Moore v. 4th Jud. Dist. Att'y

553 P.3d 900

2024 COA 48

Raymond Edward MOORE, Plaintiff-Appellant,

v.4TH JUDICIAL DISTRICT ATTORNEY, Defendant-Appellee.

Court of Appeals No. 23CA1538

Colorado Court of Appeals, Div. VI.

Announced May 2, 2024

El Paso County District Court No. 23CV30866, Honorable Gregory R. Werner, Judge

Borquez Law Office, Robert P. Borquez, Denver, Colorado, for Plaintiff-Appellant

No Appearance for Defendant-Appellee

Opinion by JUDGE YUN

¶ 1 Raymond Edward Moore appeals the district court’s order denying his petition to discontinue his sex offender registration. We conclude that, because Moore has more than one conviction as an adult for unlawful sexual behavior, section 16-22-113(3)(c), C.R.S. 2023, renders him ineligible to petition for removal from the sex offender registry. In doing so, we reject Moore’s argument that, because section 16-22-113(3)(c) contains a reference to section 16-22-103(2), C.R.S. 2023, it applies only to convictions for unlawful sexual behavior entered on and after July 1, 1994. Accordingly, we affirm.

I. Background

¶ 2 Moore has two out-of-state convictions for sexual offenses involving minors. In 1987, when he was eighteen years old, a Minnesota jury convicted him of criminal sexual conduct in the first degree with a minor. In 1999, when he was thirty-one, he pleaded guilty in Indiana to sexual misconduct with a minor. Moore subsequently moved to Colorado and registered as a sex offender based on his Indiana conviction. See § 16-22-103(1)(b) (providing that "[a]ny person who was convicted on or after July 1, 1991, in another state or jurisdiction, … of an offense that, if committed in Colorado, would constitute an unlawful sexual offense," is required to register).

¶ 3 In 2023, Moore filed a petition to discontinue his sex offender registration, and the People filed an objection. At a hearing, the People argued that Moore was ineligible to petition for removal from the sex offender registry for two reasons: first, because he has more than one conviction as an adult for unlawful sexual behavior, see § 16-22-113(3)(c), and second, because his Indiana offense, if committed in Colorado, would constitute sexual assault on a child, see § 16-22-113(3)(b)(II). The district court agreed with the People’s second argument and denied the petition.

¶ 4 Moore appeals the district court’s order.

II. Analysis

[1] ¶ 5 Moore contends that the district court erred by denying his petition to discontinue his sex offender registration. We affirm the distinct court’s order, but we do so for the first reason argued by the People — Moore’s multiple convictions for unlawful sexual behavior. See Taylor v. Taylor, 2016 COA 100, ¶ 31, 381 P.3d 428 ("An appellate court may … affirm on any ground supported by the record.").¹

A. Standard of Review

[2, 3] ¶ 6 We review a district court’s denial of a petition to discontinue sex offender registration for an abuse of discretion. See People v. Carbajal. 2012 COA 107, ¶ 48, 312 P.3d 1183 ("[T]he statute appears to leave to the discretion of the trial court the ultimate decision of whether to grant a petition requesting discontinuation of sex offender registration, as well as the factors to consider in making that decision."). "A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misconstrues or misapplies the law." In re Marriage of Fabos, 2022 COA 66, ¶ 16, 518 P.3d 297.

[4–8] ¶ 7 Statutory interpretation is a question of law that we review de novo. Yen, LLC v. Jefferson Cnty. Bd. of Comm’rs, 2021 COA 107, ¶ 10, 498 P.3d 1140. We aim to effectuate the legislature’s intent, and, in doing so, we look first to the statute’s plain language, giving words and phrases their plain and ordinary meanings. Oakwood Holdings, LLC v. Mortg. Invs. Enters. LLC, 2018 CO 12, ¶ 12, 410 P.3d 1249. We must also interpret the "applicable statutory provisions as a whole in order to accord consistent, harmonious, and sensible effect to all their parts." Yen, ¶ 11 (quoting Prairie Mountain Publ’g Co. v. Regents of Univ. of Colo., 2021 COA 26, ¶ 12, 491 P.3d 472). If the statute’s language is clear, we must apply it as written and need look no further. Oakwood Holdings, ¶ 12. But if the language is ambiguous — that is, if it is "reasonably susceptible of multiple interpretations" — we may turn to other tools of statutory interpretation, including the statute’s legislative history. Hice v. Giron, 2024 CO 9, ¶ 10, 543 P.3d 385 (quoting McBride v. People, 2022 CO 30, ¶ 23, 511 P.3d 613).

B. Law and Discussion

¶ 8 Section 16-22-113 governs petitions for removal from the sex offender registry and provides that certain persons "are not eligible for relief pursuant to this section, but are subject for the remainder of their natural lives to the registration requirements." § 16-22-113(3). Subject to an exception not relevant here, such persons include "[a]ny adult who has more than one conviction as an adult for unlawful sexual behavior or any other offense, the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103(2), in this state or any other jurisdiction." § 16-22-113(3)(c).

¶ 9 The referenced section 16-22-103(2) is lengthy. Paragraph (a) provides that, "[o]n and after July 1, 1994, any person who is convicted in the state of Colorado of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior, … shall be required to register" as a sex offender. § 16-22-103(2)(a).² Paragraph (b) incorporates the definition of "unlawful sexual behavior" set forth in section 16-22-102(9), C.R.S. 2023. § 16-22-103(2)(b). Paragraphs (c) and (d) concern how to determine, for convictions entered on or after July 1, 2002, whether a person has been "convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior," and how the Department of Corrections may determine that a person is a sex offender for the purposes of classification and treatment. § 16-22-103(2)(c)-(d).

¶ 10 At the hearing on Moore’s petition, the People argued that Moore’s two convictions for unlawful sexual behavior rendered him ineligible under section 16-22-113(3)(c) to petition for removal from the sex offender registry.

[9] ¶ 11 Moore concedes that he is an "adult who has more than one conviction as an adult for unlawful sexual behavior" in other states. See §§ 16-22-113(3)(c), 16-22-102(9). But he argues that, by referring to section 16-22-103(2), section 16-22-113(3)(c) adopts "the time frame set out" in section 16- 22-103(2)(a). Specifically, he argues that, because section 16-22-103(2)(a) creates a registration requirement only for persons convicted of unlawful sexual behavior "[o]n and after July 1, 1994," section 16-22-113(3)(c) also applies only to convictions on and after July 1, 1994. Thus, under Moore’s reading of section 16-22-113(3)(c), the only convictions that count when determining whether an adult "has more than one conviction as an adult for unlawful sexual behavior" are those entered on and after July 1, 1994. So, he argues, his 1987 Minnesota conviction "does not constitute a second conviction precluding [him] from discontinuing registration." We are not persuaded for three reasons.

¶ 12 First, because Moore concedes that his two convictions were for "unlawful sexual behavior" rather than "any other offense, the underlying factual basis of which is unlawful sexual behavior," the phrase "pursuant to section 16-22-103(2)" does not apply to his convictions. § 16-22-113(3)(c). For clarity and convenience, we quote the relevant statutory language again here: the persons "not eligible for relief" pursuant to section 16-22-113 include

[a]ny adult who has more than one conviction as an adult for unlawful sexual behavior or any other offense, the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103(2), in this state or any other jurisdiction.

§ 16-22-113(3)(c). Thus, for the reference to section 16-22-103(2) to apply to Moore’s convictions, the phrase "the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103(2)" must apply to both preceding terms, "unlawful sexual behavior" and "any other offense." But a "conviction … for unlawful sexual behavior …, the underlying factual basis of which is unlawful sexual behavior," would be redundant. The underlying factual basis is relevant only when the conviction is not for "unlawful sexual behavior" but for some "other offense." See McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379 ("We read statutory words and phrases in context, and we construe them according to the rules of grammar and common usage."). Accordingly, under the statute’s plain language, the phrase "the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103(2)" applies only to "any other offense."

¶ 13 Second, even considering alone the phrase "any other offense, the underlying factual basis of which is unlawful sexual behavior," we disagree with Moore that the legislature intended the reference to section 16-22-103(2) to incorporate the time limitation — "[o]n and after July 1, 1994" — set forth in section 16-22-103(2)(a). The time limitation applies to the affirmative obligation to register, which is a different question from eligibility to petition for deregistration. Instead, a more likely explanation for the reference to section 16-22-103(2) is that the legislature intended to capture the detailed guidance in subsection (2)(e) concerning how to determine whether a person has been "convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior."

¶ 14 Third, even assuming that the language of section 16-22-113(3)(c) is ambiguous, the statute’s legislative history further supports our conclusion that it is not limited to convictions entered on and after July 1, 1994. In 2002, when section 16-22-113(3) was first...