Opinion
No. 08CA2295.
October 15, 2009.
Appeal from the District Court, Adams County, Robert S. Doyle, J.
Don Quick, District Attorney, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff-Appellant.
Timothy Wayne Sanders, Pro Se.
The prosecution appeals the trial court's order sentencing defendant, Timothy Wayne Sanders, a sex offender who pled guilty to a misdemeanor charge of failing to register at an additional address, to two years of probation, because the court did not include sex offense-specific treatment, which the prosecution argues resulted in an illegal sentence
Sanders did not object to his appellate counsel's motion to withdraw, which was granted. He has not filed an answer brief, although the order allowing his counsel to withdraw informed him that he was responsible for doing so and granted him additional time.
Conditions of probation are not subject to appellate review "unless probation is granted contrary to the provisions of this title." § 18-1.3-104(1)(a), C.R.S. 2009. Although we accept appeals where a condition of probation was based on "considerations not statutorily or constitutionally authorized," see People v. Hernandez-Clavel, 186 P.3d 96, 98 (Colo.App. 2008) ( cert. granted June 30, 2008, 2008 WL 2580193) (collecting cases), we discern no such ground here because, based on the information before the court when it imposed sentence, treatment was not mandatory. We further conclude that because in the plea disposition, the prosecutor agreed that it would "take no position" on the sentence, the prosecution was barred from urging the court, months after Sanders had been sentenced, to require a second sex offense specific evaluation. Therefore, we do not consider whether that evaluation required the court to impose treatment.
I. Factual Background
In October 1994, Sanders pled guilty to one count of sexual assault on a child, and several other counts were dismissed. He was sentenced to eight years imprisonment, which was modified by placing him in a community corrections sex offender treatment program. During Sanders's tenure in the facility, he admitted to fantasizing about having sex with a sixteen-year-old boy and to grooming the boy to engage in sex acts with him.
Sanders was arrested in November 2007 for failure to register as a sex offender. He had registered with the Brighton Police Department by listing two addresses — one in Brighton, where he resided, and the other in Thornton, where his mother lived. However, he had not registered with the Thornton Police Department for the Thornton address, where he frequently spent the night. A playground was immediately across the street.
Sanders was charged with a class six felony for failing to register under section 18-3-412.5(1)(a) and (2), C.R.S. 2009. The prosecutor asked Sanders's attorney to obtain a pre-plea evaluation to determine, among other issues, whether Sanders should be required to undergo treatment. Sanders underwent an eight-hour psychosexual evaluation by a clinical psychologist registered with the Sex Offender Management Board (SOMB) in the treatment and evaluation of sex offenders.
This evaluation considered four sources of information about Sanders's sexual offense background: (1) a National Crime Information Center criminal history; (2) incomplete records from his community corrections treatment program; (3) a 2006 letter from his treating therapist stating why he was discharged from the treatment program; and (4) his own statements. It recommended appropriate supervision and monitoring, but the evaluator concluded that Sanders did not need sex offender treatment.
The parties entered into a plea disposition in May 2008. The prosecution dismissed the felony violation in exchange for Sanders's pleading guilty to a class one misdemeanor violation of section 18-3-412.5(1)(e) and (3), C.R.S. 2009, failure to register as a sex offender. The prosecution agreed to waive the "two prior felony rule" found in section 18-1.3-201(2)(a), C.R.S. 2009, which states that defendants with two or more prior felony convictions are not eligible for probation. The prosecutor also wrote on the written plea agreement that the prosecution would "take no position" on the sentence in the case.
The probation department conducted a presentence investigation and issued a report that incorporated the evaluation. Although the probation officer disagreed with the recommendation that Sanders did not need treatment, she did not raise any concerns about the evaluation's reliability.
The sentencing hearing was held in August 2008. The prosecutor who appeared at the hearing told the court that, although she was aware the presentence report recommended treatment, the prosecution was "not recommending" treatment and "would defer to the [c]ourt on that issue." The court placed Sanders on probation for two years without a condition that he undergo sex offender treatment.
A month later, Sanders asked the court to clarify his probation conditions because a new probation officer told him that he would be required to fulfill conditions that had not been ordered at the sentencing hearing. At the initial hearing on this issue, a new prosecutor and the new probation officer requested a second sex offense-specific evaluation.
As grounds for this request, the probation officer told the court that Sanders presented a high risk of recidivism. He said that the first evaluation did not address this risk because it did not comply with the standards for such evaluations that had been promulgated by the SOMB. Specifically, the probation officer asserted that the first evaluation should have been prepared after Sanders had admitted his guilt. He explained that the first evaluation did not include important information, such as details of the original offense found in police reports, and the course of Sanders's progress through treatment. Sanders responded that the original prosecutor had not objected to the first evaluation and that the information supposedly omitted from that evaluation was not new.
Noting that Sanders had groomed a sixteen-year-old boy while incarcerated in a community corrections facility between 1994 and 1998, the trial court ordered Sanders to undergo a second evaluation. The evaluator who performed this evaluation considered information that had not been considered in the first one, including the presentence investigation, four monitoring polygraph examinations conducted between 2004 and 2006, and the police reports from the original 1994 offense. The second evaluation recommended that Sanders complete a modified offense-specific treatment program.
In October 2008, the trial court held a second hearing to determine whether it would modify the conditions of Sanders's probation by requiring him to participate in treatment. The court considered the second evaluation, and the prosecutor asked the court to impose treatment as a condition. The probation officer again told the court that it should not consider the first evaluation because it did not comply with the SOMB standards. Sanders responded that the prosecution was seeking to violate the plea disposition and should be "bound by what they stated at sentencing."
Relying on the first evaluation, the trial court declined to add a condition that Sanders participate in treatment. The court made several statements in the course of this ruling:
• The misdemeanor conviction for failure to register was not "a sex-offender offense."
• Sanders might commit another offense.
• Nevertheless, the prosecutor was bound by her statement at the original sentencing hearing that she would not take a position on sentencing unless Sanders decided to withdraw his plea, which he did not do.
• Sanders's conduct leading to the felony failure to register charge was relatively minor, warranting a misdemeanor plea bargain and no sex offense-specific treatment.
II. Legal Background A. Sex Offender Treatment Statutes
The prosecution's illegal sentence argument, which is the basis for invoking our appellate jurisdiction, depends, in part, on the following interconnected statutes:
1. Treatment plays a critical role in the supervision of sex offenders. Section 16-11.7-101, C.R.S. 2009, states:
The general assembly hereby declares that the comprehensive evaluation, identification, treatment, and continued monitoring of sex offenders who are subject to the supervision of the criminal justice system is necessary in order to work toward the elimination of recidivism by such offenders. Therefore, the general assembly hereby creates a program which standardizes the evaluation, identification, treatment, and continued monitoring of sex offenders at each stage of the criminal justice system so that such offenders will curtail recidivistic behavior and the protection of victims and potential victims will be enhanced.
(Emphasis added.)
2. The program for standardizing evaluation, identification, treatment, and monitoring relies, in part, on the SOMB, which the legislature created as part of Colorado's department of public safety. § 16-11.7-103(1), C.R.S. 2009.
3. Part of the evaluation process includes the creation of a risk assessment instrument designed to help trial courts evaluate the "likelihood" that a sex offender will commit additional sex offenses. § 16-11.7-103(4)(c.5), C.R.S. 2009.
4. The SOMB establishes standards for evaluating and identifying sex offenders, and recommending monitoring and treatment, "based upon the knowledge that sex offenders are extremely habituated and that there is no known cure for the propensity to commit sex abuse." § 16-11.7-103(4)(a), C.R.S. 2009.
5. The SOMB develops guidelines and standards for creating a system of treatment programs for all sex offenders, including those placed on probation. These programs are to be "as flexible as possible" so that each offender will be treated in a way that prevents him or her from harming victims and potential victims. § 16-11.7-103(4)(b), C.R.S. 2009. These programs are to be developed in a way that, "to the extent possible," all sex offenders have access to them. Id.
6. The SOMB designates criteria for measuring the progress of sex offenders in treatment. These criteria are designed to assist courts, without limiting their decision-making authority, to determine whether sex offenders can be "appropriately" discharged from probation by, in part, assessing whether they pose "an undue threat to the community." § 16-11.7-103(4)(e), C.R.S. 2009.
7. Any sex offender who is to be considered for probation must, among other obligations, submit to "an evaluation for treatment [and] an evaluation for risk." § 16-11.7-104(1), C.R.S. 2009.
8. Every sex offender placed on probation "shall be required . . . to undergo treatment to the extent appropriate to such offender based upon the recommendation of the evaluation and identification made pursuant to section 16-11.7-104." § 16-11.7-105(1), C.R.S. 2009.
9. "The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so." § 18-1.3-204(1), C.R.S. 2009. When placing a defendant on probation, a trial court must explicitly include the condition that the defendant "comply with any court orders regarding the treatment of sex offenders" imposed under sections 16-11.7-101 to -106, C.R.S. 2009. § 18-1.3-204(1).
Our supreme court recently interpreted this statutory scheme in Hernandez v. People, 176 P.3d 746 (Colo. 2008). The court first determined that section 16-11.7-105(1) was ambiguous because the phrase that sex offenders "shall be required" to undergo treatment was inconsistent with the phrase that this requirement was imposed to the "extent appropriate to such offender based upon the recommendation of the evaluation." Id. at 752.
To resolve this ambiguity, the Hernandez court looked to the language in section 18-1.3-204(1), which provides trial courts with discretion to impose conditions of probation, and to statutory history. Id. at 752-55. This analysis led the supreme court to reach several conclusions:
• The statutory scheme requires sex offenders to undergo treatment only if appropriate for the offender and only to the level appropriate for the offender.
• This decision is based on the recommendations contained in an evaluation conducted pursuant to the SOMB standards.
• Therefore, trial courts have discretion to decide whether to order sex offenders to participate in treatment.
• However, this discretion is "tightly constrained" by the "statutory scheme's legislative intent to curtail recidivistic behavior and enhance victim safety, with the recognition that sex offenders are extremely habituated." Id. at 755.
• Because the statutory scheme "favors imposition" of treatment as a condition of probation, trial courts are required to order treatment when such a probationary condition is supported by the evaluation and its recommendations, and the facts of the case presently before the court. Id.
Based on Hernandez, the prosecution asserts that the second evaluation required the court to impose treatment as a condition of probation.
B. Prosecutorial Promises
The meaning of a plea agreement is a question of law subject to de novo review. St. James v. People, 948 P.2d 1028, 1032 (Colo. 1997). "[W]hether a party has materially and substantially breached a plea agreement is left to the discretion of the trial court." Id. at 1031.
Promises a prosecutor makes that are integral to plea dispositions must be kept. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). "A plea agreement . . . is more than merely a contract between two parties, and must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due." People v. McCormick, 859 P.2d 846, 856 (Colo. 1993). These safeguards are embodied in due process principles that require the enforcement of almost all plea agreements in which defendants reasonably and detrimentally rely on prosecutorial promises and fulfill their side of the bargain. Id.
Our supreme court has recognized only two exceptions to this rule, as explained in cases such as Keller v. People, 29 P.3d 290, 295-96 (Colo. 2000). One exception — that the defendant substantially and materially breached the plea agreement — does not apply here. The second exception — that the agreement produced an illegal sentence — is critical to the prosecution's position here.
Normally, when the prosecution fails to adhere to a plea agreement, the trial court will enforce the prosecution's promise. See Santobello, 404 U.S. at 263, 92 S.Ct. 495; People v. Macrander, 756 P.2d 356, 359 (Colo. 1988). However, the option of specific performance does not exist if the plea agreement involves an illegal sentence, because the parties cannot agree to an illegal sentence. An illegal sentence is invalid, which, in turn, renders the guilty plea invalid. People v. Bottenfield, 159 P.3d 643, 645 (Colo.App. 2006). An illegal sentence may be corrected at any time, see Craig v. People, 986 P.2d 951, 966 (Colo. 1999), and a defendant has no "right to benefit" from an illegal sentence. People v. Dist. Court, 673 P.2d 991, 997 (Colo. 1983).
A sentence is illegal if it does not fully comply with statutory requirements. Delgado v. People, 105 P.3d 634, 636 (Colo. 2005). Even though parts of a sentence are legal, such as its length, it may nonetheless be illegal because other aspects were entered contrary to law. See id. (illegal mandatory parole component); Craig, 986 P.2d at 960 (agreement to waive, modify, or eliminate mandatory parole). "[A]s long as any aspect of a sentence is inconsistent with statutory requirements, the complete sentence is illegal." Delgado, 105 P.3d at 637.
According to the prosecution, after the second evaluation, the probation sentence without treatment triggered the illegal sentence exception.
III. Analysis
At the original sentencing hearing, only the first evaluation, which did not recommend treatment, was before the court. Even accepting the prosecution's contention that Hernandez trumps trial court discretion, at that point the probationary sentence without treatment was legal. Thus, the prosecution could not then have withdrawn from its promise that it would not take a position on the sentence. See Santobello, 404 U.S. at 262, 92 S.Ct. 495; McCormick, 859 P.2d at 856; Macrander, 756 P.2d at 359.
Here, we do not interpret the prosecution's agreement to "take no position" on the sentence as leaving it free to advocate for a particular sentence on behalf of the probation department in a later sentencing proceeding. In general, "[t]he integrity of our judicial system requires that the government strictly comply with its obligations under a plea agreement." United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000). And here, limiting the prosecution's agreement to standing mute at the sentencing hearing, but not thereafter, would deprive Sanders of the benefit of his bargain. See United States v. Ewing, 480 F.2d 1141, 1143 (5th Cir. 1973) ("Surely when Ewing obtained the Government's promise not to oppose probation in exchange for his plea of guilty, he did so in the expectation that the benefits of that promise would be available throughout the proceedings relevant to the determination of his sentence."); see also State v. Lankford, 127 Idaho 608, 615, 903 P.2d 1305, 1311 (1995); State v. Wills, 244 Kan. 62, 70, 765 P.2d 1114, 1120 (1988). We consider these cases well reasoned and adopt them here.
Therefore, during the first hearing to clarify Sanders's probation conditions — where the new prosecutor and the new probation officer urged the trial court to order a second evaluation — the court should have held the prosecution to the conditions of the bargain it made, as Sanders properly argued, and denied the request for the second evaluation. The request for that evaluation was based on information known to the first probation officer, some of which appeared in the presentence investigation report. The prosecution cannot bootstrap the illegal sentence argument by using old information to obtain a second evaluation because the request was contrary to the plea agreement. Cf. Pine v. People, 168 Colo. 290, 295, 455 P.2d 868, 870 (1969) (rejecting bootstrap argument as basis to raise contention for first time on appeal).
We recognize that under the second evaluation, Sanders may have been required to undergo treatment. But had the trial court enforced the prosecutor's promise to take no position on sentencing at the first hearing, that evaluation would never have been performed. And the prosecution's illegal sentence argument fails without it.
Finally, we are not persuaded otherwise by either a court's jurisdiction to impose new conditions of probation under section 18-1.3-204(4), C.R.S. 2009, or the status of probation officers as judicial branch employees. As to the former, we are unaware of any Colorado case interpreting section 18-1.3-204(4) to allow new conditions of probation to be imposed based on information predating the original sentence and known to the probation officer assigned to the case at that time. As to the latter, probation officers are not parties to criminal proceedings and no statute or case allows them to request new conditions of probation independent of the prosecution initiating such a process.
Therefore, we have no basis on which to disturb Sanders's sentence.
Judge ROMÁN concurs.
Judge BERNARD dissents.