People v. Al-Turki

COLORADO COURT OF APPEALS 2017COA39

Court of Appeals No. 14CA0245
Arapahoe County District Court No. 05CR1571
Honorable J. Mark Hannen, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Homaidan Al-Turki,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HAWTHORNE
Román, J., concurs
Harris, J., dissents

Announced April 6, 2017

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Davis Graham & Stubbs, LLP, Michael J. Gallagher, Chad D. Williams, Kyle W.
Brenton, Denver, Colorado, for Defendant-Appellant
¶1 This case presents only one question: Is a defendant who is

subject to section 18-1.3-406(1)(b), C.R.S. 2016, because he or she

committed a crime of violence and a sex offense under the Colorado

Sex Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001

to -1012, C.R.S. 2016, eligible to have his or her sentence to the

custody of the Department of Corrections for an indeterminate term

of incarceration modified to probation under section 18-1.3-

406(1)(a)? Based on our supreme court’s opinion in Chavez v.

People, 2015 CO 62, we conclude that the answer to this question is

no. So, we affirm the district court’s order denying defendant

Homaidan Al-Turki’s motion to reduce his sentence under Crim. P.

35(b).

I. Procedural History

¶2 As relevant here, Al-Turki was convicted under the LSA of

twelve counts of unlawful sexual contact through use of force,

intimidation, or threat, a class 4 felony as defined by section 18-3-

404(2)(b), C.R.S. 2016. The district court ultimately sentenced him

to indeterminate prison terms of six years to life on the unlawful

sexual contact convictions. The prosecution appealed this sentence

1
and a division of this court affirmed. See People v. Al-Turki, (Colo.

App. No. 11CA1247, Aug. 9, 2012) (not published pursuant to

C.A.R. 35(f)). Al-Turki renewed his previously filed Rule 35(b)

motion for reduction of sentence, arguing that he was eligible for a

probationary sentence under section 18-1.3-406(1)(a). After a

three-day evidentiary hearing, the district court denied the motion,

concluding that it did not have authority to modify Al-Turki’s

sentence because he was not eligible for probation under section

18-1.3-406(1)(a).

II. Sentence Modification

¶3 Al-Turki contends that he is eligible to have his indeterminate

term of incarceration sentence, which was imposed under the LSA

and the crime-of-violence statute, section 18-1.3-406(1)(b), modified

to probation under section 18-1.3-406(1)(a). We disagree.

¶4 We review statutory interpretation questions de novo. People

v. Bohn, 2015 COA 178, ¶ 9.

¶5 The mandatory sentencing for violent crimes statute, section

18-1.3-406(1), differentiates between crimes of violence that involve

sex offenses and those that do not involve sex offenses. Section 18-

1.3-406(1)(a) governs crimes of violence generally (i.e. non-sex

2
offenses), and allows the court to modify a sentence for a term of

incarceration to probation in limited circumstances. § 18-1.3-

406(1)(a) (“[T]he court, in a case which it considers to be exceptional

and to involve unusual and extenuating circumstances, may

thereupon modify the sentence . . . [and] [s]uch modification may

include probation if the person is otherwise eligible therefor.”).

¶6 Section 18-1.3-406(1)(b) governs crimes of violence involving

sex offenses and contains no similar “modification” language. And,

it provides that defendants convicted of a sex offense that is a crime

of violence shall be sentenced to an indeterminate term of

incarceration. Id. (“Notwithstanding the provisions of paragraph (a)

of this subsection (1), any person convicted of a sex offense, as

defined in section 18-1.3-1003(5), committed on or after November

1, 1998, that constitutes a crime of violence shall be sentenced to

the department of corrections for an indeterminate term of

incarceration . . . .”).

¶7 Al-Turki argues that his indeterminate term of incarceration

sentence is governed by both section 18-1.3-406(1)(a) and (1)(b). He

reads section 18-1.3-406(1)(a) as governing all crimes of violence,

even those that are sex offenses. To do so, he interprets the phrase

3
in the first sentence of section 18-1.3-406(1)(b), “[n]otwithstanding

the provisions of paragraph [(1)](a),” as meaning subsection (1)(b) is

a limited exception to subsection (1)(a). He therefore reads section

18-1.3-406(1)(b) to only modify subsection (1)(a) where the two

sections conflict, namely, as to the directive in subsection (1)(a) that

the sentencing court impose a determinant aggravated sentence.

¶8 But, our supreme court, in Chavez, interpreted section 18-1.3-

406(1)(b) and concluded that a crime-of-violence sex offender is not

eligible for probation.1 There, the defendant was convicted of a per

se crime of violence sex offense that required the sentencing court

to impose a sentence “in accordance with” the crime-of-violence

scheme. § 18-3-405.3(4), C.R.S. 2016. The defendant argued that

he was probation-eligible because he was subject to the LSA and it

allowed for probation. See § 18-1.3-1004(2), C.R.S. 2016.

¶9 The supreme court held that the defendant was not

probation-eligible because, even though he was subject to the LSA,

which allows for probation, he was also subject to the mandatory

1 In its opinion, the court quotes the “relevant part” of section 18-
1.3-406(1)(b), C.R.S. 2016, without including the “notwithstanding”
clause, and otherwise does not mention it. Chavez v. People, 2015
CO 62, ¶ 13.

4
crime-of-violence enhancement, and “[t]his forecloses probation.”

Chavez, ¶ 19. The court explained that the LSA required the

defendant to serve an indeterminate sentence, the crime-of-violence

statute required that he serve it in prison, and the LSA did not

change that. Id. The court also explained that because the

defendant “committed a crime of violence and a sex offense, [the

defendant] is subject to section 406(1)(b), not the general, non-sex-

offense section of 406(1)(a).” Id. at ¶ 20. It emphasized that section

18-1.3-406(1)(b) requires that defendants convicted of violent sexual

offenses “shall be sentenced to the department of corrections for an

indeterminate term of incarceration.” Id. Thus, the defendant

“[could] not be eligible for probation because ‘incarceration’ means

‘imprisonment, confinement in a jail or penitentiary,’ . . . and

‘“shall” indicates that [a] term is mandatory.’” Id. (citations

omitted).

¶ 10 Like the defendant in Chavez, Al-Turki was convicted of a per

se crime of violence sex offense that required the sentencing court

to impose a sentence “in accordance with” the crime-of-violence

scheme. § 18-3-405.3(4). He is subject to the LSA because he

stands convicted of a sex offense committed after November 1,

5
1998. See §§ 18-1.3-1003(4), -1003(5)(a)(III)(A), -1012, C.R.S. 2016.

And, because he committed a crime of violence and a sex offense,

he is subject to section 18-1.3-406(1)(b), not the general, non-sex-

offense section of 18-1.3-406(1)(a). Chavez, ¶ 20.

¶ 11 Because these circumstances are the same as the defendant’s

in Chavez, Al-Turki is foreclosed from probation and the provisions

in section 18-1.3-406(1)(a) allowing the court to modify a

determinate term of incarceration to probation are not available to

him. See id. at ¶ 21 (concluding that, as to LSA sex offender

defendant, “the crime-of-violence enhancement makes [defendant]

ineligible for probation”).

¶ 12 We recognize that Al-Turki’s request to modify his original

indeterminate term of incarceration to probation is different from

the defendant’s request in Chavez that he be sentenced initially to

probation rather than an indeterminate term of incarceration.

Nonetheless, our conclusion that Chavez mandates that Al-Turki is

ineligible for probation is unaltered by this difference. The supreme

court’s sweeping and unqualified language in Chavez answers

negatively the question whether a crime-of-violence sex offender’s

6
mandatory sentence to an indeterminate term of incarceration can

later be modified to probation.2 Id.

¶ 13 The district court did not err in concluding that section 18-

1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to

probation.

III. Conclusion

¶ 14 The district court’s order is affirmed.

JUDGE ROMÁN concurs.

JUDGE HARRIS dissents.

2 Despite the dissent’s detailed and eloquent reasoning, we are
“bound to follow supreme court precedent.” In re Estate of
Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney 250 P.3d
762, 768 n.3 (Colo. App. 2010)).

7
JUDGE HARRIS, dissenting.

¶ 15 Defendant Homaidan Al-Turki raised two distinct claims on

appeal. First, he contended that his convictions for unlawful sexual

contact were not crimes of violence under the Colorado Sex

Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001

to -1012, C.R.S. 2016, and, therefore, he was eligible for an initial

sentence to probation under the LSA, see § 18-1.3-1004(2)(a),

C.R.S. 2016. Second, and in the alternative, he contended that,

even if his convictions were per se crimes of violence that subjected

him to sentencing under the crime of violence statute, section 18-

1.3-406, C.R.S. 2016, the district court could modify his sentence

of imprisonment to a probationary sentence. This was true, he

argued, because the LSA did not change crime of violence

sentencing for sex offenders other than to mandate indeterminate

sentencing. Modification to probation was authorized for violent sex

offenders prior to enactment of the LSA and, therefore, the

modification continued to be authorized post-LSA.

¶ 16 During the pendency of the appeal, our supreme court issued

its opinion in Chavez v. People, 2015 CO 62. Chavez forecloses

Al-Turki’s first argument, but it does not address the second. The

8
majority opinion carefully and persuasively explains why Al-Turki

was not eligible for an initial sentence to probation under section

18-1.3-1004(2) or section 18-1.3-406. But it then assumes,

without additional argument or evidence, that the same reasoning

supports the entirely separate conclusion that section 18-1.3-406

does not authorize a subsequent modification of Al-Turki’s sentence

below the aggravated range. My examination of the language,

history, and purpose of the statutes, as well as the relevant case

law, leads me to the conclusion that the district court had the

authority to modify Al-Turki’s sentence, including a modification to

probation. Therefore, I must respectfully dissent.

I. Legal Background

¶ 17 An offense can qualify as a “crime of violence” in one of two

ways. Under section 18-1.3-406, a crime of violence is defined as

any of the enumerated offenses during the commission of which the

defendant used, or possessed and threatened the use of, a deadly

weapon or caused serious bodily injury or death to a

nonparticipant. § 18-1.3-406(2)(a). These crimes are sometimes

referred to as “defined” crimes of violence. See Chavez, ¶ 12. In

addition, some offenses (which may not necessarily meet the

9
statutory definition of a crime of violence) have been designated by

the legislature as crimes of violence for sentencing purposes. The

statutes defining these offenses direct the court to sentence the

defendant “in accordance with the provisions of section 18-1.3-

406.” These crimes are referred to as “per se” crimes of violence.

People v. Banks, 9 P.3d 1125, 1130 (Colo. 2000).

¶ 18 As the majority notes, Al-Turki was convicted of, among other

offenses, twelve counts of unlawful sexual contact by force, in

violation of section 18-3-404(2)(b), C.R.S. 2016. Unlawful sexual

contact is ordinarily a class 1 misdemeanor, but when committed

by the use of force, it is a class 4 felony sex offense and a “per se”

crime of violence subject to aggravated sentencing under the crime

of violence statute.

¶ 19 Prior to the enactment of the LSA in 1998, all crimes of

violence (including sex offenses) were subject to enhanced

sentencing under section 16-11-309(1)(a), the predecessor to

section 18-1.3-406(1)(a). See Ch. 318, sec. 1, § 18-1.3-406, 2002

Colo. Sess. Laws 1403. Under this provision, the court was

required to sentence any violent offender to a term of imprisonment

of at least the midpoint in, but no more than twice the maximum of,

10
the presumptive sentencing range for the offense of conviction.

§ 16-11-309(1)(a), C.R.S. 1985. The same provision, however,

authorized the trial court to modify any crime of violence sentence,

even to the point of probation, upon a finding of unusual and

extenuating circumstances. Id. Thus, while no violent offender was

initially eligible for a probationary sentence under the statute, every

violent offender who met the exceptional circumstances criteria was

eligible for a subsequent modification of his sentence to a term

below the aggravated range. See People v. Beyer, 793 P.2d 644, 646

(Colo. App. 1990) (the initial sentence for a crime of violence must

be in the aggravated range but may be modified to a sentence of

probation), overruled on other grounds by Robles v. People, 811 P.2d

804 (Colo. 1991).

¶ 20 The LSA was enacted with the goal of providing sex offenders

with lifetime treatment and supervision. § 18-1.3-1001, C.R.S.

2016. To that end, the LSA requires that any defendant convicted

of a sex offense be sentenced to an indeterminate term of

imprisonment of at least the minimum of the presumptive range

specified for that offense and a maximum of the sex offender’s life,

11
see § 18-1.3-1004(1)(a), though some sex offenders are initially

eligible for probation, see § 18-1.3-1004(2)(a).

¶ 21 The LSA includes its own provision for sex offenses that are

defined crimes of violence. See § 18-1.3-1004(1)(b). But it does not

separately address sentencing for sex offenses that are per se

crimes of violence. Instead, the statutes defining those offenses

continue to direct trial courts to sentence the defendant “in

accordance with” the crime of violence statute. The crime of

violence statute, however, did not provide for indeterminate

sentencing, so in 1998, when the legislature enacted the LSA, it

also amended the crime of violence statute to include a new section

that directed the trial court to impose an aggravated indeterminate

sentence for violent sex offenses. See Ch. 303, sec. 9, § 16-11-309,

1998 Colo. Sess. Laws 1291 (codified as amended at section 18-1.3-

406(1)(b)).

¶ 22 In its current iteration, the crime of violence statute now

provides, in relevant part:

(1)(a) Any person convicted of a crime of
violence shall be sentenced . . . to the
department of corrections for a term of
incarceration of at least the midpoint in, but
not more than twice the maximum of, the

12
presumptive range provided for such offense
. . . without suspension; except that, within
ninety-one days after he or she has been
placed in the custody of the department of
corrections, the department shall transmit to
the sentencing court a report on the evaluation
and diagnosis of the violent offender, and the
court, in a case which it considers to be
exceptional and to involve unusual and
extenuating circumstances, may thereupon
modify the sentence, effective not earlier than
one hundred nineteen days after his or her
placement in the custody of the department.
Such modification may include probation if the
person is otherwise eligible therefor1. . . .

(b) Notwithstanding the provisions of
paragraph (a) of this subsection (1), any person
convicted of a sex offense, as defined in section
18-1.3-1003(5), committed on or after
November 1, 1998, that constitutes a crime of
violence shall be sentenced to the department
of corrections for an indeterminate term of
incarceration of at least the midpoint in the
presumptive range specified in section 18-1.3-
401(1)(a)(V)(A) up to a maximum of the
person’s natural life, as provided in section 18-
1.3-1004(1).

§ 18-1.3-406(1)(a)-(b).

1A person is “eligible” for probation unless he has been convicted of
a class 1 felony or a class 2 petty offense, § 18-1.3-201, C.R.S.
2016, or unless otherwise specifically precluded. See, e.g., § 18-
1.3-401(8)(d)(II), C.R.S. 2016 (“In no case shall any defendant”
convicted of a class 2 or class 3 felony of child abuse “be eligible for
suspension of sentence or for probation or deferred prosecution.”).

13
¶ 23 Thus, the crime of violence statute now differentiates between

violent sex offenses and non-sex-related violent offenses. Hunsaker

v. People, 2015 CO 46, ¶ 24.

II. Chavez Does Not Control the Outcome of This Case

¶ 24 Like Al-Turki, the defendant in Chavez, ¶ 16, was convicted of

a sex offense that constituted a per se crime of violence. Under the

LSA, a defendant is subject to crime of violence sentencing, and

ineligible for an initial sentence of probation, only when he has been

convicted of a defined crime of violence. § 18-1.3-1004(1)(b), (2)(a).

Thus, Chavez argued — as Al-Turki did — that he was not subject

to section 18-1.3-406 and, instead, the district court could have

initially sentenced him to probation under section 18-1.3-1004(2).

Chavez, ¶¶ 17, 19.

¶ 25 The supreme court rejected that argument, explaining that

Chavez was subject to the crime of violence enhancement, not

under section 18-1.3-1004(1)(b) of the LSA, but under the statute

defining his offense, which mandated that he be sentenced “in

accordance” with section 18-1.3-406. Id. at ¶ 16. And, like all

violent offenders, violent sex offenders are not initially eligible for

probation under section 18-1.3-406. Id. at ¶¶ 19-20. The supreme

14
court did not address whether the defendant’s sentence could be

subsequently modified to probation.

¶ 26 Still, the majority highlights two passages from Chavez that it

says resolve the question. First, in responding to Chavez’s

argument that he was eligible for probation under the LSA, the

court stated:

Chavez, however, is not probation-eligible
because he is also subject to the mandatory
crime-of-violence enhancement. This
forecloses probation. Put differently, the LSA
requires that Chavez serve an indeterminate
sentence. The crime-of-violence enhancement
requires that he serve it in prison, and the LSA
did not alter that.

Id. at ¶ 19 (citation omitted).

¶ 27 If probation was “foreclosed” for Chavez, the majority reasons,

it must be “foreclosed” for Al-Turki, who was also convicted of a per

se violent sex offense. But the cited language means only that, as a

long-established matter, violent offenders — whether sex offenders

or non-sex offenders — are precluded under section 18-1.3-406

from receiving an initial sentence to probation. As noted, prior to

the LSA’s adoption, the crime of violence statute required that “[a]ny

person convicted of a crime of violence shall be sentenced . . . to a

15
term of incarceration . . . without suspension,” but authorized a

subsequent sentence modification to probation. § 16-11-309(1)(a),

C.R.S. 1985.

¶ 28 The court’s pronouncement that the mandatory crime of

violence statute “forecloses probation” cannot signal some new,

post-LSA rule prohibiting a modification to probation of a sex

offender’s sentence. If it did, the court would not have declared

that “the LSA did not alter” the pre-LSA crime of violence

sentencing rules.

¶ 29 Second, the majority points to the Chavez court’s distinction

between section 18-1.3-406(1)(a) and (1)(b), and its emphasis on

incarceration as the required punishment:

Because Chavez committed a crime of violence
and a sex offense, he is subject to section
406(1)(b), not the general, non-sex-offense
section of 406(1)(a). Section 406(1)(b) says
defendants convicted of violent sexual offenses
“shall be sentenced to the department of
corrections for an indeterminate term of
incarceration . . . .” Chavez cannot be eligible
for probation because “incarceration” means
“imprisonment, confinement in a jail or
penitentiary,” . . . and “‘shall’ indicates that a
term is mandatory[.]”

Id. at ¶ 20 (citations omitted).

16
¶ 30 But here, too, the court is merely reciting the general rule that

a violent sex offender, like any violent offender, is not eligible for an

initial sentence to probation. True, section 18-1.3-406(1)(b)

requires that defendants convicted of violent sex offenses be

sentenced to a term of incarceration, but so does section 18-1.3-

406(1)(a), and it is undisputed that sentences imposed under

section 18-1.3-406(1)(a) may be modified, including a modification

to probation. Thus, the distinction between section 18-1.3-406(1)(a)

and (1)(b) could not have been determinative of the issue of

probation eligibility.

¶ 31 Instead, in my view, the court distinguished between sections

18-1.3-406(1)(a) and (1)(b) to underscore that the legislature’s

addition of section 18-1.3-406(1)(b) in response to the enactment of

the LSA did not alter the general rule that violent offenders are not

initially eligible for probation. Beyer, 793 P.2d at 646. That is why

the distinction is preceded by the language discussed above: “[T]he

LSA requires that Chavez serve an indeterminate sentence. The

crime-of-violence enhancement requires that he serve it in prison,

and the LSA did not alter that.” Chavez, ¶ 19 (citation omitted).

17
¶ 32 Thus, I agree with the majority that Chavez decided the

following:

(1) A defendant, like Al-Turki, who is convicted of a per

se crime of violence is subject to the mandatory

crime-of-violence enhancement in section 18-1.3-

406(1)(b).

(2) Section 18-1.3-406(1)(b) applies to violent sex

offenders and mandates an enhanced indeterminate

sentence.

(3) Section 18-1.3-406(1)(b) forecloses an initial

sentence to probation because (like section 18-1.3-

406(1)(a)) it requires that the defendant be

sentenced to the custody of the department of

corrections for a term of incarceration.

¶ 33 But Chavez does not address, much less answer, the other

question presented on appeal: even if Al-Turki was initially ineligible

for probation under section 18-1.3-406(1)(b), did the district court

have authority to modify his sentence under section 18-1.3-

406(1)(a)?

III. The District Court Had Authority to Modify Al-Turki’s Sentence

18
¶ 34 To answer that question, I must examine section 18-1.3-406

and certain provisions of the LSA, and the interplay between those

statutes. The goal of statutory interpretation is to discover and give

effect to the legislative intent. Vensor v. People, 151 P.3d 1274,

1275 (Colo. 2007). If statutory language is clear, we apply its plain

and ordinary meaning, but if the statute is ambiguous — meaning

that it is reasonably susceptible to multiple interpretations — we

determine the proper construction by examining the legislative

intent, the circumstances surrounding its adoption, and the

possible consequences of various constructions. Hunsaker, ¶ 11.

¶ 35 The district court deemed section 18-1.3-406(1)(b)

unambiguous. Adopting the People’s primary argument in

opposition to Al-Turki’s motion, the district court read section 18-

1.3-406(1)(b)’s introductory phrase, “notwithstanding the provisions

of paragraph (a) of this subsection (1),” to mean that no part of

section 18-1.3-406(1)(a) applied to violent sex offenders sentenced

under section 18-1.3-406(1)(b) and therefore a modification of the

sentence to probation was impermissible.

¶ 36 But I read the term “notwithstanding” to mean that section

18-1.3-406(1)(b) overrides conflicting provisions of section 18-1.3-

19
406(1)(a). This appears to be the favored interpretation of a

“notwithstanding” clause. See, e.g., Drakes Bay Oyster Co. v.

Jewell, 747 F.3d 1073, 1083 (9th Cir. 2013) (“As a general matter,

‘notwithstanding’ clauses nullify conflicting provisions of law.”);

Arias v. Superior Court, 209 P.3d 923, 931 (Cal. 2009)

(“notwithstanding” clause is “a ‘term of art’ . . . that declares the

legislative intent to override all contrary law”; it does not render

nonconflicting provisions inapplicable) (citation omitted); Missouri

ex rel. Mo. Pub. Serv. Comm’n v. Joyce, 258 S.W.3d 58, 62 (Mo.

2008) (“notwithstanding” clause has the effect of “preventing a

conflict from arising between two statutory sections”); see also

Zamarripa v. Q & T Foods Stores, Inc., 929 P.2d 1332, 1339 n.9

(Colo. 1997) (“notwithstanding” means “without prevention or

obstruction from or by”) (citation omitted). Thus, I construe the

“notwithstanding” clause in section 18-1.3-406(1)(b) to override only

the inconsistent part of section 18-1.3-406(1)(a) — the directive that

trial courts impose a determinative aggravated sentence.2

2 According to the People, even if the “notwithstanding” clause is
interpreted to invalidate only conflicting provisions of section 18-
1.3-406(1)(a), C.R.S. 2016, the result is the same “because

20
¶ 37 The People counter that if the “notwithstanding” clause were

intended to carve out an exception to the statute limited to

indeterminate sentencing for sex offenders, section 18-1.3-406(1)(b)

would read: “Any person convicted of a sex offense . . . that

constitutes a crime of violence shall be sentenced to the department

of corrections . . . or to probation for an indeterminate term.” But

that alternative language would not implement a limited carve-out

for indeterminate sentencing; instead, it would permit an initial

sentence to probation for a violent offender, something prohibited

under both (1)(a) and (1)(b) of section 18-1.3-406. So, the People’s

argument does not persuade me that I have misconstrued the

“notwithstanding” clause.

¶ 38 Still, even assuming that my interpretation of the clause is not

definitive, it is at least reasonable, and if one could sensibly credit

both my reading and the district court’s, then the statute is

ambiguous. See Gibson v. Parish, 360 F. App’x 974, 980 (10th Cir.

authorization of probation conflicts with mandatory prison sentence
with no exceptions.” But that argument just begs the question of
whether section 18-1.3-406(1)(a)’s exception to a mandatory prison
sentence applies to all violent offenders, including violent sex
offenders sentenced under section 18-1.3-406(1)(b).

21
2010) (“notwithstanding” clause was susceptible to more than one

reasonable interpretation, rendering the statute ambiguous).

¶ 39 Relying on rules of statutory construction, I conclude that the

pre-existing provisions of section 18-1.3-406(1)(a) that are not

inconsistent with section 18-1.3-406(1)(b) apply equally to sex

offenders sentenced under 18-1.3-406(1)(b).

¶ 40 First, as I noted earlier, section 18-1.3-406(1)(b) was added

only to accommodate the LSA’s new indeterminate sentencing

scheme: after adoption of the LSA, offenders who committed non-

sex-offense per se crimes of violence could continue to be sentenced

under section 18-1.3-406(1)(a), but offenders who committed violent

sex offenses had to be sentenced to aggravated indeterminate

sentences, necessitating the amendment to the crime of violence

statute. The supreme court, though, has made clear that the LSA

“was not intended to alter then-existing sentencing guidelines, other

than to allow for lifetime supervision,” Hunsaker, ¶ 24, particularly

when it comes to sentencing for per se violent sex offenses, see

Chavez, ¶ 21 (holding that sentencing for per se crimes of violence

continues to be governed by section 18-1.3-406 because a contrary

interpretation “would contravene the General Assembly’s intent to

22
preserve the mandatory sentencing scheme for per se crimes of

violence predating the LSA”). Thus, “[p]aragraph (1)(b) simply

dictates that violent sex crimes, unlike violent crimes generally, are

also subject to indeterminate life sentencing;” the inclusion of

section 18-1.3-406(1)(b) does not demonstrate an intent by the

General Assembly to otherwise change the sentencing scheme for

violent sex offenders. Hunsaker, ¶ 27.

¶ 41 Prior to the LSA, all violent offenders were eligible for

modification of their mandatory custodial sentences, including to

probation. And because the LSA’s “legislative declaration

demonstrates a clear intent not to increase the punishment of sex

offenders” with terms of incarceration “longer than those of other

felons of the same class,” Vensor, 151 P.3d at 1278, I conclude that

the legislature intended to permit modification of a sex offender’s

sentence on the same terms as any other violent offender, except

where specifically precluded.

¶ 42 Under the People’s interpretation, section 18-1.3-406(1)(b)

entirely disrupts the pre-existing process for sentence reductions.

Their argument is that no part of section 18-1.3-406(1)(a) applies to

offenders sentenced under 18-1.3-406(1)(b). That would mean that

23
offenders who committed per se violent sex offenses are not just

ineligible for a modification to probation; they are categorically

ineligible under Crim. P. 35(b) for any sentence reduction to a term

below the aggravated range.

¶ 43 Rule 35(b) allows the district court to reconsider, in the

interests of justice, the sentence previously imposed and, in its

sound discretion, resentence the defendant to a lesser term “within

the statutory limits.” People v. Smith, 189 Colo. 50, 52, 536 P.2d

820, 822 (1975); accord Beyer, 793 P.2d at 646. When a violent

offender seeks relief under Rule 35(b), the court’s authority to

resentence him outside the statutory limits — to a term below the

mandatory aggravated range — arises entirely from section 18-1.3-

406(1)(a). Beyer, 793 P.2d at 646.

¶ 44 Thus, under the People’s construction, the addition of

subsection (1)(b) to section 18-1.3-406 not only directed the

imposition of aggravated indeterminate sentencing for violent sex

offenders, it also eliminated any possibility under Rule 35(b) that a

court could resentence those offenders outside the statutory

aggravated range. But given that implementation of the LSA was

not intended to alter the existing sentencing rules, had the

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legislature nonetheless intended to institute a sweeping change to

the availability of sentence reductions for certain violent sex

offenders, I believe that it would have done so explicitly.

¶ 45 Indeed, as Al-Turki points out, when the legislature intends to

preclude an otherwise available sentence, including a sentence to

probation, it says so. See, e.g., § 18-1.3-401(8)(d)(II), C.R.S. 2016

(“In no case shall any defendant” convicted of a class 2 or class 3

felony of child abuse “be eligible for suspension of sentence or for

probation or deferred prosecution.”); § 18-1.3-804(4), C.R.S. 2016

(“In no case shall any [habitual burglar] . . . be eligible for

suspension of sentence or probation.”).

¶ 46 My conclusion that section 18-1.3-406(1)(b) was enacted for

the limited purpose of instituting indeterminate aggravated

sentencing for certain violent sex offenders is also supported by the

LSA’s sentencing scheme. As I have pointed out, the LSA includes

its own provision regarding sentencing for defined crimes of

violence, which tracks the mandatory sentencing language from

section 18-1.3-406(1)(a):

If the sex offender committed a sex offense that
constitutes a crime of violence, as defined in
section 18-1.3-406, the district court shall

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sentence the sex offender to the custody of the
department for an indeterminate term of at
least the midpoint in the presumptive range for
the level of offense committed and a maximum
of the sex offender’s natural life.

§ 18-1.3-1004(1)(b). In contrast, the LSA does not have a provision

that governs sentencing for per se crimes of violence. Even after

much of the criminal code was reorganized and renumbered in

2002, the statutes defining per se violent sex offenses referred the

trial court not to the LSA’s own crime of violence sentencing

provision, but to section 18-1.3-406. See Chavez, ¶ 18 (sentence of

sex offender convicted of per se crime of violence was enhanced

under section 18-1.3-406(1)(b), not section 18-1.3-1004(1)(b)).

¶ 47 Take, for example, the statute under which Al-Turki was

convicted, section 18-3-404. That statute instructs that “[i]f a

defendant is convicted of a class 4 felony of unlawful sexual contact

. . ., the court shall sentence the defendant in accordance with the

provisions of section 18-1.3-406.” § 18-3-404(3). But sex offenders

who commit per se crimes of violence are “[w]ithout question”

subject “to the LSA,” Chavez, ¶ 19, and, therefore, the legislature

could have required district courts to use the LSA, and not section

18-1.3-406, to enhance those defendants’ sentences by simply

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instructing that they be sentenced “in accordance with section 18-

1.3-1004(1)(b).” Instead, the legislature made the choice — which I

will assume was informed and deliberate, see People v. Gookins, 111

P.3d 525, 528 (Colo. App. 2004) (in construing statutes, courts

presume that the legislature acted deliberately in its choice of

statutory language) — to continue to direct courts to section 18-1.3-

406 as the applicable enhancement provision, demonstrating its

intent to maintain the sentencing status quo for sex offenders

convicted of per se crimes of violence.3

¶ 48 The People argue that section 18-1.3-406(1)(b)’s reference to

the LSA’s general indeterminate sentencing provision, rather than

3 Even if section 18-1.3-1004(1)(b), C.R.S. 2016, which applies to
sex offenders who are convicted of “defined” crimes of violence,
precludes a subsequent modification of the offender’s sentence
below the aggravated range — an issue I do not address — the
prohibition does not undermine my conclusion that probation is
nonetheless available to other violent sex offenders. It makes sense
that the legislature would treat sex offenders convicted of defined
crimes of violence differently than sex offenders convicted of per se
crimes of violence — the distinction “comports with the goals of the
criminal law to separate more culpable from less culpable conduct.”
People v. Banks, 9 P.3d 1125, 1131 (Colo. 2000) (legislature acted
reasonably in requiring extraordinary risk sentencing for
defendants convicted of defined crimes of violence, but not per se
crimes of violence, because defendants in the former category are
more culpable than those in the latter category).

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its probation provision, suggests an intent to preclude a sentence

reduction to probation. Section 18-1.3-406(1)(b) calls for the

imposition of an indeterminate term of imprisonment “up to a

maximum of the person’s natural life, as provided in section 18-1.3-

1004(1).” (Emphasis added.) Section 18-1.3-1004(1) provides

instructions for imposing an indeterminate prison sentence, while

section 18-1.3-1004(2) authorizes an initial sentence to probation

under certain circumstances. According to the People, if section

18-1.3-406(1)(b) authorized a modification of a sex offender’s

sentence to probation, the section would direct courts to sentence

“as provided in section 18-1.3-1004(1) or 1004(2).”

¶ 49 But everyone agrees that section 18-1.3-406 precludes an

initial sentence to probation. So of course section 18-1.3-406(1)(b)

would not direct the district court to sentence a sex offender “as

provided in section 18-1.3-1004(2)” — a section of the LSA that

authorizes an initial sentence to probation — regardless whether

section 18-1.3-406(1)(b) contemplated a later modification to

probation.

¶ 50 Finally, in considering the consequences of a particular

interpretation of section 18-1.3-406(1)(b), I note that the People’s

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construction of the statute would significantly limit the discretion of

district courts to differentiate among offenders, a result we

generally try to avoid. Hunsaker, ¶ 26; Vensor, 151 P.3d at 1278.

Indeed, eliminating the possibility of a sentence modification below

the mandatory aggravated range for every per se violent sex offender

“is antithetical to the legislature’s goal of increasing sentencing

options in this context.” Hunsaker, ¶ 26.

¶ 51 Although the language of section 18-1.3-406(1)(b) is not a

model of clarity, I think the legislative intent is clear. And I am

mindful of the well-settled principle that “[a] statute should not be

construed in a manner which defeats the obvious legislative intent.”

People v. Summers, 208 P.3d 251, 254 (Colo. 2009) (citation

omitted). I therefore conclude that the district court in this case

had authority under section 18-1.3-406 to reduce Al-Turki’s

sentence below the statutory aggravated range, including to

probation.

¶ 52 I do not mean to suggest, however, that a modification to

probation would be warranted in this case. That is a determination

for the district court. But based on my reading of section 18-1.3-

406 and the LSA, I would reverse the judgment and remand the

29
case to permit the district court to decide Al-Turki’s motion on the

merits.

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