People v. Dulac

548 P.3d 1159

2024 COA 14

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Derek Abram DULAC, Defendant-Appellant.

Court of Appeals No. 22CA2216

Colorado Court of Appeals, Div. IV.

Announced February 15, 2024

Grand County District Court No. 16CR52, Honorable Sandra H. Gardner, Judge

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Anthony J. DiCola, Hot Sulphur Springs, Colorado, for Defendant-Appellant

Opinion by JUDGE SCHOCK

¶ 1 A person who is required to register as a sex offender under the Colorado Sex Offender Registration Act (SORA) ordinarily must wait a specified period of time before petitioning to discontinue registration. § 16- 22-113(1)(a)-(c), C.R.S. 2023. But there is an exception when the registration requirement results from a deferred judgment and sentence or a deferred adjudication. In that case, the person may petition for removal from the registry "after the successful completion of the deferred judgment and sentence or deferred adjudication and dismissal of the case." § 16-22-113(1)(d).

¶ 2 The question in this case is whether this exception applies to a person who successfully completes a deferred judgment and sentence for a sex offense but has other outstanding convictions in the same case. Because section 16-22-113(1)(d) requires dismissal of "the case" before a petition may be filed, we hold that it does not.

¶ 3 Defendant, Derek Abram Dulac, appeals the denial of his petition for removal from the sex offender registry under those circumstances. He received a deferred judgment and sentence for a sex offense but also pleaded guilty to two non-sex offenses in the same case. After successfully completing his deferred judgment and sentence, Dulac petitioned for removal from the registry. The district court denied the petition, concluding that Dulac was ineligible to petition for removal under section 16-22-113(1)(d) because his case had not been dismissed. We affirm.

I. Background

¶ 4 Dulac pleaded guilty to one count of attempted sexual assault and two counts of third degree assault arising from his assault of two women while they were sleeping. For the attempted sexual assault count, Dulac agreed to and received a deferred judgment and sentence, which included four years of sex offender intensive supervision probation. For the third degree assault counts, Dulac was sentenced to sixty days in jail and four years of unsupervised probation, consecutive to the deferred sentence on the other count. The parties’ stipulation provided that the third degree assault counts would not be dismissed upon successful completion of the deferred judgment and sentence. Dulac was required to register as a sex offender due to the attempted sexual assault count.

¶ 5 Dulac successfully completed the deferred judgment and sentence, which resulted in dismissal of the attempted sexual assault charge. See § 18-1.3-102(2), C.R.S. 2023. He then filed a petition under section 16-22-113(1)(d) to discontinue sex offender registration. That statute allows for such a petition

[i]f the person was required to register due to being placed on a deferred judgment and sentence or a deferred adjudication for an offense involving unlawful sexual behavior, after the successful completion of the deferred judgment and sentence or deferred adjudication and dismissal of the case.

§ 16-22-113(1)(d). When Dulac filed his petition, he was still serving his probationary sentences for the third degree assaults.

¶ 6 The district court held a hearing on the petition and ordered the parties to brief whether Dulac was eligible to petition for registry removal under section 16-22-113(1)(d). The People argued he was not. They asserted that subsection (1)(d) requires "dismissal of the case" and that Dulac’s case had not been (and never would be) dismissed due to his third degree assault convictions. Dulac acknowledged that the third degree assault charges would never be dismissed, but he argued that he should be permitted to petition for removal under section 16-22-113(1)(d) because "[t]he legislature had to have intended the statute to mean dismissal of the deferred charge[,] not dismissal of everything else involved in the case."

¶ 7 The district court agreed with the People. It concluded that section 16-22-113(1)(d) includes two conditions precedent to a petition for removal: successful completion of the deferred judgment and sentence, and dismissal of the case. And because Dulac’s case had not been dismissed, he did not qualify for relief under that subsection. Instead, it explained that Dulac could petition for relief under section 16-22-113(1)(b), which imposes a ten-year waiting period. The court therefore denied Dulac’s petition as premature.

II. Analysis

¶ 8 Dulac contends that the district court erred by concluding that he is ineligible to petition for removal from the sex offender registry when he has successfully completed his deferred judgment and sentence and his only remaining convictions are not sex offenses. But his argument on appeal is slightly different than the one he made below. In the district court, Dulac argued that "dismissal of the case," as used in section 16-22-113(1)(d), should be construed to mean "dismissal of the deferred charge." He does not pursue that argument on appeal. Instead, he asserts that "dismissal of the case" is required only when the person was placed on a deferred adjudication and not when the person was placed on a deferred judgment and sentence. We disagree.

A. Principles of Statutory Interpretation

¶ 9 The construction of a statute is a question of law that we review de novo. McCulley v. People, 2020 CO 40, ¶ 10, 463 P.3d 254. In interpreting statutes, "our primary purpose is to ascertain and give effect to the legislature’s intent." Id. To accomplish this task, we begin with the language of the statute, giving the words and phrases their "plain and ordinary meaning" and reading them in context "according to the rules of grammar and common usage." Id. (citation omitted). We must also "interpret the statute as a whole and in the context of the entire statutory scheme, giving consistent, harmonious, and sensible effect to all its parts." Id. If the language of a statute is clear and unambiguous, we must apply the statute as written and look no further. Cowen v. People, 2018 CO 96, ¶ 12, 431 P.3d 215.

B. Section 16-22-113(1)(d) Applies Only When the Case Has Been Dismissed

¶ 10 Dulac’s argument hinges on how the clauses of section 16-22-113(1)(d) are divided. As noted above, the statute permits the filing of a petition to deregister "after the successful completion of the deferred judgment and sentence or deferred adjudication and dismissal of the case." Id. (emphasis added). A natural reading of this provision — and the one adopted by the district court — is that it imposes two prerequisites that must both be satisfied before a petition may be filed: (1) successful completion of the deferred judgment and sentence or deferred adjudication and (2) dismissal of the case. See People v. Carbajal, 2012 COA 107, ¶ 51, 312 P.3d 1183.¹

¶ 11 But Dulac proposes a different division of the statutory language. He contends that the phrase should instead be divided into two alternative grounds for seeking deregistration, separated by the word "or": (1) successful completion of the deferred judgment and sentence or (2) deferred adjudication and dismissal of the case. Under this construction, dismissal of the case would be required for a deferred adjudication but not for a deferred judgment and sentence. We reject Dulac’s proposed construction for four reasons.

¶ 12 First, it is inconsistent with our case law. Although no Colorado case has directly addressed the question we do here, cases considering petitions to deregister after completion of a deferred judgment and sentence have treated "dismissal of the case" as a requirement in that context. In Carbajal, the court identified "successful completion of the deferred judgment and sentence" and "dismissal of the case" as two distinct "express statutory factors" that a district court must consider in ruling on a section 16-22-113(1)(d) petition. Carbajal, ¶ 51. Similarly, in McCulley, the supreme court summarized section 16-22-113(1)(d) as permitting a petition to deregister after successful completion of the deferred judgment and sentence and dismissal of the case. McCulley, ¶ 5 n.3;² see also People v. Perry, 252 P.3d 45, 49 Colo. App. 2010).

¶ 13 Indeed, in McCulley, the court noted that section 16-22-113(1)(b) — not section 16- 22-113(1)(d) — governed the timing of the defendant’s petition because he had an outstanding misdemeanor conviction. McCulley, ¶ 5 n.3. And although the misdemeanor conviction in McCulley was itself a sex offense, unlike Dulac’s remaining convictions, the court did not indicate that its conclusion was contingent on the nature of the outstanding conviction. Id. As in this case, the defendant in McCulley was required to register as a condition of his deferred judgment. Id. at ¶¶ 3, 17. Completion of that deferred judgment nevertheless was not sufficient for the defendant to invoke section 16-22-113(1)(d).

¶ 14 Second, Dulac’s bifurcation of the phrase "deferred judgment and sentence or deferred adjudication" is inconsistent with other statutory uses of that phrase. Elsewhere in SORA — including in the first clause of the sentence at issue — the phrase "deferred judgment and sentence or deferred adjudication" is used as a unitary phrase encompassing both types of dispositions, with no distinction between the two. See § 16-22-113(1)(d) ("If the person was required to register due to being placed on a deferred judgment and sentence or a deferred adjudication …."); § 16-22-102(3), C.R.S. 2023 (defining "conviction" to include "having received a deferred judgment and sentence or a deferred adjudication"). Other statutes use the phrase in the same way. See ...