the offense.” From these two statutes, the

court reasoned that Lucero “was convicted of a criminal violation.”

¶ 23 On appeal, Hudnall and Palmas argue that, because Lucero

successfully completed his deferred judgment and sentence, he was

not convicted of a criminal violation; instead, his plea was

withdrawn and no conviction was entered against him. Moreover,

they note that unlike the definitions relied on by the district court,

the word “convicted” is not defined in section 13-21-131(4)(a) to

include pleas to a deferred judgment and sentence. Moreover,

Hudnall and Palmas note that when the General Assembly intends

an expansive definition of the term “convicted” to include a deferred

judgment and sentence, it says so expressly. And they cite another

provision of ELEIA and other statutes that reflect the General

Assembly’s use of such expansive definitions when intending a

broad application of the term “convicted.” In the absence of such a

legislative directive, Hudnall and Palmas argue the district court

10
erred by concluding that Lucero was convicted of a crime based on

the same conduct that gave rise to their judgments.

¶ 24 In contrast to the position it took in the district court, the

County argues on appeal that the third sentence of section 13-21-

131(4)(a) is ambiguous. Nonetheless, it reasons that the district

court correctly resolved the ambiguity by concluding that the

phrase “was convicted” applies to a successfully completed deferred

judgment and sentence. For the first time on appeal, the County

also argues that the opposite conclusion would deprive it of due

process and lead to an unfair and unreasonable result that is

contrary to the General Assembly’s intent. Finally, the County

argues — again for the first time on appeal — that the district court

incorrectly concluded that Lucero was a peace officer when he

committed the underlying acts.

¶ 25 Hudnall and Palmas claim that the County did not argue in

the district court that the phrase “was convicted” was ambiguous or

that the interpretation argued by Hudnall and Palmas would render

the statute unconstitutional. They also note that the County never

contended in the district court that Lucero was not acting as a

peace officer at the time of his tortious conduct.

11
B. Preservation

¶ 26 Subject to limited exceptions not applicable here, we will not

address arguments raised for the first time on appeal. Gold Hill

Dev. Co., L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 18.

¶ 27 In civil cases, an argument is preserved for appeal when it is

presented to, considered by, or ruled upon by a district court.

Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25. The asserting

party must present “the sum and substance of the argument” to the

district court. Id. (quoting Madalena v. Zurich Am. Ins. Co., 2023

COA 32, ¶ 50). If a district court rules on an issue that was not

clearly presented by the parties or rules on an issue sua sponte, the

issue is preserved for purposes of appeal. See Brown v. Am.

Standard Ins. Co. of Wis., 2019 COA 11, ¶¶ 21-23; Battle N., LLC v.

Sensible Hous. Co., 2015 COA 83, ¶ 13.

¶ 28 The County does not point to any portion of the record where

it preserved an argument that the statute was ambiguous or

unconstitutional, or that the interpretation of the statute urged by

Hudnall and Palmas would render the statute unconstitutional.

The County acknowledges that it did not argue that the statute was

unconstitutional below but asserts on appeal that it is only

12
challenging the “district court’s interpretation of [the statute].” As

Hudnall and Palmas correctly note, however, the County’s

arguments are not based on the district court’s interpretation of the

statute, but rather on the alleged ambiguities resulting from the

specific language of the statute itself. And this contention is

directly contrary to the County’s repeated arguments below that the

statute is clear and unambiguous, and that its interpretation was

supported by the statute’s clear terms.

¶ 29 Unsurprisingly, the district court did not address any

arguments that section 13-21-131(4)(a) was ambiguous or

unconstitutional. Thus, except to the extent that our de novo

review requires us to determine whether the phrase “was convicted”

is ambiguous — and if so to resolve any ambiguities — we decline to

address the County’s constitutional contentions. See, e.g., O’Quinn

v. Baca, 250 P.3d 629, 630 (Colo. App. 2010) (generally, we do not

consider challenges to the constitutionality of a statute that are

raised for the first time on appeal).

¶ 30 Similarly, the County did not argue below that Lucero was not

a peace officer when he sexually harassed and assaulted Hudnall

and Palmas. And because that issue was not contested, the district

13
court did not address it. Accordingly, we conclude this issue is also

unpreserved and do not address it further. Gold Hill, ¶ 18.

C. Standard of Review

¶ 31 We review the interpretation of a statute de novo. People in

Interest of G.S.S., 2020 CO 32, ¶ 11; Cisneros v. Elder, 2022 CO

13M, ¶ 21. Whether a statute is ambiguous is a question of law

that we review de novo. Mounkes v. Indus. Claim Appeals Off., 251

P.3d 485, 487 (Colo. App. 2010).

D. Rules of Statutory Construction

¶ 32 “In construing a statute, we aim to effectuate the legislature’s

intent.” Elder, ¶ 21. We therefore “consider the entire statutory

scheme to give consistent, harmonious, and sensible effect to all of

its parts, and we construe words and phrases in accordance with

their plain and ordinary meanings.” Id. (quoting Ryser v. Shelter

Mut. Ins. Co., 2021 CO 11, ¶ 14). And we avoid statutory

interpretations that lead to an absurd or illogical result. Tucker v.

Volunteers of Am. Colo. Branch, 211 P.3d 708, 711 (Colo. App.

2008), aff’d, 242 P.3d 1080 (Colo. 2010).

¶ 33 Only if a statute is ambiguous — “that is, reasonably

susceptible to more than one interpretation” — do we use other

14
interpretive aids to discern the legislature’s intent, Nieto v. Clark’s

Mkt., Inc., 2021 CO 48, ¶ 13, including the object sought to be

attained, the circumstances under which the statute was enacted,

and the legislative history, if any. § 2-4-203(1)(a)-(c), C.R.S. 2025.

E. Is the Phrase “Was Convicted” Ambiguous?

¶ 34 As previously noted, the parties have different perspectives on

whether the phrase “was convicted” — as used in the third sentence

of section 13-21-131(4)(a) — is ambiguous with respect to whether

it encompasses a successfully completed deferred judgment and

sentence. Both parties’ positions have some initial appeal. As

Hudnall and Palmas argue, the phrase “was convicted,” in and of

itself, or even in the context of the other words used in section 13-

21-131(4)(a), is not inherently ambiguous.

¶ 35 On the other hand, as the County notes, the supreme court

has counseled that “[t]he term ‘conviction’ may be interpreted

differently depending upon the statute in which it is used and the

issue in a particular case.” Hafelfinger v. Dist. Ct., 674 P.2d 375,

376 (Colo. 1984). The supreme court has also counseled that “in

construing the word ‘conviction,’ the key factor to be considered is

the legislative intent behind the use of the word in the statute

15
involved.” Id. at 377. Thus, depending on the context of the statute

and the General Assembly’s intent, the phrase “was convicted” is

susceptible to more than one meaning. We therefore agree with the

County’s argument that the meaning of “was convicted” in the third

sentence of section 13-21-131(4)(a) is ambiguous. See Benefield v.

Colo. Republican Party, 2014 CO 57, ¶ 11 (If statutory language is

subject to “more than one reasonable understanding, it is

considered to be ambiguous and must be construed.”).

F. The Statutory Provisions Cited by the District Court

¶ 36 The district court’s analysis relied in large part on sections 18-

1.3-107(8) and 16-7-206(3). We conclude that the court’s reliance

on these statutes was misplaced.

¶ 37 Section 18-1.3-107 addresses the circumstances in which a

criminal defendant may obtain “collateral relief in the criminal case

for the purpose of preserving or enhancing the defendant’s

employment or employment prospects and to improve the

defendant’s likelihood of success in the community.” § 18-1.3-

107(1). To further these ends, the criminal court may enter

[a]n order of collateral relief [that] may relieve a
defendant of any collateral consequences of
the conviction, whether in housing or

16
employment barriers or any other sanction or
disqualification that the court shall specify,
including but not limited to statutory,
regulatory, or other collateral consequences
that the court may see fit to relieve that will
assist the defendant in successfully
reintegrating into the community.

§ 18-1.3-107(3).

¶ 38 The central purpose of section 18-1.3-107 is to assist criminal

defendants’ reintegration into the community. In this remedial

context, the General Assembly included an expansive definition of

conviction so that the benefits of collateral relief would apply not

only to someone who was found guilty and served their sentence,

but also to those who successfully complete a deferred judgment

and sentence.

¶ 39 In contrast to the rehabilitative purposes of section 18-1.3-

107, section 13-21-131 is intended to address the circumstances in

which a government entity is responsible for paying a judgment

entered against a peace officer who violated a citizen’s

constitutional rights. Given the disparate purposes of these

statutes, we do not see how section 18-1.3-107 is instructive to our

interpretation of section 13-21-131(4)(a). This conclusion is

amplified by the fact that section 13-21-131(4)(a) uses only the

17
undefined phrase “was convicted,” while section 18-1.3-107(8)(c)

contains an expansive definition of conviction that encompasses a

successfully completed deferred judgment and sentence.

¶ 40 Nor are we persuaded that section 16-7-206(3) is instructive.

While the district court correctly quoted the statute’s language that

the acceptance of a guilty plea “acts as a conviction for the offense,”

that does not complete the pertinent analysis.

¶ 41 In Hafelfinger, the supreme court cited section 16-7-206(3)

when concluding that the phrase “record of conviction” included a

then-uncompleted deferred judgment and sentence. 674 P.2d at

376. The district court cited the Hafelfinger decision to support its

interpretation of section 13-21-131(4)(a), as does the County on

appeal. But they fail to note that, in Hafelfinger, the supreme court

also stated the following:

The question of whether a person has a record
of “conviction” . . . after successfully
completing the period of the deferred sentence
is not before us. We note, however, that under
our statutory scheme, the defendant in such a
case would no longer be “convicted.” For the
purposes of the statute, [the predecessor to
section 18-1.3-102(2)] provides in pertinent
part: “Upon full compliance with [the
conditions of deferral imposed] by the
defendant, the plea of guilty previously entered

18
shall be withdrawn and the action against the
defendant dismissed with prejudice.”
(Emphasis added.) When the plea is
withdrawn, the earlier acceptance of the guilty
plea by the court is vitiated and section 16-7-
206(3) does not apply. Moreover, C.R.E. 410
would apply to such a situation. C.R.E. 410
states in pertinent part: “Except as otherwise
provided by statutes of the State of Colorado,
evidence of a plea of guilty, later withdrawn,
. . . to the crime charged or any other crime,
. . . is not admissible in any civil or criminal
action, case, or proceeding against the person
who made the plea or offer.” Thus, evidence of
the guilty plea is no longer admissible after
successful completion of the period of the
deferred sentence.

Hafelfinger, 674 P.2d at 377 n.3; see also Weber v. Colo. State Bd. of

Nursing, 830 P.2d 1128, 1133 (Colo. App. 1992) (“[A] professional

licensing board may not discipline a licensee under § 12–38–

117(1)(b)[, C.R.S. 1991,3] who has successfully completed a deferred

judgment for having been convicted of a felony or having pled guilty

to a felony.”).

¶ 42 In People v. Perry, 252 P.3d 45 (Colo. App. 2010), a division of

this court addressed whether a person who pleaded guilty to a

3 The statute was subsequently amended and now provides a

definition of “convicted” that expressly includes “imposing a
deferred sentence.” § 12-255-120(1)(b)(II)(a), C.R.S. 2025.

19
deferred judgment and sentence on a sexual offense was required to

register as a sex offender. In doing so, the panel was required to

interpret the interplay of three statutory provisions addressing sex

offender registration requirements. Id. at 47-48.

¶ 43 Section 16-22-103(1)(a), C.R.S. 2025 requires registration for

any person who “was convicted on or after July 1, 1991, in the state

of Colorado, of an unlawful sexual offense.” See Perry, 252 P.3d at

47. Relatedly, section 16-22-102(3), C.R.S. 2025, provides as

follows:

“Convicted” or “conviction” means having
received a verdict of guilty by a judge or jury,
having pleaded guilty or nolo contendere,
having received a disposition as a juvenile,
having been adjudicated a juvenile delinquent,
or having received a deferred judgment and
sentence or a deferred adjudication.

Emphasis added.

¶ 44 On the issue of deregistration, section 16-22-113(1)(d), C.R.S.

2025, authorizes a person to petition to deregister from the sex

offender registration list if they successfully complete a deferred

judgment and sentence and have not been subsequently convicted

of any offense having a factual basis that involved unlawful sexual

behavior. Perry, 252 P.3d at 47. Relatedly, section 16-22-

20
113(3)(b)(II), C.R.S. 2009, excluded certain persons from eligibility

to deregister, including “[a]ny person who is convicted as an adult

of sexual assault on a child.” See Perry, 252 P.3d at 47.

¶ 45 The district court, applying these provisions, concluded that

Perry was not eligible to deregister because, despite the successful

completion of his deferred judgment and sentence, he still “is

convicted” of the underlying sexual offense. On appeal, the panel

reversed the district court’s order. Id. at 50.

¶ 46 The panel began by recognizing that these statutory provisions

created uncertainty whether a person who successfully completed a

deferred judgment and sentence could petition to deregister. Id. at

47-48. Recognizing this tension, the panel framed the issues as

follows:

Whether there is any contextual obstacle to
applying the definition of “convicted” in section
16–22–102(3) to the “is convicted” language of
section 16–22–113(3)(b)(II) turns on the
subsidiary question of whether the phrase
“having received a deferred judgment” . . .
includes a person who has “successful[ly]
complet[ed] [a] deferred judgment and
sentence” within the meaning of section 16-22-
113(1)(d). If read in a vacuum, the phrase
“having received a deferred judgment and
sentence” in [section] 16–22–102(3) could be
construed as applying beyond the time that a

21
deferred judgment remains in effect because,
arguably, an offender who has received a
deferred judgment does not lose his status as a
past recipient of a deferred judgment when the
case is dismissed based on his successful
completion.

Perry, 252 P.3d at 48.

¶ 47 In resolving the tension, the panel relied on Hafelfinger’s

reasoning that a defendant who pleads guilty to a deferred

judgment and sentence has a conviction for purposes of the statute

governing recognizance bonds. Id. at 49 (citing Hafelfinger, 674

P.2d at 377 n.3). But once a defendant successfully completes a

deferred judgment and sentence he is no longer convicted for the

purposes of that statute. Id.

¶ 48 Applying this rationale, the panel concluded that the tension

in the registration statutes could be obviated by interpreting “is

convicted” to mean that a person who has received a deferred

judgment and sentence only stands convicted until the successful

completion of the deferred judgment and sentence, and after the

successful completion, the defendant is no longer convicted of the

criminal offense. Id.

22
¶ 49 The supreme court again interpreted the deregistration statute

in People v. McCulley, 2020 CO 40, ¶ 29. The court framed the

issue as

whether a defendant who successfully
completes a deferred judgment nevertheless
“has [a] conviction” for purposes of the
eligibility bar in section 16-22-113(3)(c). If a
successfully completed deferred judgment
counts as a “conviction,” McCulley is ineligible
to petition to deregister because he “has more
than one conviction” for unlawful sexual
behavior. But if, like subsection (3)(b)
discussed in Perry, the context of subsection
(3)(c) indicates that a “conviction” does not
include a successfully completed deferred
judgment, then McCulley has only one
conviction for unlawful sexual behavior — the
misdemeanor to which he pled guilty — and he
is therefore eligible to petition the court for an
order discontinuing his requirement to
register.

Id. at ¶ 27. The supreme court concluded that because McCulley

had successfully completed the deferred judgment and sentence for

his felony sexual assault conviction, he no longer “has more than

one conviction.” In reaching this conclusion, the court

characterized the analysis of the panel’s decision in Perry as

“instructive and persuasive” id. at ¶ 28, and relied on Hafelfinger for

the proposition that “a defendant [who has successfully completed a

23
deferred sentence and adjudication] generally is no longer

‘convicted,’” id. ¶ 14 (citing Hafelfinger, 674 P.2d at 377 n.3).

¶ 50 Applying the reasoning of Hafelfinger, Perry, and McCully, we

disagree with the district court’s conclusion that the term

“conviction,” as used in section 13-21-131(4)(a), includes a

successfully completed deferred judgment and sentence.

G. ELEIA’s Separate Expansive Definition of Conviction

¶ 51 Hudnall and Palmas point to section 24-31-904(1)(a)(I), C.R.S.

2025, which was also passed as part of ELEIA, to support the

conclusion that the phrase “was convicted,” as used in section 13-

21-131(4)(a), was not intended to apply to a successfully completed

deferred judgment and sentence. Section 24-31-904 addresses the

circumstances in which the Peace Officers Standards and Training

(P.O.S.T.) board4 must permanently revoke a peace officer’s

certification. In this context, consistent with ELEIA’s broad

purpose to protect the public against peace officers’ violating

persons rights under article II of the Colorado Constitution, section

24-31-904(1)(a)(I) provides, in part, that revocation is required if

4 The P.O.S.T. board serves to certify and discipline peace officers

for certain conduct. See § 24-31-904, C.R.S. 2025.

24
“[t]he P.O.S.T. certified peace officer is convicted of or pleads guilty

or nolo contendere to a crime involving the unlawful use of physical

force.” In this context, the General Assembly did not use the word

“convicted” in isolation, but rather added words to make sure that

the revocation requirement applies not only to convictions but also

to pleas of guilty and nolo contendere.

¶ 52 As Hudnall and Palmas also note, the General Assembly’s

reference to guilty pleas in section 24-31-904(1)(a)(I) would be

superfluous if the term “conviction,” in isolation, included all pleas

of guilty — which is the interpretation the County relies on to

conclude that Lucero was convicted when he pleaded guilty to the

misdemeanor and received a deferred judgment and sentence, even

though he successfully completed the sentence.

¶ 53 The County’s brief does little to address the impact of section

24-31-904(1)(a)(I)’s additional language when considering the

General Assembly’s decision to use only “was convicted” in section

13-21-131(4)(a). Its sole argument on the issues is that Hudnall

and Palmas overlook “another important aspect of section 904(1) —

the term [convicted] is not defined in that statute either.”

25
¶ 54 But this argument is nonresponsive. The salient point is that,

absent a controlling definition of convicted, section 24-31-

904(1)(a)(I) used supplemental language to extend that term to

cover other types of criminal dispositions — like a guilty plea — that

do not always result in the entry of a conviction as that term is

used in other circumstances.

¶ 55 In sum, the General Assembly’s use of the phrase “was

convicted,” without reference to a deferred judgment and sentence,

coupled with its decision to use broader language addressing other

criminal dispositions in section 24-31-904(1)(a)(I), supports a

conclusion that the phrase “was convicted” in section 13-21-

131(4)(a) was not intended to encompass a successfully completed

deferred judgment and sentence.

H. Other Statutes that Define Conviction to Include a Deferred
Judgment and Sentence

¶ 56 Hudnall and Palmas argue that when the General Assembly

intends to apply the term “conviction” to a deferred judgment and

sentence, it has used broad language that directly reflects that

purpose. As an example, they point to section 23-5-124, C.R.S.

2025, which generally prohibits a person who “is convicted of a riot

26
offense” from enrolling in a state-financed institution of higher

education for a period of twelve months following the date of

conviction. In that context, section 23-5-124(6)(a) defines the term

“convicted” to include “having received a verdict of guilty, pleaded

guilty or nolo contendere, or having received a deferred judgment

and sentence.”

¶ 57 Similarly, they cite statutes related to the licensing and

regulation of mental health professionals. In that arena, the

General Assembly enacted section 12-245-224(1)(a), C.R.S. 2025,

which prohibits certification of a person who “[h]as been convicted

of or pled guilty or nolo contendere to a felony or to any crime

related to the person’s practice, or received a deferred sentence to a

felony charge.” Here again, the General Assembly used express

language, alongside the word “convicted,” to make clear that it

intended to include a deferred judgment and sentence within the

purview of conviction.

¶ 58 The County does not respond to these citations and

arguments and does not otherwise explain why the General

Assembly has expressly referred to a deferred judgment and

sentence when seeking to include it within the term “convicted.”

27
¶ 59 The cited statutes provide additional support for the

conclusion that when the General Assembly intends to use a more

expansive definition of convicted to include a deferred judgment and

sentence, it says so expressly. And the absence of that language in

section 13-21-131(4)(a) indicates the General Assembly did not

intend it to apply to a successfully completed deferred judgment

and sentence.

I. Past Tense of “Was Convicted”

¶ 60 The County attempts to distinguish Hafelfinger, Perry, and

McCulley by noting that the General Assembly used the phrase “was

convicted” in section 13-21-131(4)(a) rather that “is convicted,”

which was the statutory language at play in Perry. The argument

has some initial appeal because the term “was” typically signifies

past tense. See Merriam-Webster Dictionary,

https://perma.cc/NQE6-NDLS (defining “was” as the “past tense

first- and third-person singular” form of “be”).

¶ 61 But in the context of a deferred judgment and sentence, the

phrase “was convicted” is not clear. Does it mean that the

defendant was once convicted, as the County urges, or that he was

28
convicted even after he successfully completed the deferred

sentence?

¶ 62 McCulley, Perry, and Hafelfinger show that appellate courts

have recognized that the term “convicted” is fluid in the context of a

deferred judgment and sentence. This fluidity can be addressed by

including specific language that clarifies the General Assembly’s

intent whether it is using the term “convicted” to encompass a

deferred judgment and sentence. And, as discussed in Part III.F,

.G, and .H, supra, the General Assembly did not include such a

definition in section 13-21-131(4)(a) or elsewhere in ELEIA. To the

contrary, in ELEIA it used broad language — in addition to the term

“convicted” — when it intended to encompass all sentences

resulting from a guilty plea. See § 24-31-904(1)(a)(I).

¶ 63 Moreover, even if it does not provide a separate stand-alone

provision addressing the intended scope of the term “convicted,” the

General Assembly has demonstrated its ability to use broad

language that accounts for the temporal fluidity of the term

“convicted” in the context of a deferred judgment and sentence.

See, e.g., People v. Allaire, 843 P.2d 38, 41 (Colo. App. 1992)

(construing the phrase “previously convicted” as used in a prior

29
version of the statute defining the offense of possession of a weapon

by a previous offender to include a deferred judgment and sentence,

regardless of whether the sentence was successfully completed); cf.

Hafelfinger, 674 P.2d at 377, n.3 (construing the phrase “has a

record of conviction” to include having entered into a plea to a

deferred judgment and sentence but not a successfully completed

deferred judgment and sentence). The General Assembly did not

include such language in section 13-21-131(4)(a).

¶ 64 Heeding the supreme court’s reasoning in McCulley, we also

note that the County’s urged interpretation would lead to an absurd

result. Consider a defendant who was convicted of a crime after a

trial. If the defendant appealed their conviction, and the conviction

was overturned on appeal, the County’s interpretation of section

13-21-131(4)(a) would mean that the defendant “was convicted”

regardless of the subsequent reversal of that conviction after a

successful appeal. See McCulley, ¶ 31 (“[I]f the phrase ‘has [a]

conviction’ for purposes of []section [16-22-113](3)(c) includes

‘having received a verdict of guilty by a judge or jury’ regardless of

the ultimate disposition of the case, then even a person whose

30
guilty verdict is overturned on appeal for insufficient evidence still

‘has [a] conviction’ for purposes of the bar in subsection (3)(c).”).

¶ 65 Similarly, the County’s interpretation of “was convicted” would

require us to conclude that Lucero was convicted of a crime even

though his guilty plea was withdrawn, no judgment of conviction

was ever entered, and all charges were dismissed. This absurd

outcome can be avoided by recognizing that the status of a deferred

judgment and sentence is fluid until such time as the sentence is

successfully completed or revoked. See Tucker, 211 P.3d at 711

(“We avoid statutory interpretations leading to absurd or illogical

results.”).

J. Legislative Intent Arguments

¶ 66 Because the meaning of “was convicted” under section 13-21-

131(4)(a) is ambiguous, the County also urges us to consider a

statement made during a discussion of the bill that added the last

sentence of section 13-21-131(4)(a). Rebecca Wallace, an attorney

involved in drafting the legislation, made the statement in response

to a question from Representative Adriene Benavidez:

Rep. Adrienne Benavidez: . . . You know often
times . . . when there’s not indemnification
there may be no remedy for . . . the victim in

31
the case unless there’s a showing against the
agency with regard to . . . lack of training or
supervision so how does this amendment
impact that if somebody was held criminally
liable?

Chair: Ms. Wallace.

Rebecca Wallace: Thank you, Madam Chair.
Thank you, Representative Benavidez. . . . It’s
a very good question that you have. I think
what this amendment does is it recreates the
reality that we live in right now, despite the
fact that it will leave some victims . . . without
justice. And just so . . . right now, when you
bring a civil rights case under federal law here
in Colorado, 99% of the time the government
entity will indemnify. It does not matter if the
actions are willful and wanton. It does not
matter if you are shooting somebody in the
back who is laying down on the ground. They
will indemnify. I know from personal
experience, and I also know from . . . the
enormous group of civil right lawyers that I
worked with in developing some of the . . .
thoughts behind this provision. And so, the
indemnification provision that exists right now
in the law really is just codifying what’s
already happening but it’s hopefully to give
some sense of peace to the peace officers.
That’s the goal of it. But the one time that we
see almost all the time non-indemnification is
when the individual, the peace officer, is
convicted of a criminal offense. . . . I don’t like
this amendment, but I understand . . . that
there’s been a goal to sort of recreate what’s
available in federal law, excluding qualified
immunity here in state law, and not to
increase the liability and so this was a

32
compromise amendment but it will leave
victims whose . . . when the peace officer has
committed a criminal violation, it will leave
them without justice.

Hearings on S.B. 20-217 before the H. Fin. Comm., 72d Gen.

Assemb., 2d Reg. Sess. (June 10, 2020).

¶ 67 The County argues that Wallace’s statement indicates that the

General Assembly understood that, if the third sentence of section

13-21-131(4)(a) was included, a victim might sometimes be left

without complete justice. From this broad statement, the County

argues that the General Assembly intended to include a deferred

judgment and sentence within the purview of “was convicted.” We

conclude this is a leap too far.

¶ 68 While we may consider the legislative history in interpreting an

ambiguous statute, § 2-4-203(1)(c); Nieto, ¶ 13 (“[W]here a statute is

ambiguous — that is, reasonably susceptible to more than one

interpretation — we turn to other interpretive aids to discern the

legislature’s intent.”), we must be careful in doing so, particularly

when the cited statement was made by a non-legislator, Epic Sys.

Corp. v. Lewis, 584 U.S. 497, 523 (2018) (noting that “legislative

history is not the law” and citing various authorities cautioning

33
against the overly broad use of legislative history, particularly

comments based on different questions than those before the

court).

¶ 69 Even if we were to assume that the statement of a non-

legislator at a committee meeting could be reasonably interpreted as

a reflection of the General Assembly’s intent, Wallace’s statement is

completely silent on the issue of whether the phrase “was convicted”

is intended to apply to a successfully completed deferred judgment

and sentence. At most, the statement reflects an effort to eliminate

the employing agency’s responsibility to indemnify a peace officer if

the officer was convicted of a criminal offense. But that conclusion

is already clear from the language of the third sentence, a

proposition that neither party disputes.5

¶ 70 Interestingly, Wallace’s statement refers to federal civil rights

claims as an analog to support the conclusion that, under existing

federal law, an employing agency will not indemnify a peace officer

5 As previously noted, the parties dispute whether the third

sentence relieves the employing agency from any obligation to
satisfy the uncollectible portion of the judgment when the peace
officer was convicted of a criminal offense for the underlying
conduct. But given our disposition, we do not address that issue.

34
convicted of a crime. Neither party addresses whether the phrase

“was convicted” encompasses a successfully deferred judgment and

sentence under federal civil rights law. But the United States

Court of Appeals for the Tenth Circuit has addressed the scope of

the term “conviction” in the context of a claim under 42 U.S.C.

§ 1983. Lessard v. Cravitz, 686 F. App’x 581 (10th Cir. 2017).

¶ 71 Lessard brought a claim alleging that his federal constitutional

rights were violated when he was charged with and convicted of

stalking. Id. at 585. The conviction was entered after Lessard

pleaded guilty and received a deferred judgment and sentence; he

then successfully completed the deferred judgment and sentence,

resulting in the withdrawal of his guilty plea and dismissal of the

stalking charge. Id. at 584.

¶ 72 To prevail on a claim for malicious prosecution under § 1983,

a defendant generally must demonstrate that the criminal action

terminated in his favor. Id. at 586. But a convicted defendant may

still bring a § 1983 claim provided their conviction falls within

certain exceptions recognized in Heck v. Humphrey, 512 U.S 477,

487 (1994) (A defendant must prove “that the conviction or sentence

has been reversed on direct appeal, expunged by executive order,

35
declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance

of a writ of habeas corpus.”).

¶ 73 Because Lessard successfully completed his deferred judgment

and sentence, the Tenth Circuit, applying Colorado law, concluded

that he had no conviction for stalking and therefore did not need to

satisfy the Heck exceptions:

Having completed a deferred judgment and
sentence under Colorado’s deferred-judgment
statute, which resulted in the withdrawal of
his plea and the dismissal of the criminal
charge against him, Mr. Lessard has no
existing “conviction” that could be affected by
his malicious-prosecution claim. His claims
are thus not subject to the Heck bar. Cf.
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1095
(10th Cir. 2009) (holding Heck did not bar §
1983 claim claiming plaintiff’s signature had
been forged on agreement resulting in deferred
prosecution, because under Kansas law, there
was no related underlying conviction that
could be invalidated by [a] § 1983 [suit]).

Lessard, 686 F. App’x at 587.

¶ 74 Thus, to the extent that Wallace’s statement suggests that

federal civil rights law is germane to our interpretation of “was

convicted” under section 13-21-131(4)(a), the Lessard decision

suggests that Lucero was not convicted.

36
K. Policy Arguments

¶ 75 The County posits various public policy arguments urging us

to adopt its contention that the phrase “was convicted” should be

deemed to include a deferred judgment and sentence. Specifically,

the County argues that the interpretation Hudnall and Palmas

urges would lead to absurd and unworkable results, favors a

private interest over a public interest, and creates unmanageable

liability for public entities. We address the first of these arguments

but decline to address the second and third because they present

policy arguments and line-drawing that are the General Assembly’s

province. See Klabon v. Travelers Prop. Cas. Co. of Am., 2024 CO

66, ¶ 40.

¶ 76 The County argues the interpretation of section 13-21-

131(4)(a) urged by Hudnall and Palmas would be unworkable

because the parties would not know if the peace officer was

convicted until completion of the deferred judgment and sentence.

The period of deferral may continue for up to two years on a

misdemeanor and four years on a felony. § 18-1.3-102(1)(a). This

delay, the County argues, would be too difficult to administer. We

are not persuaded.

37
¶ 77 As Hudnall and Palmas point out, when a criminal conviction

enters after a trial the defendant generally has the right to appeal

that conviction. The trial process alone frequently takes a year or

two to complete. And the criminal appellate process frequently

takes multiple years. Thus, a deferred judgment and sentence is

often completed in a shorter time than a criminal case that

proceeds to a trial and appeal. This case is illustrative. Lucero’s

deferred judgment and sentence was terminated, his plea

withdrawn, and the charges dismissed within a year of his guilty

plea.

¶ 78 Given these practical realities, we do not see how the

interpretation of “conviction” urged by Hudnall and Palmas is any

less workable than the County’s proposed interpretation.

¶ 79 Although not mentioned in its answer to the cross-appeal, in

its opening brief the County asserts that holding it liable under any

portion of section 13-21-131(4)(a) would deprive it of due process by

denying it an opportunity to challenge the merits of a plaintiff’s

claims until after a judgment was entered. While acknowledging

that it did not assert any constitutional arguments below, the

County argues that section 13-21-131(4)(a) violates its

38
constitutional rights to procedural and substantive due process. To

the extent that the County is attempting to assert that section 13-

21-131(4)(a) is unconstitutional on its face or as applied, we decline

to address the assertion. O’Quinn, 250 P.3d at 630.

¶ 80 While the constitutional arguments are unpreserved, the

County did argue in the district court that it was unfair and

unreasonable to hold it liable because it had not been joined as a

party to the lawsuit until after the judgments were entered against

Lucero. True, the County was not joined as a party until after the

judgments were entered. But it does not follow that the County had

no opportunity to participate in these cases before the entry of

those judgments.

¶ 81 As previously explained, the County had full knowledge of its

potential liability before these suits were filed yet chose not to

appear in the action. In short, the County’s contention that it was

caught off guard about its potential liability or denied the

opportunity to contest Hudnall’s and Palmas’s claims is unfounded.

¶ 82 Moreover, although the County’s liability remained contingent

pending the outcome of the district court proceedings, nothing

prevented it from petitioning to join the case as an interested party,

39
see C.R.C.P. 20 (addressing permissive joinder). Similarly, the

County could have tendered an indemnification defense on behalf of

Lucero while reserving its rights concerning any obligation to

indemnify Lucero for any portion of the judgment entered against

him. A similar process is followed in myriads of cases involving an

insurance company tendering a defense for a defendant while

reserving the right to dispute its liability for any judgment that may

enter. See, e.g., Shelter Mut. Ins. Co. v. Vaughn, 2013 COA 25, ¶ 7

(“If an insurer believes that it has no obligation to indemnify — for

example, if it believes the insured’s actions were intentional and

outside policy coverage — it can defend its insured under a

reservation of rights,” which “permits the insurer to fulfill its duty to

defend, while also allowing it to dispute its duty to indemnify in a

later declaratory action, if a court finds the insured liable.”).

¶ 83 Instead of pursuing these available opportunities, the County

elected not to participate until after judgments had been entered

against Lucero. Having elected that course of action, the County

cannot now complain that it had no opportunity to participate or

protect its interest in the underlying cases.

40
¶ 84 Next, the County points to a decision by a division of this

court to support its contention that the County’s obligation is

limited to indemnification of Lucero, and therefore Hudnall and

Palmas had no ability to make a direct claim against the County.

See Ditirro v. Sando, 2022 COA 94. That reliance is misplaced.

¶ 85 In interpreting “the indemnification language in section 13-21-

131(4)(a),” the division in Ditirro noted that the County’s

indemnification obligation imposed on a peace officer’s employers is

analogous to an insurance company’s indemnification obligation

under an insurance policy. Id. at ¶ 37. The division then reasoned,

While section 13-21-131(4) allows a peace
officer to obtain indemnification from the peace
officer’s employer under certain
circumstances, it only provides a remedy for
peace officers, at least before the peace officer
has incurred any liability, or any judgment or
settlement has been entered against the peace
officer, under the statute.

Id. at ¶ 38. After reaching that conclusion, the division stated: “We

offer no opinion on whether a plaintiff may bring an action against

the employer of a peace officer after the peace officer has incurred

liability under section 13-21-131(1) or after ‘any judgment or

41
settlement [is] entered against the peace officer’ for a claim arising

under the statute.” Id. (quoting § 13-21-131(4)(a)).

¶ 86 Thus, Ditirro does not support the County’s contention that a

party may not, under section 13-21-131(4)(a), pursue a peace

officer’s employer for the uncollectible portion of a judgment entered

against a peace officer who was not convicted of a crime.

¶ 87 For these reasons, we perceive no absurdity or other

unreasonable outcome resulting from the conclusion that the

phrase “was convicted” in section 13-21-131(4)(a) does not extend

to a successfully completed deferred judgment and sentence.

¶ 88 We decline to address the County’s remaining policy

arguments because they present policy decisions and the balancing

of competing interests that are the prerogative of the General

Assembly rather than the courts. See Klabon, ¶ 40; Ruybalid v. Bd.

of Cnty. Comm’rs, 2017 COA 113, ¶ 18 (“Whatever the merits of

these competing arguments, matters of public policy are better

addressed by the General Assembly, not us.”), aff’d on other

grounds, 2019 CO 49.

42
IV. Summary

¶ 89 It is important to reiterate that this decision resolves the

question of whether a successfully completed deferred judgment

and sentence constitutes a conviction under section 13-21-131(4).

Because we conclude that it does not, we need not, and do not,

resolve the parties’ differing interpretations regarding the scope of a

public entity’s obligation to satisfy a judgment under section 13-21-

131(4)(a) when a peace officer is convicted of a criminal violation for

the conduct that gave rise to the judgment.

V. Disposition

¶ 90 The judgment is affirmed — albeit on alternative grounds than

those relied on by the district court.

JUDGE FOX and JUDGE HARRIS concur.

43