SUMMARY 

June 28, 2018 

2018COA90

No. 16CA1787, People v. McCulley — Criminal Law — Sex 

Offender Registration — Petition for Removal from Registry 

A defendant who pleaded guilty to two crimes involving 

unlawful sexual behavior but later had one of those charges 

dismissed after successfully completing his deferred judgment 

petitioned the trial court for an order allowing him to discontinue 

the requirement that he register as a sex offender. The trial court 

denied the defendant’s petition because section 16-22-113(3)(c), 

C.R.S. 2017, of the Sex Offender Registration Act dictates that an 

individual who has more than one conviction for unlawful sexual 

behavior is ineligible for such an order. A division of the court of 

appeals affirms the trial court’s denial, holding, as a matter of first 

impression, that the term “conviction” as used in section 16-22-

113(3)(c) includes a successfully completed deferred judgment. In 

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. 
so concluding, the division distinguishes this case from People v. 

Perry, 252 P.3d 45 (Colo. App. 2010), which interpreted “is 

convicted” in section 16-22-113(3)(b) to exclude a successfully 

completed deferred judgment. 
COLORADO COURT OF APPEALS 2018COA90

Court of Appeals No. 16CA1787 

Larimer County District Court No. 00CR185 

Honorable Daniel J. Kaup, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Brian Keith McCulley, 

Defendant-Appellant. 

ORDER AFFIRMED 

Division I 

Opinion by JUDGE WELLING 

Taubman and Bernard, JJ., concur 

Announced June 28, 2018 

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for 

Defendant-Appellant 

 
1 

¶ 1 Section 16-22-113(3)(c), C.R.S. 2017, of the Colorado Sex 

Offender Registration Act (SORA) provides that “[a]ny adult who has 

more than one conviction . . . for unlawful sexual behavior” is not 

eligible to petition for removal from the sex offender registry. This 

case presents an issue of first impression: Does the term 

“conviction” as used in subsection 113(3)(c) of SORA include a 

successfully completed deferred judgment? Because we answer this 

question “yes,” we affirm the trial court’s order denying the petition 

to deregister. 

I. Background 

¶ 2 In 2000, the People charged the defendant, Brian Keith 

McCulley, with two counts of felony sexual assault, both of which 

were crimes involving unlawful sexual behavior. Months later, 

McCulley entered into a split plea agreement whereby he pleaded 

guilty to one count of second degree sexual assault, a class 4 felony, 

and one count of third degree sexual assault, a class 1 

misdemeanor.1 

 

1 The two counts that McCulley pleaded guilty to were separate 

criminal episodes. Although both counts involved the same victim, 
2 

¶ 3 Pursuant to the plea agreement, which the trial court 

approved, McCulley received a four-year deferred judgment on the 

felony charge and a probation sentence on the misdemeanor 

charge. The only condition of his probation sentence was that he 

comply with the terms of the deferred judgment. Under the terms 

of McCulley’s plea agreement, the trial court would dismiss the 

felony charge once McCulley complied with his deferred judgment, 

but he would stand convicted of the misdemeanor after having 

successfully completed his probation sentence. That is exactly 

what occurred. In 2004, McCulley completed his deferred 

judgment, the felony charge was dismissed, and at the same time 

he completed probation on the misdemeanor charge. 

¶ 4 As a condition of his deferred judgment, McCulley was 

required to register as a sex offender. See § 16-22-103(2)(a), C.R.S. 

2017. In 2016, McCulley filed a petition to discontinue the 

requirement that he register as a sex offender. The trial court 

denied McCulley’s petition despite the fact that he had successfully 

completed his deferred judgment. The trial court reasoned that the 

 

according to the plea, the felony occurred in February 1998, and 

the misdemeanor occurred in August 1995. 
3 

statute defines the term “conviction” to include having a deferred 

judgment, McCulley had two convictions, and an individual who 

has more than one conviction for unlawful sexual behavior is 

ineligible for an order discontinuing the registration requirement. 

II. Analysis 

¶ 5 McCulley’s sole argument on appeal is that the trial court 

erred by construing the term “conviction” under SORA to include a 

successfully completed deferred judgment. We disagree because we 

conclude that the plain language of SORA dictates that a deferred 

judgment is a “conviction” as used in section 16-22-113(3)(c). 

A. Standard of Review 

¶ 6 Our goal when interpreting a statute is to effectuate the 

General Assembly’s intent. Martin v. People, 27 P.3d 846, 851 

(Colo. 2001). To do that, we first look to the statute’s language, 

giving words and phrases their plain and ordinary meaning. People 

v. Padilla-Lopez, 2012 CO 49, ¶ 7. If the statute’s plain language 

unambiguously indicates the legislature’s intent, we apply the 

statute as written. Martin, 27 P.3d at 851. When the statute is 

ambiguous, however, we may “rely on other factors, such as 

legislative history, prior law, the consequences of a given 
4 

construction of the statute, and the end to be achieved by the 

statute, to determine the meaning of a statute.” Id.

B. Meaning of “Conviction” in Subsection 113(3)(c) 

¶ 7 A defendant who successfully completes his deferred judgment 

may petition the court for an order discontinuing the requirement 

that he register as a sex offender. § 16-22-13(1)(d).2 But that 

provision has an exception. An adult defendant is ineligible for an 

order discontinuing his registration requirement if he “has more 

than one conviction or adjudication for unlawful sexual behavior in 

this state or any other jurisdiction.” § 16-22-113(3)(c). 

¶ 8 Resolution of this appeal turns on the meaning of the word 

“conviction” in subsection 113(3)(c). It is undisputed that the felony 

charge against McCulley was dismissed when he successfully 

completed the deferred judgment, and that, as of the time of his 

petition to deregister, he stood convicted of just the misdemeanor 

 

2 In addition to successfully completing the deferred judgment, the 

defendant must not have been subsequently convicted of a crime 

involving unlawful sexual behavior and the court must not have 

issued an order continuing the requirement that the defendant 

register. § 16-22-103(1)(a), C.R.S. 2017. There is no dispute that 

McCulley did not commit a subsequent qualifying offense and that 

the court did not issue an order continuing the requirement that he 

register. 
5 

charge. So, if the term “conviction” does not include a successfully 

completed deferred judgment, McCulley would have only one 

conviction, and section 16-22-113(3)(c) would not bar the relief he 

seeks. But SORA’s plain language belies McCulley’s interpretation. 

¶ 9 SORA defines “conviction” as follows: 

As used in [SORA], unless the context 

otherwise requires: 

. . . . 

(3) “Convicted” or “conviction” means having 

received a verdict of guilty by a judge or jury, 

having pleaded guilty or nolo contendere, 

having received a disposition as a juvenile, 

having been adjudicated a juvenile delinquent, 

or having received a deferred judgment and 

sentence or a deferred adjudication. 

§ 16-22-102, C.R.S. 2017 (emphasis added). 

¶ 10 By its plain language, the term “conviction” as used in 

subsection 113(3)(c) includes having received a deferred judgment. 

See § 16-22-102(3). And there is no exception in that definition for 

a successfully completed deferred judgment. See Dubois v. 

Abrahamson, 214 P.3d 586, 588 (Colo. App. 2009) (“[T]he General 

Assembly could have drafted section 16-22-102(3) to define 

‘convicted’ as ‘having received, and failed to successfully complete, a 
6 

deferred judgment and sentence,’” but it did not.). Moreover, there 

is nothing in the language or context of the statute to suggest that 

this definition of “conviction” does not apply to subsection 113(3)(c). 

See People v. Molina, 2017 CO 7, ¶ 17 (courts must apply the 

statutory definition of terms absent clear intent to the contrary). 

¶ 11 McCulley pleaded guilty to two crimes involving unlawful 

sexual behavior. While he received, and completed, a deferred 

judgment for one of those crimes, subsection 113(3)(c) treats that 

deferred judgment in the same manner as it treats any other 

conviction. And because the statute treats them the same, 

McCulley has more than one conviction and subsection 113(3)(c) 

renders him ineligible for an order discontinuing the requirement 

that he register as a sex offender.3

 

3 In this case, McCulley’s two crimes arose from discrete criminal 

episodes. See supra n.1; see also People v. Atencio, 219 P.3d 1080, 

1081 (Colo. App. 2009) (“So long as a person has been convicted of 

more than one charge of unlawful sexual behavior, whether those 

charges were adjudicated in the same case or in separate cases is 

irrelevant: the adjudications are multiple convictions which render 

the person ineligible for relief under []section 16-22-113(1)[, C.R.S. 

2017].”). And McCulley does not contend otherwise. We express no 

opinion, however, on whether a deferred judgment arising out of the 

same criminal episode as another conviction qualifies as a separate 

“conviction” for the purposes of section 16-22-113(3)(c). 
7 

¶ 12 Relying on People v. Perry, 252 P.3d 45 (Colo. App. 2010), 

McCulley argues that the term “conviction” does not include a 

deferred judgment. In Perry, a division of this court addressed a 

different subsection of section 16-22-113(3) — namely, subsection 

(b). 252 P.3d at 47. Subsection 113(3)(b) provides that a person 

who “is convicted” of sexual assault on a child, among five other 

enumerated offenses, is ineligible for an order discounting the 

registration requirement. The division in Perry concluded that the 

term “is convicted” in that subsection does not include a 

successfully completed deferred judgment. 252 P.3d at 49. But the 

division in Perry premised its conclusion on the fact that the 

definition of “convicted” from section 16-22-102(3), which includes 

“having received a deferred judgement,” applies “unless the context 

otherwise requires.” § 16-22-102. And in Perry, such a context 

existed. 

¶ 13 To understand why Perry is distinguishable, a brief review of 

the division’s statutory analysis is helpful. Pursuant to section 16-

22-108(1)(d)(I), C.R.S. 2017, a person convicted of felony sexual 

assault “has a duty to register for the remainder of his or her 

natural life; except that, if the person receives a deferred judgment 
8 

and sentence,” he or she may petition the court pursuant to section 

16-22-113 for discontinuation of the duty to register. Based on this 

relationship between sections 16-22-108(1)(d) and 16-22-113(3)(b), 

the division in Perry observed as follows: 

If the words “is convicted” in section 16-22-

113(3)(b)(II) are understood to mean that a 

person “having received a deferred judgment” 

(under section 16-22-102(3)) only stands 

“convicted” until “the successful completion of 

the deferred judgment and sentence . . . and 

dismissal of the case” (under section 16-22-

113(1)(d)), then none of [the six subsections of 

section 16-22-113(3)(b)] is at odds with the 

plain language of section 16-22-108(1)(d)(I). 

252 P.3d at 49. In other words, if the definition of “is convicted” in 

subsection 113(3)(b) includes a successfully completed deferred 

judgment for a crime enumerated in that subsection, one could 

never obtain the relief outlined in section 16-22-108(1)(d) because 

section 16-22-113(3)(b) would always bar such relief. 252 P.3d at 

49. Thus, the Perry division concluded that the context of 

subsection 113(3)(b) requires the exclusion of a successfully 

completed deferred judgment from the definition of “is convicted,” 

holding that such an “interpretation avoid[s] the needless creation 
9 

of a statutory conflict.” Id. The division in Perry further noted that 

its interpretation 

is also the most logical because (1) it 

acknowledges that the General Assembly’s use 

of the words “is convicted” was a deliberate 

decision to speak in the present tense, rather 

than referring to persons who had been 

previously convicted of an enumerated 

disqualifying offense; and (2) it is consistent 

with precedent analyzing when, in other 

contexts, a deferred judgment constitutes a 

“conviction.” 

Id.

¶ 14 But the contextual concerns that animated the holding in 

Perry simply do not arise with respect to subsection 113(3)(c) 

because that subsection operates differently than does subsection 

113(3)(b). Subsection 113(3)(c) provides that a court may not issue 

an order discontinuing the registration requirement for an 

individual who “has more than one conviction” for unlawful sexual 

behavior. Including a deferred judgment within the meaning of 

“conviction” for that subsection in no way affects section 16-22-

108(1)(d) or any other provision of SORA. Therefore, unlike the 

situation in Perry, subsection 113(3)(c) does not provide the context 

required to depart from the statutory definition. 
10 

¶ 15 Nevertheless, McCulley argues that the word “has” in the 

phrase “has been convicted” shows that the General Assembly 

intended to speak in the present tense, and is akin to the word “is” 

relied on in Perry. According to McCulley, he was convicted of the 

felony only during the four years that he was completing his 

deferred judgment, but he no longer “has” the felony conviction 

because he successfully completed the deferred judgment. But as 

discussed above, for the purposes of subsection 113(3)(c), 

conviction means “having received a deferred judgment.” § 16-22-

102(3). Successfully completing his deferred judgment does not 

change the fact that McCulley “received a deferred judgment” in 

connection with his guilty plea to the felony. Id. So, even though 

there may be some situations where a deferred judgment is not 

treated like a conviction, see, e.g., M.T. v. People, 275 P.3d 661, 663 

(Colo. App. 2010) (“[A] defendant who enters but later withdraws a 

guilty plea in a deferred judgment case once was convicted,” but is 

no longer after withdrawing his plea), aff’d, 2012 CO 11, subsection 

113(3)(c) treats a prior deferred judgment in the same manner it 

would treat a conviction resulting from any other basis. And we are 

not persuaded that the context requires otherwise. 
11 

III. Conclusion 

¶ 16 The trial court’s order denying McCulley’s petition for 

discontinuation of the requirement that he register as a sex offender 

is affirmed. 

JUDGE TAUBMAN and JUDGE BERNARD concur.