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Colorado Sex Crimes Sex Offender Evaluations – The Critical Importance Of The Evaluation AND The Dangers Of The Sexual Violent Predator Designation (SVP)

By Colorado Criminal Defense of Sex Crimes Lawyer – H. Michael Steinberg

Introduction: The Importance of the Sex Offender Evaluation in a Colorado Sex Crimes case cannot be understated. In the following analyzed case – the state certified evaluated recommended AGAINST a finding that the Defendant – convicted of sex crimes – was a Sexually Violent Predator (SVP), BUT the judge has discretion to ignore that recommendation and finding and can – and did in this case – sentence the Defendant to life in prison!

The Defendant appealed a trial court’s sentencing order finding him to be a sexually violent predator (SVP).

The Basic Facts:

The Defendant broke into the victim’s house and sexually assaulted her. He pled guilty to first-degree sexual assault—crime of violence; second-degree burglary; and second-degree assault.

The relevant analysis of the case appears at the end of the decision:

The Defendant contended that the trial court judge abused its discretion by classifying him as an Sexually Violent Predator (SVP), contrary to the sexual assault risk assessment screening instrument’s (RASI) recommendation.

The SVP Designation and The RASI The Risk Assessment Screening Instrument’s Recommendation – The Sexual Assault Risk Assessment Screening Instrument.

The Defendant contended that the judge abused its discretion by classifying him as an SVP:

(1) contrary to the RASI’s recommendation,

and

(2) without record support for its findings.

A sexually violent predator is an offender:

(1) who is eighteen years of age or older when the offense was committed;

(2) who has been convicted of sexual assault under section 18-3-402, C.R.S. 2010;

(3) whose victim was a stranger or someone the offender promoted a relationship with for the purpose of victimizing him or her;

and

(4) who, based on the RASI’s results, is likely to subsequently commit another sexual offense against a stranger or a person with whom the offender promoted a relationship primarily for the purpose of sexual victimization. § 18- 3-414.5(1)(a), C.R.S.

The RASI’s Recommendation

The Colorado Appellate Court first rejected the argument that a district (lower) court lacks the authority to disagree with the RASI’s recommendation in determining whether defendant qualifies as an SVP.

“As relevant here, the fourth statutory criterion provides that an SVP is someone “[w]ho, based upon the results of a risk assessment screening instrument developed by the division of criminal justice in consultation with and approved by the sex offender management board [SOMB] . . . is likely to subsequently commit” certain sexual assault crimes. § 18-3-414.5(1)(a)(IV), C.R.S. 2010.”

In Colorado, when a defendant is convicted of certain sexual assault crimes:

“the probation department shall, in coordination with the evaluator completing the mental health sex offense specific evaluation, complete the sexually violent predator risk assessment, unless the evaluation and assessment have been completed within the six months prior to the conviction or the defendant has been previously designated a sexually violent predator.

Based on the results of the assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. If the defendant is found to be a sexually violent predator, the defendant shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and shall be subject to community notification pursuant to part 9 of article 13 of title 16, C.R.S.” § 18-3-414.5(2), C.R.S. 2010 (emphasis added).

Court Must Make Findings Based On RASI

The Court decided that Section 18-3-414.5 required only that the court make findings “based upon” the RASI’s results and that the statute’s plain language indicates that the court is not bound by the RASI’s results in determining whether a defendant qualifies as an SVP under section 18-3-414.5(1)(a)(IV).

It indicates that a district court must consider the RASI’s results in determining whether defendant is an SVP.

No Evidenciary Hearing Is Required

§ 18-3-414.5(2) does not require an evidentiary hearing on whether offender is an SVP; the statute requires court to useRASI results to make findings whether offender is an SVP);

Court Based Decision on Colorado Lifetime Supervision Act Language

The board shall consult on, approve, and revise as necessary the risk assessment screening instrument developed by the division of criminal justice to assist the sentencing court in determining the likelihood that an offender would commit one or more of the offenses specified in section 18-3-414.5(1)(a)(II), C.R.S., under the circumstances described in section 18-3-414.5(1)(a)(III), C.R.S. § 16-11.7-103(4)(c.5)

The meaning of the phrase “to assist the sentencing court” is clear and unambiguous. It indicates that the General Assembly intended that the RASI be used to aid the court in determining whether a defendant qualifies as an SVP.

The Colorado Standards and Guidelines for the Treatment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders2.000 use the term “assist,” bolstered the court’s conclusion that the RASI serves to aid the court in making its SVP determination.

Section 2.000 provides, “Evaluations are conducted to identify levels of risk and specific risk factors that require attention in treatment and supervision, and to assist the court in determining the most appropriate sentence for offenders.” In addition, the Colorado Sex Offender Management Board’s RASI handbook states, “The legal determination of sexually violent predator is at the discretion of the presiding judge and/or the parole board.”

They therefore concluded that the RASI aids the court in determining whether a defendant meets section 18-3- 414.5(1)(a)(IV)’s criterion, but the court is not bound by its recommendation.

To hold otherwise would effectively cede the court’s sentencing discretion to the evaluator and render the evaluator’s determination essentially unreviewable. Without a clear and unambiguous indication that the General Assembly intended such an unusual result, we will not read in such an intent.

The Case Facts The Judge Used To Make The Sexually Violent Predator (SVP)

The Analysis Leading To The SVP Designation and Conclusion

Here, the court made detailed factual findings supporting its determination that defendant met section 18-3-414.5(1)(a)(IV)’s criterion. It conducted a hearing and questioned the evaluator extensively about the recommendation.

The court disagreed with the evaluator’s scoring approach in calculating defendant’s level of denial, deviancy, and motivation. In making its finding, the court considered the RASI, which stated that defendant scored:

•Between the 62nd and 88th percentile of the risk category for male sex offenders on the STATIC 99, placing him in the moderate-high recidivism range;

•In the medium to high risk range in his motivation for treatment;

•In the medium to high risk range concerning his overall control and intervention because he lacked “understanding of his deviant cycle, his triggers, [and] his thinking errors and . . . has few replacement behaviors”;

•In the medium to high risk range on the social interest scale because he neither admitted nor denied committing the sexual assault; and

•In the medium to high risk range on the lifestyle characteristics score because he had Generalized Anxiety Disorder, Posttraumatic Stress Disorder, Depressive Personality Traits, obsessive compulsive personality features,and negativistic and passive-aggressive personality features.

According to the presentence investigation report, which the court had before it, defendant stated, “I took the plea to try and save face with her family and with mine. I realized I can’t do that much time just to save face, to make people happy.”

During the sex offense specific evaluation, defendant stated, “I don’t remember anything and I wish I could . . . I feel horrible what happened to her and I feel like the scum of the earth if I done that to her but I don’t remember it.” Although the evaluator recommended that defendant attend and complete the DOC’s sex offense treatment program, his report concluded that defendant did not qualify as an SVP. In disagreeing with the recommendation, the court noted that defendant:

•Stated he enjoyed the adrenaline rush from breaking into homes;

•Committed a violent and deviant crime;

•Attempted to deny the crime when initially interviewed by law enforcement;

•Claimed he did not remember assaulting the victim; and

•Repeatedly attempted to withdraw his guilty plea and delay sentencing.

The Court’s Reasoning And Findings

Thus, the court determined that defendant did not admit culpability, exhibited poor sexual behavior control, and was not motivated to obtain treatment. According to the SOMB checklist, denial and motivation to obtain treatment are important factors in assessing the risk that a defendant will reoffend. The court therefore concluded that he was an SVP.