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    Colorado Criminal Sex Crimes Law – Petition to Seal (Expunge) Deferred Judgements in Colorado Sex Crime Cases

    by Colorado Criminal Defense Sex Crimes Lawyer – H. Michael Steinberg

    A recent case decided in 2010 in Colorado makes clear the ban against sealing a Colorado Sex Crime case .. even if the case was plea bargained to a deferred judgement and sentence and the case was therefore dismissed at the end – the termination of the deferred judgement period.

    The case was a Colorado Juvenile Sex Crimes case:

    M.T., Petitioner-Appellee, v. The PEOPLE of the State of Colorado, Respondent-Appellant.

    The case was decided – February 04, 2010

    Colorado has a procedure whereby (with the agreement of a prosecutor) a criminal defendant may plead guilty and receive a deferred judgment. A defendant who complies with the stipulated terms may later withdraw the plea and have the case dismissed.

    The issue in this case was whether courts may seal records of dismissed cases involving alleged sex offenders who received deferred judgments.

    Colorado’s sealing statute, CRS § 24-72-308(1), allows for the sealing of arrest and criminal records in certain circumstances. The Supreme Court held that CRS § 24-72-308(3)(c), which prohibits the sealing of records pertaining to a conviction involving unlawful sexual behavior, applies to a successfully completed and dismissed deferred judgment. Thus, a person with a successfully completed and dismissed deferred judgment for an offense involving unlawful sexual behavior is not eligible to petition to seal records under the sealing statute.

    The COURT HELD THAT the sealing is precluded by section 24-72-308(3)(c), C.R.S..

    Here is the relevant section of the law in Colorado in question in this case:

    24-72-308. Sealing of arrest and criminal records other than convictions.


    (3) Exceptions.

    (a) This section shall not apply to records pertaining to:

    (I) A class 1 or class 2 misdemeanor traffic offense;

    (II) A class A or class B traffic infraction;

    (III) A conviction for a violation of section 42-4-1301 (1) or (2), C.R.S.

    (b) Court orders sealing records of official actions entered pursuant to this section shall not limit the operation of rules of discovery promulgated by the supreme court of Colorado.

    (c) This section shall not apply to records pertaining to a conviction of an offense for which the factual basis involved unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.

    (d) This section shall not apply to arrest and criminal justice information or criminal justice records in the possession and custody of a criminal justice agency when inquiry concerning the arrest and criminal justice information or criminal justice records is made by another criminal justice agency.

    (e) This section shall not apply to records pertaining to a conviction of an offense concerning the holder of a commercial driver’s license as defined in section 42-2-402, C.R.S., or the operator of a commercial motor vehicle as defined in section 42-2-402, C.R.S.

    The clear language of the statute refers to a “conviction” of an offense – but – the court ignored this language and held – no sealing can take place.

    The Background

    In 2004, M.T. pled guilty to the class five felony of attempted sexual assault on a child. Judgment was deferred.

    In 2008, the district court determined that M.T. had complied with the terms of the deferred judgment. M.T. was allowed to withdraw the plea, and the criminal case was dismissed.

    M.T. then filed this civil action seeking to seal the criminal case records. He invoked a statute allowing a person who was “not charged,” was “acquitted,” or (as here) had a case “completely dismissed” to petition for sealing. § 24-72-308(1)(a)(I), C.R.S.2009.

    The People argued that section 24-72-308(3)(c) precluded sealing. That section provides an exception to the sealing statute for “records pertaining to a conviction of an offense for which the factual basis involved unlawful sexual behavior, as defined in section 16-22-102(9), C.R.S. [2009].”

    The district court granted M.T.’s petition to seal the criminal case records. The offense charged in that criminal case indisputably had involved unlawful sexual behavior. The court concluded, however, that section 24-72-308(3)(c) did not preclude sealing because M.T. no longer has a “conviction” for that offense.

    Discussion Of the Issues

    The People argue that the district court had no authority to seal M.T.’s criminal case file because it contains “records pertaining to a [sex offense] conviction,” § 24-72-308(3)(c).

    The Court had to decide whether files in a case dismissed after a deferred judgment still contain “records pertaining to a conviction,” § 24-72-308(3)(c). 

    They held that they do, and that the statutory exception therefore precluded the district court from sealing M.T.’s records.

    A. M.T.’s former “conviction” for unlawful sexual behavior

    The Court’s Reasoning:

    From the time the court accepted M.T.’s guilty plea in 2004 until the plea was withdrawn in 2008, M.T. had a “conviction.” Though the sealing statute does not define “conviction,” a generally applicable statute provides that “acceptance of [a guilty] plea also acts as a conviction for the offense.” § 16-7-206(3), C.R.S.2009.

    “as a matter of historical fact, a defendant who enters but later withdraws a guilty plea in a deferred judgment case once was convicted. …by writing that there is “no longer” a conviction after a plea’s withdrawal, (our courts have) recognized that there once had been a conviction.

    Only by rewriting history or adopting a legal fiction could we deny that M.T. ever had a conviction. Tellingly, such deniability is one of the benefits that sealing would provide; thus, only after the records are sealed could it accurately be said that M.T. was never convicted. See § 24-72 -308(1)(d), C.R.S.2009 (after sealing, person and criminal justice agencies “may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person”); § 24-72-308(1)(f)(I), C.R.S.2009 (person then “may state that no such action has ever occurred”); R.J.Z. v. People, 104 P.3d 278, 280, 282-83 (Colo.App.2004) (discussing consequences of sealing).

    The records pertaining to M.T.’s sex offense conviction

    The court had to decide whether section 24-72-308(3)(c) precludes sealing records pertaining to what once was, but no longer is, a sex offense conviction.

    Their Conclusion?

    “Our conclusion that it does rests on the statutory language (which contains nothing suggesting the conviction must remain extant) and the fact that the statutory exception otherwise would be rendered meaningless. M.T.’s thorough appellate brief also relies heavily on legislative history, but we conclude that history does not support a right to seal his case.

    There is nothing in the text suggesting that the records must pertain to an extant conviction. The criminal case records reflect that M.T. once stood convicted of a sex offense; the fact that he no longer is convicted does not retroactively change the character of the records. The records still pertain to a conviction-albeit a former one that has now been vitiated.

    …the legislature plainly intended the section 24-72-308(3)(c) exception to distinguish records involving unlawful sexual behavior from those involving other types of crimes. Limiting that statutory exception to extant convictions would render meaningless this legislative distinction.

    Records pertaining to convictions can be sealed only if the case has been “completely dismissed.” See § 24-72-308(1)(a)(I). (Sealing is also possible where no charges were filed or there was an acquittal, see id., and hence never a conviction.) But there is no basis for dismissing a case in which a conviction remains extant.

    Thus, if the statutory exception did not cover cases in which there once was (but no longer is) a conviction, cases involving sex offenses would be treated no differently than any other cases. This would contravene the evident legislative intent to preclude sealing of sex offense cases that otherwise might be subject to sealing.

    I agree with the DISSENT in the case (by Judge WEBB):

    …. I believe the proper question to be whether successful completion of a deferred sentence voids the conviction ab initio ( from the beginning) therefore, and with respect, I dissent.

    I agree with the majority that section 24-72-308(1)(a), C.R.S.2009, provides for sealing of criminal records where, as relevant here, a charge has been “completely dismissed,” that successful completion of a deferred sentence under section 18-1.3-102(2), C.R.S.2009, leads to such complete dismissal, and that under section 24-72-308(3)(c), records “pertaining to a conviction” cannot be sealed if the factual basis of the offense, as here, involves unlawful sexual behavior.

    I disagree with the majority because, in my view, “[u]pon full compliance with such conditions [of the deferred sentence] by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice,” section 18-1.3-102(2), means that the conviction has been wiped away. In cases where no trial has occurred, without a guilty plea there can be no conviction.

    Therefore, the absence of a conviction removes any basis for invoking section 24-72-308(3)(c).

    I am unpersuaded by the majority’s assertion that “if the statutory exception did not cover cases in which there once was (but no longer is) a conviction, cases involving sex offenses would be treated no differently than any other cases.” As relevant here, records pertaining to convictions can be sealed only if the case has been “completely dismissed.” § 24-72-308(1)(a)(I). Under section 24-72-308(3)(c), records in sex offense cases that have been “completely dismissed” for any reason other than successful completion of a deferred judgment could not be sealed.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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