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Colorado Supreme Court Holds Successfully Completed Deferred Judgment Does Not Count as Conviction Barring Relief From Sex Offender Registration


by Matt Clarke 

The en banc Supreme Court of Colorado held that the successful completion of a deferred judgment for a sex offense, which resulted in the dismissal of that charge, does not count as a conviction for purposes of the bar to petitioning a court to discontinue requiring sex offender registration for a person who “is convicted” of more than one sex offense set forth in § 16-22-113(3)(c), C.R.S. (2019), of the Colorado Sex Offender Registration Act. 

As part of a plea agreement, Brian Keith McCulley pleaded guilty to one count each of second-degree sexual assault in violation of 18-3-403(l)(a), C.R.S. (2000), a fourth-degree felony, and third-degree sexual assault in violation of 18-3-404(l)(c), C.R.S. (2000), a class 1 misdemeanor.

He was sentenced to a four-year deferred judgment for the felony and received a 60-day jail sentence plus two years of probation for the misdemeanor. The probation required him to comply with the terms of the deferred judgment, and one of those terms was that he register as a sex offender.

McCulley successfully completed the terms of the felony deferred judgment, and the court ordered his guilty plea withdrawn and dismissed the felony charge.

Thus, the only remaining conviction was the misdemeanor. He continued to register as a sex offender based on that conviction. Twelve years later, he petitioned the court under § 16-22-113 to discontinue the registration requirement. The court denied the petition, ruling that the successfully completed deferred judgment counts as a conviction thereby disqualifying him from relief.

A unanimous panel of the court of appeals affirmed the district court. 

Denver attorney Jonathan D. Reppucci of the Reppucci Law Firm represented McCulley on appeal to the Colorado Supreme Court. The Court conducted a de novo review. It noted that § 18-1.3-102(2), C.R.S., requires a court to withdraw a guilty plea and dismiss a case with prejudice upon successful completion of a deferred judgment. Prior to the withdrawal of the guilty plea, the court had accepted the plea, and that caused it to “act as a conviction.” M.T. v. People, 269 P.3d 1219 (Colo. 2019). Once the guilty plea is withdrawn and the charge dismissed with prejudice, there is no longer a conviction. Hafelfinger v. Dist. Court, 674 P.2d 375 (Colo. 1984).

Although the misdemeanor conviction was sufficient to require McCulley to register as a sex offender, § 16-22-113(l)(b), C.R.S., provides that a person such as McCulley, who is required to register because of a conviction for class 1 misdemeanor third-degree sexual assault under § 18-3-404, C.R.S., as it existed prior to July 1, 2000, may petition the court for and order discontinuing of the duty to register 10 years after final release from the court’s jurisdiction if not subsequently convicted of a sex offense. But § 16-22-113(3), C.R.S., prohibits the deregistration of, among other persons, “[a]ny person who is convicted as an adult” of more than one sex offense.

Another statute, § 16-22-113(l)(d), C.R.S., expressly provides that a person who is required to register “due to being placed on a deferred judgment and sentence” can petition for removal from the registry. 

The court of appeals in People v. Perry, 252 P.3d 45 (Colo. App. 2010), focused on the context of “is convicted” in § 16-22-113(3) and determined that it does not encompass a successfully completed deferred judgment. It noted that to construe it otherwise would cause16-22-113(3) to conflict with and disallow what § 16-108(l)(d)(I), C.R.S., allows – specifically for a person who received a deferred judgment for sexual assault on a child to petition the court to discontinue the registration duty – as well as conflict with numerous court opinions holding that a successfully completed deferred judgment no longer constitutes “a conviction.” Further, the General Assembly deliberately chose the present tense, rather than referring to persons “previously” convicted.  

The Supreme Court found the Perry Court’s analysis constructive and persuasive, adopting it as its own and holding “that a ‘conviction’ for the purposes of section 16-22-113(3)(c) does not include a successfully completed deferred judgment.” Thus, it held McCulley was eligible to petition the district court to discontinue his duty to register.

Accordingly, the Court reversed the judgment of the court of appeals and remanded for further proceedings consistent with its opinion. See: McCulley v. People, 463 P.3d 254 (Colo. 2020). 

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McCulley v. People



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