     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 28, 2018

                                2018COA90

No. 16CA1787, People v. McCulley — Criminal Law — Sex
Offender Registration — Petition for Removal from Registry

     A defendant who pleaded guilty to two crimes involving

unlawful sexual behavior but later had one of those charges

dismissed after successfully completing his deferred judgment

petitioned the trial court for an order allowing him to discontinue

the requirement that he register as a sex offender. The trial court

denied the defendant’s petition because section 16-22-113(3)(c),

C.R.S. 2017, of the Sex Offender Registration Act dictates that an

individual who has more than one conviction for unlawful sexual

behavior is ineligible for such an order. A division of the court of

appeals affirms the trial court’s denial, holding, as a matter of first

impression, that the term “conviction” as used in section 16-22-

113(3)(c) includes a successfully completed deferred judgment. In
so concluding, the division distinguishes this case from People v.

Perry, 252 P.3d 45 (Colo. App. 2010), which interpreted “is

convicted” in section 16-22-113(3)(b) to exclude a successfully

completed deferred judgment.
COLORADO COURT OF APPEALS                                    2018COA90


Court of Appeals No. 16CA1787
Larimer County District Court No. 00CR185
Honorable Daniel J. Kaup, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Keith McCulley,

Defendant-Appellant.


                               ORDER AFFIRMED

                                   Division I
                          Opinion by JUDGE WELLING
                        Taubman and Bernard, JJ., concur

                           Announced June 28, 2018


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for
Defendant-Appellant
¶1    Section 16-22-113(3)(c), C.R.S. 2017, of the Colorado Sex

 Offender Registration Act (SORA) provides that “[a]ny adult who has

 more than one conviction . . . for unlawful sexual behavior” is not

 eligible to petition for removal from the sex offender registry. This

 case presents an issue of first impression: Does the term

 “conviction” as used in subsection 113(3)(c) of SORA include a

 successfully completed deferred judgment? Because we answer this

 question “yes,” we affirm the trial court’s order denying the petition

 to deregister.

                           I.    Background

¶2    In 2000, the People charged the defendant, Brian Keith

 McCulley, with two counts of felony sexual assault, both of which

 were crimes involving unlawful sexual behavior. Months later,

 McCulley entered into a split plea agreement whereby he pleaded

 guilty to one count of second degree sexual assault, a class 4 felony,

 and one count of third degree sexual assault, a class 1

 misdemeanor.1




 1The two counts that McCulley pleaded guilty to were separate
 criminal episodes. Although both counts involved the same victim,

                                    1
¶3    Pursuant to the plea agreement, which the trial court

 approved, McCulley received a four-year deferred judgment on the

 felony charge and a probation sentence on the misdemeanor

 charge. The only condition of his probation sentence was that he

 comply with the terms of the deferred judgment. Under the terms

 of McCulley’s plea agreement, the trial court would dismiss the

 felony charge once McCulley complied with his deferred judgment,

 but he would stand convicted of the misdemeanor after having

 successfully completed his probation sentence. That is exactly

 what occurred. In 2004, McCulley completed his deferred

 judgment, the felony charge was dismissed, and at the same time

 he completed probation on the misdemeanor charge.

¶4    As a condition of his deferred judgment, McCulley was

 required to register as a sex offender. See § 16-22-103(2)(a), C.R.S.

 2017. In 2016, McCulley filed a petition to discontinue the

 requirement that he register as a sex offender. The trial court

 denied McCulley’s petition despite the fact that he had successfully

 completed his deferred judgment. The trial court reasoned that the



 according to the plea, the felony occurred in February 1998, and
 the misdemeanor occurred in August 1995.

                                   2
 statute defines the term “conviction” to include having a deferred

 judgment, McCulley had two convictions, and an individual who

 has more than one conviction for unlawful sexual behavior is

 ineligible for an order discontinuing the registration requirement.

                             II.   Analysis

¶5    McCulley’s sole argument on appeal is that the trial court

 erred by construing the term “conviction” under SORA to include a

 successfully completed deferred judgment. We disagree because we

 conclude that the plain language of SORA dictates that a deferred

 judgment is a “conviction” as used in section 16-22-113(3)(c).

                       A.    Standard of Review

¶6    Our goal when interpreting a statute is to effectuate the

 General Assembly’s intent. Martin v. People, 27 P.3d 846, 851

 (Colo. 2001). To do that, we first look to the statute’s language,

 giving words and phrases their plain and ordinary meaning. People

 v. Padilla-Lopez, 2012 CO 49, ¶ 7. If the statute’s plain language

 unambiguously indicates the legislature’s intent, we apply the

 statute as written. Martin, 27 P.3d at 851. When the statute is

 ambiguous, however, we may “rely on other factors, such as

 legislative history, prior law, the consequences of a given


                                   3
 construction of the statute, and the end to be achieved by the

 statute, to determine the meaning of a statute.” Id.

         B.   Meaning of “Conviction” in Subsection 113(3)(c)

¶7    A defendant who successfully completes his deferred judgment

 may petition the court for an order discontinuing the requirement

 that he register as a sex offender. § 16-22-13(1)(d).2 But that

 provision has an exception. An adult defendant is ineligible for an

 order discontinuing his registration requirement if he “has more

 than one conviction or adjudication for unlawful sexual behavior in

 this state or any other jurisdiction.” § 16-22-113(3)(c).

¶8    Resolution of this appeal turns on the meaning of the word

 “conviction” in subsection 113(3)(c). It is undisputed that the felony

 charge against McCulley was dismissed when he successfully

 completed the deferred judgment, and that, as of the time of his

 petition to deregister, he stood convicted of just the misdemeanor


 2 In addition to successfully completing the deferred judgment, the
 defendant must not have been subsequently convicted of a crime
 involving unlawful sexual behavior and the court must not have
 issued an order continuing the requirement that the defendant
 register. § 16-22-103(1)(a), C.R.S. 2017. There is no dispute that
 McCulley did not commit a subsequent qualifying offense and that
 the court did not issue an order continuing the requirement that he
 register.

                                    4
  charge. So, if the term “conviction” does not include a successfully

  completed deferred judgment, McCulley would have only one

  conviction, and section 16-22-113(3)(c) would not bar the relief he

  seeks. But SORA’s plain language belies McCulley’s interpretation.

¶9     SORA defines “conviction” as follows:

            As used in [SORA], unless the context
            otherwise requires:

            ....

            (3) “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.

  § 16-22-102, C.R.S. 2017 (emphasis added).

¶ 10   By its plain language, the term “conviction” as used in

  subsection 113(3)(c) includes having received a deferred judgment.

  See § 16-22-102(3). And there is no exception in that definition for

  a successfully completed deferred judgment. See Dubois v.

  Abrahamson, 214 P.3d 586, 588 (Colo. App. 2009) (“[T]he General

  Assembly could have drafted section 16-22-102(3) to define

  ‘convicted’ as ‘having received, and failed to successfully complete, a



                                    5
  deferred judgment and sentence,’” but it did not.). Moreover, there

  is nothing in the language or context of the statute to suggest that

  this definition of “conviction” does not apply to subsection 113(3)(c).

  See People v. Molina, 2017 CO 7, ¶ 17 (courts must apply the

  statutory definition of terms absent clear intent to the contrary).

¶ 11   McCulley pleaded guilty to two crimes involving unlawful

  sexual behavior. While he received, and completed, a deferred

  judgment for one of those crimes, subsection 113(3)(c) treats that

  deferred judgment in the same manner as it treats any other

  conviction. And because the statute treats them the same,

  McCulley has more than one conviction and subsection 113(3)(c)

  renders him ineligible for an order discontinuing the requirement

  that he register as a sex offender.3



  3 In this case, McCulley’s two crimes arose from discrete criminal
  episodes. See supra n.1; see also People v. Atencio, 219 P.3d 1080,
  1081 (Colo. App. 2009) (“So long as a person has been convicted of
  more than one charge of unlawful sexual behavior, whether those
  charges were adjudicated in the same case or in separate cases is
  irrelevant: the adjudications are multiple convictions which render
  the person ineligible for relief under []section 16-22-113(1)[, C.R.S.
  2017].”). And McCulley does not contend otherwise. We express no
  opinion, however, on whether a deferred judgment arising out of the
  same criminal episode as another conviction qualifies as a separate
  “conviction” for the purposes of section 16-22-113(3)(c).

                                     6
¶ 12   Relying on People v. Perry, 252 P.3d 45 (Colo. App. 2010),

  McCulley argues that the term “conviction” does not include a

  deferred judgment. In Perry, a division of this court addressed a

  different subsection of section 16-22-113(3) — namely, subsection

  (b). 252 P.3d at 47. Subsection 113(3)(b) provides that a person

  who “is convicted” of sexual assault on a child, among five other

  enumerated offenses, is ineligible for an order discounting the

  registration requirement. The division in Perry concluded that the

  term “is convicted” in that subsection does not include a

  successfully completed deferred judgment. 252 P.3d at 49. But the

  division in Perry premised its conclusion on the fact that the

  definition of “convicted” from section 16-22-102(3), which includes

  “having received a deferred judgement,” applies “unless the context

  otherwise requires.” § 16-22-102. And in Perry, such a context

  existed.

¶ 13   To understand why Perry is distinguishable, a brief review of

  the division’s statutory analysis is helpful. Pursuant to section 16-

  22-108(1)(d)(I), C.R.S. 2017, a person convicted of felony sexual

  assault “has a duty to register for the remainder of his or her

  natural life; except that, if the person receives a deferred judgment


                                    7
and sentence,” he or she may petition the court pursuant to section

16-22-113 for discontinuation of the duty to register. Based on this

relationship between sections 16-22-108(1)(d) and 16-22-113(3)(b),

the division in Perry observed as follows:

           If the words “is convicted” in section 16-22-
           113(3)(b)(II) are understood to mean that a
           person “having received a deferred judgment”
           (under section 16-22-102(3)) only stands
           “convicted” until “the successful completion of
           the deferred judgment and sentence . . . and
           dismissal of the case” (under section 16-22-
           113(1)(d)), then none of [the six subsections of
           section 16-22-113(3)(b)] is at odds with the
           plain language of section 16-22-108(1)(d)(I).

252 P.3d at 49. In other words, if the definition of “is convicted” in

subsection 113(3)(b) includes a successfully completed deferred

judgment for a crime enumerated in that subsection, one could

never obtain the relief outlined in section 16-22-108(1)(d) because

section 16-22-113(3)(b) would always bar such relief. 252 P.3d at

49. Thus, the Perry division concluded that the context of

subsection 113(3)(b) requires the exclusion of a successfully

completed deferred judgment from the definition of “is convicted,”

holding that such an “interpretation avoid[s] the needless creation




                                   8
  of a statutory conflict.” Id. The division in Perry further noted that

  its interpretation

             is also the most logical because (1) it
             acknowledges that the General Assembly’s use
             of the words “is convicted” was a deliberate
             decision to speak in the present tense, rather
             than referring to persons who had been
             previously convicted of an enumerated
             disqualifying offense; and (2) it is consistent
             with precedent analyzing when, in other
             contexts, a deferred judgment constitutes a
             “conviction.”

  Id.

¶ 14    But the contextual concerns that animated the holding in

  Perry simply do not arise with respect to subsection 113(3)(c)

  because that subsection operates differently than does subsection

  113(3)(b). Subsection 113(3)(c) provides that a court may not issue

  an order discontinuing the registration requirement for an

  individual who “has more than one conviction” for unlawful sexual

  behavior. Including a deferred judgment within the meaning of

  “conviction” for that subsection in no way affects section 16-22-

  108(1)(d) or any other provision of SORA. Therefore, unlike the

  situation in Perry, subsection 113(3)(c) does not provide the context

  required to depart from the statutory definition.



                                    9
¶ 15   Nevertheless, McCulley argues that the word “has” in the

  phrase “has been convicted” shows that the General Assembly

  intended to speak in the present tense, and is akin to the word “is”

  relied on in Perry. According to McCulley, he was convicted of the

  felony only during the four years that he was completing his

  deferred judgment, but he no longer “has” the felony conviction

  because he successfully completed the deferred judgment. But as

  discussed above, for the purposes of subsection 113(3)(c),

  conviction means “having received a deferred judgment.” § 16-22-

  102(3). Successfully completing his deferred judgment does not

  change the fact that McCulley “received a deferred judgment” in

  connection with his guilty plea to the felony. Id. So, even though

  there may be some situations where a deferred judgment is not

  treated like a conviction, see, e.g., M.T. v. People, 275 P.3d 661, 663

  (Colo. App. 2010) (“[A] defendant who enters but later withdraws a

  guilty plea in a deferred judgment case once was convicted,” but is

  no longer after withdrawing his plea), aff’d, 2012 CO 11, subsection

  113(3)(c) treats a prior deferred judgment in the same manner it

  would treat a conviction resulting from any other basis. And we are

  not persuaded that the context requires otherwise.


                                    10
                            III.   Conclusion

¶ 16   The trial court’s order denying McCulley’s petition for

  discontinuation of the requirement that he register as a sex offender

  is affirmed.

       JUDGE TAUBMAN and JUDGE BERNARD concur.




                                    11
