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


                                    24
  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


                                      25
            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


                                    26
  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).

                                    27
  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


                                    28
  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.




                                 30
