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The Colorado Supreme Court.

In a 4-3 decision, the Colorado Supreme Court has ruled that a criminal defendant was entitled to his request to de-register as a sex offender because he completed the terms of his probationary sentence and therefore no longer had a conviction under the law.

Brian Keith McCulley pleaded guilty in 2000 to two counts of sexual assault. One of the charges, a misdemeanor, resulted in 60 days in jail while the other, a felony, carried a deferred judgment. In Colorado, deferred judgments allow for completion of probation lasting a period of months to years. If the defendant satisfies the conditions of probation, the court dismisses the case.

For his felony, McCulley had to serve four years on probation and register as a sex offender. In 2004, he completed the probation and a judge withdrew McCulley’s guilty plea and dismissed the charge against him.

Years later, in 2016, McCulley petitioned to de-register as a sex offender. The Colorado Sex Offender Registration Act prevents someone who has more than one conviction from requesting such a discontinuation. Prosecutors argued that the law included the deferred judgment as a “conviction,” even though McCulley countered that his record, as it stood, only included one misdemeanor sex crime conviction.

A district court agreed with the prosecution, claiming that the “legislative intent” of the law was to bar even those with deferred sentences from de-registering in the state’s offender tracking system. The Colorado Court of Appeals also reached the same conclusion.

Justice Justice Monica M. Márquez, writing for the Supreme Court’s majority, explained that cases of deferred judgment are treated as a “conviction” while the defendant completes his probation, even though the court has postponed officially recording it as such. However, once he completes the terms of his sentence, he is no longer "convicted."

Márquez pointed out that Colorado’s SORA prohibits those who “received a deferred judgment and sentence” from de-registering. The missing piece, she wrote, was that the law “does not expressly address successfully completed deferred judgments and sentences.”

The court relied on a past case from the Colorado Court of Appeals, People v. Perry, which involved a sex offender who wished to terminate his registration. The appellate body determined in that instance that a deferred sentence did not amount to a conviction under SORA. 

Likewise, Márquez agreed that someone who "has" more than one conviction per the law is not identical to someone who "received" more than one conviction, regardless of what happened subsequent to that conviction. Under the prosecutors’ logic, she argued, anyone whose conviction was reversed on appeal might be precluded from de-registering because they technically received a conviction at some point.

Dissenting for himself and on behalf of Chief Justice Nathan B. Coats and Justice William W. Hood, III, Justice Brian D. Boatright looked to the same clause about defendants who “received a deferred judgment and sentence” and reached the opposite conclusion: the law did not mention those with completed sentences because it did not envision special treatment for them.

The statute makes no distinction between a successfully completed deferred judgment versus an existing deferred judgment,” Boatright wrote, “and there is simply no exception for a defendant who has successfully completed a deferred judgment.”

He added that he agreed with the majority about the undesirable result of a person still needing to register even if their conviction were reversed on appeal. Nevertheless, Boatright did not reason that McCulley’s case and the Perry case should have the same outcome. McCulley, who had two charges originally, had a fundamentally different position than Perry, where the defendant had only one charge that resulted in a suspended sentence. While the de-registration provision clearly applied in the latter case, the dissenting justices determined that the second sex assault charge should render the relief inapplicable for McCulley.

The case is Brian Keith McCulley v. The People of the State of Colorado.

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