SUMMARY

September 3, 2020

2020COA132

No. 18CA0224, People v. Ehlebracht — Criminal Law —

Sentencing — Colorado Sex Offender Lifetime Supervision Act 

of 1998 — Indeterminate Sentence — Probation; Constitutional 

Law — Fifth Amendment — Double Jeopardy

A division of the court of appeals decides two issues of first 

impression. First, distinguishing Allman v. People, 2019 CO 78, the 

division holds that a sentence to prison on one count followed by a 

sentence to probation under the Sex Offender Lifetime Supervision 

Act for a sex offense in the same case is legal. Second, applying the 

Colorado Supreme Court’s reasoning in Waddell v. People, 2020 CO 

39, and Yeadon v. People, 2020 CO 38, holds that a sentence that 

fails to include statutorily required sex offender, special advocate, 

and crime against a child surcharges is illegal, and therefore a trial 

court may impose those surcharges after initial sentencing without 

violating a defendant’s right to be free from double jeopardy. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA132

Court of Appeals No. 18CA0224

Boulder County District Court No. 16CR2030

Honorable Bruce Langer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Daniel Ehlebracht,

Defendant-Appellant.

ORDERS AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE J. JONES

Welling and Gomez, JJ., concur

Announced September 3, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Christopher Daniel Ehlebracht, pleaded guilty to 

first degree assault and sexual assault on a child. The district 

court sentenced him pursuant to a stipulation in the plea 

agreement to twenty years in prison, to be followed by ten years to 

life on probation. Ehlebracht challenges the district court’s orders 

designating him a sexually violent predator (SVP) and imposing 

statutory surcharges after his sentencing. We affirm both the SVP 

designation and surcharge orders, and we remand the case for 

further proceedings. 

¶ 2 After Ehlebracht appealed, the supreme court decided Allman 

v. People, 2019 CO 78, ¶ 40, holding that, under the general 

probation statutes, a court may not sentence a defendant to both 

prison and probation in a multicount case. That development 

caused us to question whether Ehlebracht’s consecutive sentences 

to both prison and probation are legal. So, nostra sponte, we 

ordered the parties to file supplemental briefs addressing whether 

the holding of Allman applies to a consecutive probationary 

sentence, like Ehlebracht’s, imposed under section 18-1.3-

1004(2)(a), C.R.S. 2019, of the Sex Offender Lifetime Supervision 

Act (SOLSA). The parties contend, and we agree, that because 
2

Ehlebracht’s probationary sentence was imposed under SOLSA, a 

unique sentencing scheme emphasizing sex offender specific 

objectives, Allman doesn’t apply, and Ehlebracht’s consecutive 

sentences to prison and probation are authorized by law.

I. Background

¶ 3 Twenty-nine-year-old Ehlebracht met the fourteen-year-old 

victim on a social media application and then took her to his 

apartment, where he gave her alcohol and sexually assaulted her. 

The People charged him with one count each of sexual assault on a 

child with force, enticement of a child, and contributing to the 

delinquency of a minor. The People’s complaint also charged 

Ehlebracht with a sentence enhancer as a habitual sexual offender 

against children. 

¶ 4 Ehlebracht pleaded guilty to added counts of first degree 

assault and sexual assault on a child without the use of force, in 

return for which the prosecution dismissed the four original 

charges. The plea agreement stipulated that Ehlebracht would 

receive a twenty-year prison sentence, followed by five years of 

parole, for the assault conviction, and a ten-years-to-life probation 

sentence for the sexual assault on a child conviction, to be served 
3

consecutively to the prison sentence but concurrently with the 

parole component of the prison sentence. At the sentencing 

hearing, the court sentenced Ehlebracht in accordance with the 

plea agreement and designated him an SVP pursuant to section 18-

3-414.5, C.R.S. 2019. 

II. Allman’s Prohibition of Consecutive Prison and Probation 

Sentences Does Not Apply to Indeterminate Probationary Sentences 

Imposed Under SOLSA

¶ 5 In Allman, the supreme court, interpreting the general 

probation statutes — sections 18-1.3-202 and 18-1.3-203, C.R.S. 

2019 — held that “when a court sentences a defendant for multiple 

offenses in the same case, it may not impose imprisonment for 

certain offenses and probation for others.” Allman, ¶ 40. The 

sentences at issue were consecutive sentences to prison and 

probation. Id. at ¶ 6.

¶ 6 The district court in this case likewise sentenced Ehlebracht to 

consecutive prison and probation terms. Before we address 

Ehlebracht’s contentions regarding his SVP designation and the 

imposition of surcharges after his sentencing hearing, we address 

whether the holding in Allman applies to Ehlebracht’s consecutive 

sentences to prison and probation. We do so because if these 
4

consecutive sentences are illegal, the district court must, at the very 

least, resentence Ehlebracht, rendering his challenges to his 

current sentence moot. (Because we conclude that the sentences 

are legal, we don’t need to determine whether the plea agreement 

would have to be, or could be, set aside if the agreed upon sentence 

was illegal.) 

A. Standard of Review

¶ 7 We review de novo whether a trial court can impose a specific 

sentence because that question turns on statutory interpretation. 

Id. at ¶ 29. 

B. The Allman Decision

¶ 8 Allman involved an offender who had been convicted of seven 

counts of identity theft, two counts of forgery, and one count each 

of attempted identity theft, aggravated motor vehicle theft, and theft 

from an at-risk elder. For all but one of the forgery counts, the 

district court imposed an aggregate sentence of fifteen years in 

prison, followed by five years of parole. As for that one forgery 

count, the court imposed a sentence of ten years of probation, to be 

served consecutively to the prison sentence but concurrently with 

the parole component of the prison sentence. Id. at ¶ 1. Allman 
5

challenged the district court’s authority to impose both prison and 

probation sentences in a multicount case. Id. at ¶ 28.

¶ 9 The court began by observing that a trial court exercises 

discretion in sentencing only to the extent allowed by statute; so the 

operative question was whether the applicable probation statutes 

allowed the trial court to impose sentences to both prison and 

probation. Id. at ¶ 30. “[L]ooking at the plain language of the 

probation scheme as a whole and the practical consequences of 

imposing sentences to both imprisonment and probation,” the court 

concluded that the sentences in that case were not authorized by 

law. Id. at ¶ 32. It did so in large part based on the following 

reading of sections 18-1.3-202 and 18-1.3-203:

 The language of section 18-1.3-203(1) gives the district 

court “discretion to grant a defendant probation, ‘unless, 

having regard to the nature and circumstances of the 

offense and to the history and character of the 

defendant,’ it determines that ‘imprisonment is the more 

appropriate sentence for the protection of the public.’” 

Allman, ¶ 33 (quoting § 18-1.3-203(1)). Thus, “the 

determination that probation is an appropriate sentence 
6

for a defendant necessarily requires a concordant 

determination that imprisonment is not appropriate.” Id. 

And because the statute requires the district court to 

make a choice between prison and probation, the 

legislature must have intended that the court choose 

only one or the other. Id. at ¶ 34. 

 Allowing a court to impose a period of probation to begin 

upon release from prison would ignore the fact that the 

legislature determined the proper length of postincarceration supervision when it crafted the mandatory 

parole scheme. Id. at ¶ 35. 

 The legislature limited the confinement period applicable 

to a probationary sentence to ninety days in jail, or up to 

two years for work release. § 18-1.3-202(1)(a). This 

limitation is “clear direction that the legislature never 

intended for the court to have discretion to impose a 

period of confinement longer than ninety days (or up to 

two years with work release) when also sentencing a 

defendant to probation.” Allman, ¶ 37. 
7

 Section 18-1.3-202(1)(a) mandates that “[i]f the court 

chooses to grant the defendant probation, the order 

placing the defendant on probation shall take effect 

upon entry.” (Emphasis added.) The legislature’s use of 

the mandatory term “shall” indicates that it didn’t intend 

for a probationary sentence to be imposed following a 

term of incarceration. Allman, ¶ 38.

¶ 10 In addition to the language of the statutes, the court found 

further support for its conclusion based on the practical 

considerations of an offender simultaneously serving parole and 

probation on release from prison. The court noted that an offender 

who is released to parole following a prison sentence is supervised 

by the executive branch. But when the same offender is also 

sentenced to a consecutive probation sentence, he is 

simultaneously supervised by the judicial branch. The court found 

that the legislature couldn’t have intended for an offender to be 

supervised by two different branches of government, with possibly 

competing terms and conditions, at the same time.

¶ 11 For those reasons, the court concluded that “[b]ecause the 

probation statute does not grant the courts the power to impose 
8

sentences to both imprisonment and probation in a multi-count 

case, . . . when a court sentences a defendant for multiple offenses 

in the same case, it may not impose imprisonment for some 

offenses and probation for others.” Id. at ¶¶ 28, 40. 

C. Analysis

¶ 12 The district court sentenced Ehlebracht to probation for his 

sex offense conviction for an indeterminate term of ten years to life 

pursuant to section 18-1.3-1004(2)(a) of SOLSA. The sentencing 

scheme applicable to sex offenders under SOLSA differs from the 

general sentencing scheme in that, among other things, it 

emphasizes treatment and supervision for sex offenders. See § 18-

1.3-1001, C.R.S. 2019 (“The general assembly . . . declares that a 

program under which sex offenders may receive treatment and 

supervision for the rest of their lives, if necessary, is necessary for 

the safety, health, and welfare of the state.”). 

¶ 13 In their supplemental briefs, the parties assert, and we agree, 

that because probation imposed under SOLSA differs from the 

general probation scheme in both its nature and scope, the analysis 

in Allman about whether the general probation statute permits both 
9

prison and probation sentences in a single case doesn’t apply to 

Ehlebracht’s sentences. 

1. General Concerns

¶ 14 We begin by noting that the Allman court’s analysis was based 

largely on the language in the general probation statutes — sections 

18-1.3-202 and 18-1.3-203. See Allman, ¶¶ 33-38. But SOLSA’s 

sentencing scheme, including the provisions addressing probation, 

is tailored specifically to sex offenders and differs markedly from the 

general sentencing scheme for non-sex offenders. See People v. 

Jenkins, 2013 COA 76, ¶¶ 14-16. The most notable difference is 

that sentences under SOLSA are indeterminate, extending up to the 

offender’s natural life. § 18-1.3-1004(1), (2). And, even if an 

offender is sentenced to incarceration and released on parole, the 

parole period that attaches is also for an indeterminate period, and 

the sentence to incarceration is not deemed discharged until the 

parole board discharges the offender from parole. § 18-1.3-

1006(1)(b), C.R.S. 2019. 

¶ 15 Further, unlike the general probation statutes, SOLSA 

requires every sex offender, whether sentenced to probation or 

released on parole after serving a prison sentence, to participate in 
10

Sex Offender Intensive Supervision programs, which provide the 

highest level of supervision. §§ 18-1.3-1005(2), 18-1.3-1007(2), 

C.R.S. 2019.

¶ 16 And, unlike section 18-1.3-203(1), the plain language of 

section 18-1.3-1004(2)(a) doesn’t require a finding that prison is not 

an appropriate sentence. Rather, consistent with the idea that sex 

offenders should receive treatment, section 18-1.3-1004(2)(a) 

requires the court to consider, in addition to the factors listed in 

section 18-1.3-203, the results of the offense specific sex offender 

evaluation conducted pursuant to section 16-11.7-104, C.R.S. 

2019.1 That evaluation is designed to identify treatment options 

and consider how best to manage or monitor behavior to protect 

victims or potential victims. Thus, the court’s focus when imposing 

a probationary sentence under SOLSA is whether the sex offender’s 

treatment needs can best be addressed in the probation setting, not 

whether incarceration is necessary to protect the public. 

 

1 Though section 18-1.3-1004(1)(2)(a), C.R.S. 2019, includes this 

cross-reference to section 18-1.3-203, C.R.S. 2019, that crossreference is a limited one: it incorporates factors the court should 

consider when deciding whether to order probation under SOLSA. 

It isn’t a wholesale incorporation of the general probation statutes. 
11

¶ 17 Moreover, if Allman’s limitation on imposing sentences to both 

probation and prison were carried over into sex offender sentencing, 

the court, in certain situations, would be unable to effectuate the 

legislative intent of SOLSA — namely, providing the most 

appropriate treatment for sex offenders. For example, if, as is often 

the case, an offender is convicted of both a sex offense and non-sex 

offense in a single case, the court may determine that Sex Offender 

Intensive Supervision Probation (SOISP) is appropriate to address 

the offender’s treatment needs for the sex offense, but may also 

determine that a prison sentence is either warranted or required for 

the non-sex offense. Under Allman, the court would be required to 

impose either prison or probation on both counts, thus limiting the 

court’s ability to craft a sentence that is appropriate for the non-sex 

offense and that most effectively serves the offender’s treatment 

needs. Consequently, applying Allman’s case-specific approach 

would interfere with the offense specific focus that the legislature 

mandated in SOLSA.

2. Statutory Concerns

¶ 18 We also conclude that the provisions of the general probation 

statutes that the Allman court found evidenced the legislature’s 
12

intent to prohibit sentences to both prison and probation in a single 

case don’t carry over to SOLSA, for three reasons. 

¶ 19 First, unlike a general probationary sentence imposed 

following a determinate prison sentence, the imposition of an SOISP 

sentence will not extend the length of post-incarceration 

supervision. An offender sentenced under SOLSA, regardless of 

whether the sentence is to prison or to probation, is always subject 

to potential lifetime supervision. §§ 18-1.3-1004(2)(a), 18-1.3-

1005(1)(b). Thus, there is no difference in the length of postincarceration supervision if a sex offender convicted of both a sex 

offense and a non-sex offense is sentenced to prison for both 

offenses, or, instead, is sentenced to parole for the sex offense and 

prison for the non-sex offense. 

¶ 20 Second, the cap on confinement that may be imposed in 

conjunction with a probationary sentence under section 18-1.3-

202(1)(a) isn’t present in section 18-1.3-1004(2). Instead, section 

18-1.3-1004(2)(b) authorizes the court to order, as a condition of 

probation, that a sex offender be placed in a residential community 

corrections program “for a minimum period specified by the court.”
13

¶ 21 Third, although section 18-1.3-202(1)(a) requires that the 

order to probation take effect when entered, there is no 

corresponding requirement in section 18-1.3-1004(2)(a). 

3. Dual Supervision Concerns

¶ 22 The Allman court also expressed concern that prison and 

probation sentences in the same case would lead to an offender, on 

release from prison onto mandatory parole, being subject to dual 

supervision by both parole and probation. We note, however, that 

dual supervision scenarios can also arise when a court sentences 

an offender to probation in one case but makes the sentence 

consecutive to a prison sentence in a separate case. And, while 

dual supervision would obviously arise when, as in this case, an 

offender is sentenced to prison for a non-sex offense and to SOISP 

probation for a sex offense, given that the conditions of SOISP are 

so much more restrictive than traditional probation and parole, we 

find it unlikely that conflicts in supervision would arise. In fact, 

SOLSA requires collaboration between the Department of 

Corrections (part of the executive branch), Judicial Department, 

and Parole Board to develop criteria governing when an offender can 

be released from indeterminate supervision. § 18-1.3-1009(1), 
14

C.R.S. 2019. And any person sentenced to probation under SOLSA 

must not only comply with the conditions imposed by standard 

probation but must also follow the more restrictive provisions of 

SOISP. §§ 18-1.3-1007, 18-1.3-1008(1), C.R.S. 2019. 

¶ 23 For these reasons, we conclude that Allman’s reasoning for 

prohibiting both prison and probation sentences in a single case 

doesn’t apply to sentences imposed under SOLSA. Therefore, 

Ehlebracht’s consecutive prison and probation sentences are 

authorized by statute and not illegal.

III. SVP Designation

¶ 24 Turning next to Ehlebracht’s challenge to the court’s order 

designating him an SVP, he contends that the district court failed to 

make case specific factual findings to justify its conclusion that he 

established the relationship with the victim primarily for sexual 

victimization. More specifically, he asserts that the court’s 

conclusion was based on an inference rather than factual findings 

and that, to the extent the court relied on his prior convictions to 

justify its conclusion, its finding that he had two prior convictions 

for sex offenses involving children was erroneous. We don’t see any 

basis to reverse.
15

A. Standard of Review

¶ 25 We review the district court’s SVP designation — a mixed 

question of fact and law — by deferring to the court’s factual

findings if they have record support and by reviewing de novo the 

court’s legal conclusion that an offender should be designated as an 

SVP. Allen v. People, 2013 CO 44, ¶ 4.

B. Applicable Law

¶ 26 An SVP is an offender who (1) is eighteen years of age or older 

as of the date of the offense; (2) has been convicted on or after July 

1, 1999, of an enumerated sex offense, including sexual assault on 

a child in violation of section 18-3-405, C.R.S. 2019; (3) committed 

the offense against a victim who was a stranger or was a person 

with whom the offender established or promoted a relationship 

primarily for the purpose of sexual victimization; and (4) is likely, as 

determined by a Risk Assessment Screening Instrument, to commit 

another listed offense under the same or similar circumstances. § 

18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6.

¶ 27 The statute requires the probation department, in coordination 

with an evaluator, to complete the SVP Assessment Screening 

Instrument (SVPASI) and make a recommendation regarding 
16

whether the defendant meets the SVP criteria. § 18-3-414.5(2). 

Then, “[b]ased 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.” Id. 

¶ 28 Because Ehlebracht challenges only the court’s finding that he 

established a relationship with the victim for the purpose of sexual 

victimization, we limit our analysis to whether the district court 

properly found that he satisfied that requirement. 

¶ 29 An offender “‘establishe[s] a relationship’ under the 

relationship criterion of the SVP statute where he create[s], start[s], 

or beg[ins] the relationship primarily for the purpose of sexual 

victimization.” People v. Gallegos, 2013 CO 45, ¶ 11. The “use of 

the word ‘primarily’ indicates that [the legislature] did not intend for 

a trial court’s SVP designation to hinge on a finding that the 

offender specifically intended to establish or promote the 

relationship for the purposes of sexual victimization.” Candelaria v. 

People, 2013 CO 47, ¶ 15. 

C. Analysis

¶ 30 The evaluator who conducted the SVPASI concluded that 

Ehlebracht met the statutory criteria to be designated an SVP. 
17

With respect to the relationship criterion, the evaluator found that 

Ehlebracht established the relationship with the victim primarily for 

the purpose of sexual victimization. 

¶ 31 At the sentencing hearing, Ehlebracht challenged the 

evaluator’s finding that he established the relationship with the 

victim primarily for sexual victimization. He argued that the social 

media application on which he met the victim was just a platform to 

post anonymously and communicate with people, not a dating 

application, and that their communication on the application wasn’t 

sexual in nature. 

¶ 32 In addressing the SVP finding, the district court said, 

I have reviewed the assessment that was 

done in this case. Certainly the assessment 

finds that you meet the criteria for sexually 

violent predator status. The sticking point I 

guess in terms of your position has to do with 

the relationship prong if you will. The 

assessment deemed that you meet the criteria 

for establishes a relationship. 

In this case the facts are that having two 

prior convictions for sex offenses involving 

children you engaged in a relationship with 

this young woman on this social – what’s the 

word I’m looking for – social media app. And I 

think it’s a very reasonable inference that you 

did that with – for the purpose of creating a 

relationship that would lead to sexual 

victimization. 
18

¶ 33 Ehlebracht argues that the district court failed to make 

sufficient specific findings of fact to support its conclusion that he 

established the relationship with the victim primarily for sexual 

victimization. We disagree. 

¶ 34 While the court’s findings don’t detail the events that gave rise 

to the offense, the court clearly based its conclusion on the facts of 

this case when it said, “In this case the facts are that having two 

prior convictions for sex offenses involving children you engaged in 

a relationship with this young woman on this . . . social media app.” 

The facts of this case are more fully described in the arrest warrant 

affidavit and the presentence investigation report. Ehlebracht was 

twenty-nine years old when he met the fourteen-year-old victim on 

a social media application. During their online conversation, the 

victim told Ehlebracht she was fifteen, and he responded, “That’s 

not bad if as long as you don’t mind I’m 22.” He then convinced her 

to go with him to his apartment late at night to drink and get high 

but told her to try and look as old as she could so his roommates 

wouldn’t get suspicious. He picked her up near her home, drove 

her to his apartment, gave her alcohol, and sexually assaulted her. 

These facts amply support the court’s finding that Ehlebracht 
19

established the relationship with the victim primarily for the 

purpose of sexual victimization. See id. at ¶ 19. 

¶ 35 To the extent Ehlebracht takes issue with the court’s 

description of his prior convictions as both being sex offenses that 

involved children, we agree that the court incorrectly characterized 

those offenses because only one of his prior convictions was for 

sexual assault on a child. But in addition to listing a 2010 felony 

conviction for attempted sexual assault on a child, the presentence 

investigation report also listed two misdemeanor convictions with 

underlying factual bases involving Ehlebracht having sex with a 

minor he met on MySpace (a social media site). Thus, since all of 

Ehlebracht’s prior convictions involved him having sex with minors, 

we conclude that the court’s technically erroneous description of 

Ehlebracht’s prior convictions doesn’t undermine its conclusion 

that he established the relationship with the victim primarily for 

sexual victimization. 

¶ 36 Lastly, we reject Ehlebracht’s contention that the district court 

erred by “infer[ring]” that he created the relationship for the 

purpose of sexual victimization without basing its finding on 

specific facts of this case. Rarely will an offender admit that he 
20

established or promoted a relationship primarily for sexual 

victimization. In this case, viewing the court’s statement in context, 

we conclude that the court’s use of the word “inference” merely 

conveyed its conclusion that Ehlebracht established the 

relationship with the victim primarily for sexual victimization. See

Merriam-Webster Dictionary, https://perma.cc/X3M3-NUSQ 

(defining “inference” as “a conclusion or opinion that is formed 

because of known facts or evidence”). Certainly one reason a 

twenty-nine-year-old man would ask a fifteen-year-old girl he met 

online to come to his apartment to drink alcohol and get high would 

be to sexually victimize her. 

¶ 37 In sum, we won’t disturb the court’s SVP determination.

IV. Late Imposed Surcharges Do Not Violate Double Jeopardy

¶ 38 Ehlebracht also contends that the district court violated his 

right to be free from double jeopardy by imposing the sex offender, 

special advocate, and crime against a child surcharges after his 

sentencing hearing. Again, we disagree. 

A. Standard of Review and Applicable Law

¶ 39 Whether the district court violated Ehlebracht’s right to be free 

from double jeopardy hinges on the legality of the sentences 
21

imposed in open court. Waddell v. People, 2020 CO 39, ¶ 10. We 

review de novo whether the sentences imposed at the sentencing 

hearing are authorized by law. See Veith v. People, 2017 CO 19, ¶

12.

¶ 40 Under some circumstances, increasing a defendant’s 

punishment after a lawful sentence has been imposed and the 

defendant begins serving it “violates the double jeopardy protection 

against multiple punishments for the same offense.” Romero v. 

People, 179 P.3d 984, 989 (Colo. 2007). The protection against 

double jeopardy, however, doesn’t preclude the correction of a 

sentence that wasn’t authorized by law when it was imposed. 

Yeadon v. People, 2020 CO 38, ¶ 9. 

¶ 41 A sentence is illegal, or not authorized by law, when it is 

inconsistent with the statutory scheme created by the legislature. 

People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005). 

B. Analysis

¶ 42 When the parties submitted their initial briefs in this case, 

divisions of this court were split on the question whether a 

particular surcharge — the drug offender surcharge — was 

mandatory, and whether the district court could legally impose it 
22

after failing to impose it at the sentencing hearing. But the 

supreme court, in Waddell and Yeadon, subsequently resolved that 

dispute. In each case, the court held that, because the drug 

offender surcharge is statutorily required, the original sentence 

without the surcharge was illegal and the imposition of such 

surcharge after sentencing didn’t violate the offender’s right to be 

free from double jeopardy. Waddell, ¶ 20; Yeadon, ¶ 13. 

¶ 43 Ehlebracht challenges the court’s imposition of sex offender, 

crimes against a child, and special advocate surcharges after the 

sentencing hearing. While those particular surcharges weren’t at 

issue in Waddell or Yeadon, they are subject to the reasoning of 

those cases. Accordingly, whether the imposition of those 

surcharges after the sentencing hearing violated Ehlebracht’s 

double jeopardy rights turns on whether the sentence imposed 

without those surcharges was illegal. See Yeadon, ¶ 13. 

¶ 44 First, we assume, for purposes of our analysis, that those 

surcharges are punitive, and thus part of Ehlebracht’s criminal 

sentence. 

¶ 45 Turning next to the language of the sex offender and crime 

against a child statutes, both provide that each person convicted of 
23

one of the enumerated offenses “shall be required to pay a 

surcharge.” §§ 18-21-103(1), 18-24-102(1), C.R.S. 2019 (emphasis 

added). As for the special advocate surcharge statute, it provides 

that “a surcharge of one thousand three hundred dollars shall be 

levied on each criminal action resulting in a conviction” that, as 

relevant here, was based on a charge of sexual assault on a child. § 

24-4.2-104(1)(a)(II)(A), C.R.S. 2019 (emphasis added). 

¶ 46 The use of the phrases “shall be required to pay” and “shall be 

levied” in those statutes indicates that these surcharges are 

mandatory in all cases where a defendant is convicted of one of the 

enumerated crimes. See Waddell, ¶¶ 16, 22, 25; Yeadon, ¶ 11; see 

also People v. Hyde, 2017 CO 24, ¶ 28 (“The legislature’s use of the 

word ‘shall’ in a statute generally indicates its intent for the term to 

be mandatory.”). Thus, because Ehlebracht’s sentence at the 

hearing didn’t include those surcharges, it was illegal when first 

imposed. See Waddell, ¶¶ 20, 27; Yeadon, ¶ 16. Therefore, the 

sentence was subject to correction at any time under Crim. P. 35(a), 

and the court’s subsequent addition of those surcharges didn’t 

violate Ehlebracht’s double jeopardy rights. See Waddell, ¶¶ 20, 

27; see also People v. Smith, 121 P.3d 243, 251 (Colo. App. 2005) 
24

(correcting an illegal sentence doesn’t violate a defendant’s right 

against double jeopardy).

¶ 47 But that isn’t the end of the matter. The statutory provisions 

imposing each of these surcharges also contains language allowing 

the court to waive the surcharges if it finds that the offender is 

indigent or financially unable to pay all or a part of the surcharge. 

§§ 18-21-103(4); 18-24-103(3); 24-4.2-104(1)(c), C.R.S. 2019. 

Because the district court imposed the surcharges on Ehlebracht 

without giving him an opportunity to prove that he falls within one 

or more of the exemptions, we remand this case to the district court 

to afford Ehlebracht an opportunity to prove that he is entitled to a 

waiver. See Yeadon, ¶ 15.

V. Conclusion

¶ 48 Ehlebracht’s consecutive prison and probation sentences are 

legal, and the orders designating Ehlebracht an SVP and assessing 

the statutory surcharges are affirmed. The case is remanded to the 

district court with instructions to provide Ehlebracht with the 

opportunity to prove that he is entitled to a waiver of one or more of 

the surcharges. 

JUDGE WELLING and JUDGE GOMEZ concur.