The state Supreme Court has created an exception to its major ruling from two years ago striking down criminal sentences that combined prison and probation, deciding on Monday that sex offenders may indeed be subject to both types of punishment.

In pair of 5-2 rulings on cases arising from Denver, a majority of the Court’s members backed away from their 2019 decision in Allman v. People, with Justice Carlos A. Samour Jr. justifying the move in the first four words of the June 14 opinion.

“Sex offenses are different,” wrote Samour.

In Allman, the Court found it impermissible for a criminal sentence to combine prison and parole with probation in cases involving multiple offenses. Because probation takes place in lieu of prison, and different supervisory authorities could subject someone to competing conditions for parole and probation, the justices unanimously decided that combining those punishments was a violation of the legislature’s limits on punishment.

However, the offenses at issue in Allman were non-sexual, leaving open the question of what the law allows when a sex crime is among the charges.

Michael Anthony Manaois received consecutive sentences for prison and sex offender intensive supervised probation pursuant to the Sex Offender Lifetime Supervision Act. Conditions for probation may include a curfew, drug and alcohol screenings, and participation in a treatment program, among other requirements.

Manaois pleaded guilty to sexual assault and menacing when he kidnapped his ex-girlfriend and forced her to have sex at knifepoint. A district court judge sentenced him to two years in prison for the menacing offense, plus at least six years of supervised probation for the sexual crime.

The Court of Appeals subsequently overturned Manaois’s sentence, convictions and guilty plea, citing Allman‘s prohibition on the combination of punishments. But a separate appellate panel in a different case, People v. Ehlebracht, reached the opposite conclusion, finding a sex offender exception existed for the Allman decision.

The Denver District Attorney’s Office turned to the Supreme Court, asking for a reinstatement of Manaois’s convictions and an affirmation of the Ehlebracht ruling. The Supreme Court’s majority sided with the prosecution, finding the General Assembly intended to treat sex crimes differently from all others. As such, while the Allman decision remained “alive and well” for non-sexual offenses, the case did not apply to Manaois.

“Critically, while the general sentencing statutes reflect the legislature’s disapproval of consecutive prison-probation sentences, SOLSA, by contrast, reflects the legislature’s approval of such sentencing in cases including a sentence for a non-sex offense and a sentence for a sex offense,” Samour explained.

As far back as 1968, the General Assembly imposed an indefinite sentencing structure on sex offenses. SOLSA, enacted three decades later, declared that sex offenders who receive treatment and supervision “can function as safe, responsible, and contributing members of society.” That treatment and supervision may need to last for the rest of a person’s life.

For those offenders sentenced to prison, the parole board may release people who achieve sufficient progress in their treatment. Determining whether an individual requires prison or probation includes an assessment of the most suitable setting for treatment.

Importantly, in contrast to Allman‘s finding that combination sentences impermissibly extended a defendant’s post-release supervision, the majority in Manaois noted that regardless of a prison or a probation sentence, an individual potentially faces supervision for the rest of his life for a sex crime.

“Given all this, there can be little doubt that SOLSA marches to the beat of its own drum,” wrote Samour.

Disagreeing with that analysis were Chief Justice Brian D. Boatright and Justice Melissa Hart, who believed the Court should follow Allman, and not create an exception to it. Boatright, who authored the Allman decision, argued that SOLSA only changed the length of probation for sex offenders, and did not grant courts the ability to impose both probation and prison.

“The statute does not stand apart, creating a separate and independent probationary authority for sex offenses,” Boatright wrote in the dissenting opinion. “The statute modifies and supplements – but does not replace – the general probation statutes.”

Boatright also observed the same problem existed for sex offenders as for defendants covered under the Allman decision: courts were using probation to extend a person’s post-incarceration supervision beyond the defined periods of parole.

Former Sen. Norma Anderson, R-Lakewood, who was a member of the House of Representatives at the time she sponsored SOLSA, told Colorado Politics on Monday that the Court’s majority accurately interpreted the legislature’s intent at the time.

“There’s also a little clause in that statute that everybody forgets,” she said, referencing the ability of courts to end a sex offender’s probation after 10 or 20 years, and with it the requirement to appear in the state’s sex offender registry. The legislature, however, made some types of sex crimes ineligible for de-registration.

“It’s that carrot hanging out there. Be good, and you won’t have to have your name on that list for everybody to dislike you immediately,” Anderson said.

In the second case implicating Allman, a majority of justices also upheld the use of combination punishments when the sex offender probation amounts to a fixed-term sentence. For Patrick S. Keen, who pleaded guilty to assault and attempted sexual assault – deemed a “sex-related offense” – he sought to overturn his 16-year prison sentence and eight-year probation following the Allman decision.

Because the General Assembly intended to allow prosecutors to take indeterminate sentences off the table and thereby increase the use of plea bargains, Samour determined the use of prison plus fixed-term probation was serving the legislature’s original goal for sex-related offenses, and consequently was legal.

Boatright, along with Hart, again indicated he would have voided the guilty plea, given that the eight-year probationary period following incarceration still exceeded the time limits on parole the General Assembly had established.

Jessica Dotter, sex assault resource prosecutor with the Colorado District Attorneys’ Council, said the organization representing the state’s prosecutors was pleased the Court provided clarity on the legality of combination sentences.

“The sentencing of sex offenders in Colorado is uniquely structured in order to reflect the complexity of these terrible crimes and the need for long-term treatment and supervision of sex offenders,” she said.

Had the Supreme Court invalidated the sentencing structure, it would have left prosecutors with the choice of pursuing solely probation or solely prison for cases involving a sex crime. Prosecutors told Colorado Politics earlier this year that many defendants would rather plead guilty and receive a fixed-term punishment instead of potential lifetime supervision.

The cases are People v. Manaois and People v. Keen. The Court handed down three other decisions – two from Denver and one from Arapahoe County – directing lower courts to reinstate the original sentences and convictions of defendants whose circumstances were similar to those of Manaois and Keen. All of the related cases were also decided 5-2.

This story has been updated with additional information about the ability of sex offenders to de-register.