COLORADO COURT OF APPEALS 2017COA39 

Court of Appeals No. 14CA0245 

Arapahoe County District Court No. 05CR1571 

Honorable J. Mark Hannen, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Homaidan Al-Turki, 

Defendant-Appellant. 

ORDER AFFIRMED 

Division IV 

Opinion by JUDGE HAWTHORNE 

Román, J., concurs 

Harris, J., dissents 

Announced April 6, 2017 

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Davis Graham & Stubbs, LLP, Michael J. Gallagher, Chad D. Williams, Kyle W. 

Brenton, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 This case presents only one question: Is a defendant who is 

subject to section 18-1.3-406(1)(b), C.R.S. 2016, because he or she 

committed a crime of violence and a sex offense under the Colorado 

Sex Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001 

to -1012, C.R.S. 2016, eligible to have his or her sentence to the 

custody of the Department of Corrections for an indeterminate term 

of incarceration modified to probation under section 18-1.3-

406(1)(a)? Based on our supreme court’s opinion in Chavez v. 

People, 2015 CO 62, we conclude that the answer to this question is 

no. So, we affirm the district court’s order denying defendant 

Homaidan Al-Turki’s motion to reduce his sentence under Crim. P. 

35(b). 

I. Procedural History 

¶ 2 As relevant here, Al-Turki was convicted under the LSA of 

twelve counts of unlawful sexual contact through use of force, 

intimidation, or threat, a class 4 felony as defined by section 18-3-

404(2)(b), C.R.S. 2016. The district court ultimately sentenced him 

to indeterminate prison terms of six years to life on the unlawful 

sexual contact convictions. The prosecution appealed this sentence 
2 

and a division of this court affirmed. See People v. Al-Turki, (Colo. 

App. No. 11CA1247, Aug. 9, 2012) (not published pursuant to 

C.A.R. 35(f)). Al-Turki renewed his previously filed Rule 35(b) 

motion for reduction of sentence, arguing that he was eligible for a 

probationary sentence under section 18-1.3-406(1)(a). After a 

three-day evidentiary hearing, the district court denied the motion, 

concluding that it did not have authority to modify Al-Turki’s 

sentence because he was not eligible for probation under section 

18-1.3-406(1)(a). 

II. Sentence Modification 

¶ 3 Al-Turki contends that he is eligible to have his indeterminate 

term of incarceration sentence, which was imposed under the LSA 

and the crime-of-violence statute, section 18-1.3-406(1)(b), modified 

to probation under section 18-1.3-406(1)(a). We disagree. 

¶ 4 We review statutory interpretation questions de novo. People 

v. Bohn, 2015 COA 178, ¶ 9. 

¶ 5 The mandatory sentencing for violent crimes statute, section 

18-1.3-406(1), differentiates between crimes of violence that involve 

sex offenses and those that do not involve sex offenses. Section 18-

1.3-406(1)(a) governs crimes of violence generally (i.e. non-sex 
3 

offenses), and allows the court to modify a sentence for a term of 

incarceration to probation in limited circumstances. § 18-1.3-

406(1)(a) (“[T]he court, in a case which it considers to be exceptional 

and to involve unusual and extenuating circumstances, may 

thereupon modify the sentence . . . [and] [s]uch modification may 

include probation if the person is otherwise eligible therefor.”). 

¶ 6 Section 18-1.3-406(1)(b) governs crimes of violence involving 

sex offenses and contains no similar “modification” language. And, 

it provides that defendants convicted of a sex offense that is a crime 

of violence shall be sentenced to an indeterminate term of 

incarceration. Id. (“Notwithstanding the provisions of paragraph (a) 

of this subsection (1), any person convicted of a sex offense, as 

defined in section 18-1.3-1003(5), committed on or after November 

1, 1998, that constitutes a crime of violence shall be sentenced to 

the department of corrections for an indeterminate term of 

incarceration . . . .”). 

¶ 7 Al-Turki argues that his indeterminate term of incarceration 

sentence is governed by both section 18-1.3-406(1)(a) and (1)(b). He 

reads section 18-1.3-406(1)(a) as governing all crimes of violence, 

even those that are sex offenses. To do so, he interprets the phrase 
4 

in the first sentence of section 18-1.3-406(1)(b), “[n]otwithstanding 

the provisions of paragraph [(1)](a),” as meaning subsection (1)(b) is 

a limited exception to subsection (1)(a). He therefore reads section 

18-1.3-406(1)(b) to only modify subsection (1)(a) where the two 

sections conflict, namely, as to the directive in subsection (1)(a) that 

the sentencing court impose a determinant aggravated sentence. 

¶ 8 But, our supreme court, in Chavez, interpreted section 18-1.3-

406(1)(b) and concluded that a crime-of-violence sex offender is not 

eligible for probation.1 There, the defendant was convicted of a per 

se crime of violence sex offense that required the sentencing court 

to impose a sentence “in accordance with” the crime-of-violence 

scheme. § 18-3-405.3(4), C.R.S. 2016. The defendant argued that 

he was probation-eligible because he was subject to the LSA and it 

allowed for probation. See § 18-1.3-1004(2), C.R.S. 2016. 

¶ 9 The supreme court held that the defendant was not 

probation-eligible because, even though he was subject to the LSA, 

which allows for probation, he was also subject to the mandatory 

 

1 In its opinion, the court quotes the “relevant part” of section 18-

1.3-406(1)(b), C.R.S. 2016, without including the “notwithstanding” 

clause, and otherwise does not mention it. Chavez v. People, 2015 

CO 62, ¶ 13. 
5 

crime-of-violence enhancement, and “[t]his forecloses probation.” 

Chavez, ¶ 19. The court explained that the LSA required the 

defendant to serve an indeterminate sentence, the crime-of-violence 

statute required that he serve it in prison, and the LSA did not 

change that. Id. The court also explained that because the 

defendant “committed a crime of violence and a sex offense, [the 

defendant] is subject to section 406(1)(b), not the general, non-sexoffense section of 406(1)(a).” Id. at ¶ 20. It emphasized that section 

18-1.3-406(1)(b) requires that defendants convicted of violent sexual 

offenses “shall be sentenced to the department of corrections for an 

indeterminate term of incarceration.” Id. Thus, the defendant 

“[could] not be eligible for probation because ‘incarceration’ means 

‘imprisonment, confinement in a jail or penitentiary,’ . . . and 

‘“shall” indicates that [a] term is mandatory.’” Id. (citations 

omitted). 

¶ 10 Like the defendant in Chavez, Al-Turki was convicted of a per 

se crime of violence sex offense that required the sentencing court 

to impose a sentence “in accordance with” the crime-of-violence 

scheme. § 18-3-405.3(4). He is subject to the LSA because he 

stands convicted of a sex offense committed after November 1, 
6 

1998. See §§ 18-1.3-1003(4), -1003(5)(a)(III)(A), -1012, C.R.S. 2016. 

And, because he committed a crime of violence and a sex offense, 

he is subject to section 18-1.3-406(1)(b), not the general, non-sexoffense section of 18-1.3-406(1)(a). Chavez, ¶ 20. 

¶ 11 Because these circumstances are the same as the defendant’s 

in Chavez, Al-Turki is foreclosed from probation and the provisions 

in section 18-1.3-406(1)(a) allowing the court to modify a 

determinate term of incarceration to probation are not available to 

him. See id. at ¶ 21 (concluding that, as to LSA sex offender 

defendant, “the crime-of-violence enhancement makes [defendant] 

ineligible for probation”). 

¶ 12 We recognize that Al-Turki’s request to modify his original 

indeterminate term of incarceration to probation is different from 

the defendant’s request in Chavez that he be sentenced initially to 

probation rather than an indeterminate term of incarceration. 

Nonetheless, our conclusion that Chavez mandates that Al-Turki is 

ineligible for probation is unaltered by this difference. The supreme 

court’s sweeping and unqualified language in Chavez answers 

negatively the question whether a crime-of-violence sex offender’s 
7 

mandatory sentence to an indeterminate term of incarceration can 

later be modified to probation.2 Id. 

¶ 13 The district court did not err in concluding that section 18-

1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to 

probation. 

III. Conclusion 

¶ 14 The district court’s order is affirmed. 

JUDGE ROMÁN concurs. 

JUDGE HARRIS dissents.

 

2 Despite the dissent’s detailed and eloquent reasoning, we are 

“bound to follow supreme court precedent.” In re Estate of 

Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney 250 P.3d 

762, 768 n.3 (Colo. App. 2010)). 
8 

JUDGE HARRIS, dissenting. 

¶ 15 Defendant Homaidan Al-Turki raised two distinct claims on 

appeal. First, he contended that his convictions for unlawful sexual 

contact were not crimes of violence under the Colorado Sex 

Offender Lifetime Supervision Act of 1998 (LSA), §§ 18-1.3-1001 

to -1012, C.R.S. 2016, and, therefore, he was eligible for an initial 

sentence to probation under the LSA, see § 18-1.3-1004(2)(a), 

C.R.S. 2016. Second, and in the alternative, he contended that, 

even if his convictions were per se crimes of violence that subjected 

him to sentencing under the crime of violence statute, section 18-

1.3-406, C.R.S. 2016, the district court could modify his sentence 

of imprisonment to a probationary sentence. This was true, he 

argued, because the LSA did not change crime of violence 

sentencing for sex offenders other than to mandate indeterminate 

sentencing. Modification to probation was authorized for violent sex 

offenders prior to enactment of the LSA and, therefore, the 

modification continued to be authorized post-LSA. 

¶ 16 During the pendency of the appeal, our supreme court issued 

its opinion in Chavez v. People, 2015 CO 62. Chavez forecloses 

Al-Turki’s first argument, but it does not address the second. The 
9 

majority opinion carefully and persuasively explains why Al-Turki 

was not eligible for an initial sentence to probation under section 

18-1.3-1004(2) or section 18-1.3-406. But it then assumes, 

without additional argument or evidence, that the same reasoning 

supports the entirely separate conclusion that section 18-1.3-406 

does not authorize a subsequent modification of Al-Turki’s sentence 

below the aggravated range. My examination of the language, 

history, and purpose of the statutes, as well as the relevant case 

law, leads me to the conclusion that the district court had the 

authority to modify Al-Turki’s sentence, including a modification to 

probation. Therefore, I must respectfully dissent. 

I. Legal Background 

¶ 17 An offense can qualify as a “crime of violence” in one of two 

ways. Under section 18-1.3-406, a crime of violence is defined as 

any of the enumerated offenses during the commission of which the 

defendant used, or possessed and threatened the use of, a deadly 

weapon or caused serious bodily injury or death to a 

nonparticipant. § 18-1.3-406(2)(a). These crimes are sometimes 

referred to as “defined” crimes of violence. See Chavez, ¶ 12. In 

addition, some offenses (which may not necessarily meet the 
10 

statutory definition of a crime of violence) have been designated by 

the legislature as crimes of violence for sentencing purposes. The 

statutes defining these offenses direct the court to sentence the 

defendant “in accordance with the provisions of section 18-1.3-

406.” These crimes are referred to as “per se” crimes of violence. 

People v. Banks, 9 P.3d 1125, 1130 (Colo. 2000). 

¶ 18 As the majority notes, Al-Turki was convicted of, among other 

offenses, twelve counts of unlawful sexual contact by force, in 

violation of section 18-3-404(2)(b), C.R.S. 2016. Unlawful sexual 

contact is ordinarily a class 1 misdemeanor, but when committed 

by the use of force, it is a class 4 felony sex offense and a “per se” 

crime of violence subject to aggravated sentencing under the crime 

of violence statute. 

¶ 19 Prior to the enactment of the LSA in 1998, all crimes of 

violence (including sex offenses) were subject to enhanced 

sentencing under section 16-11-309(1)(a), the predecessor to 

section 18-1.3-406(1)(a). See Ch. 318, sec. 1, § 18-1.3-406, 2002 

Colo. Sess. Laws 1403. Under this provision, the court was 

required to sentence any violent offender to a term of imprisonment 

of at least the midpoint in, but no more than twice the maximum of, 
11 

the presumptive sentencing range for the offense of conviction. 

§ 16-11-309(1)(a), C.R.S. 1985. The same provision, however, 

authorized the trial court to modify any crime of violence sentence, 

even to the point of probation, upon a finding of unusual and 

extenuating circumstances. Id. Thus, while no violent offender was 

initially eligible for a probationary sentence under the statute, every 

violent offender who met the exceptional circumstances criteria was 

eligible for a subsequent modification of his sentence to a term 

below the aggravated range. See People v. Beyer, 793 P.2d 644, 646 

(Colo. App. 1990) (the initial sentence for a crime of violence must 

be in the aggravated range but may be modified to a sentence of 

probation), overruled on other grounds by Robles v. People, 811 P.2d 

804 (Colo. 1991). 

¶ 20 The LSA was enacted with the goal of providing sex offenders 

with lifetime treatment and supervision. § 18-1.3-1001, C.R.S. 

2016. To that end, the LSA requires that any defendant convicted 

of a sex offense be sentenced to an indeterminate term of 

imprisonment of at least the minimum of the presumptive range 

specified for that offense and a maximum of the sex offender’s life, 
12 

see § 18-1.3-1004(1)(a), though some sex offenders are initially 

eligible for probation, see § 18-1.3-1004(2)(a). 

¶ 21 The LSA includes its own provision for sex offenses that are 

defined crimes of violence. See § 18-1.3-1004(1)(b). But it does not 

separately address sentencing for sex offenses that are per se 

crimes of violence. Instead, the statutes defining those offenses 

continue to direct trial courts to sentence the defendant “in 

accordance with” the crime of violence statute. The crime of 

violence statute, however, did not provide for indeterminate 

sentencing, so in 1998, when the legislature enacted the LSA, it 

also amended the crime of violence statute to include a new section 

that directed the trial court to impose an aggravated indeterminate 

sentence for violent sex offenses. See Ch. 303, sec. 9, § 16-11-309, 

1998 Colo. Sess. Laws 1291 (codified as amended at section 18-1.3-

406(1)(b)). 

¶ 22 In its current iteration, the crime of violence statute now 

provides, in relevant part: 

(1)(a) Any person convicted of a crime of 

violence shall be sentenced . . . to the 

department of corrections for a term of 

incarceration of at least the midpoint in, but 

not more than twice the maximum of, the 
13 

presumptive range provided for such offense 

. . . without suspension; except that, within 

ninety-one days after he or she has been 

placed in the custody of the department of 

corrections, the department shall transmit to 

the sentencing court a report on the evaluation 

and diagnosis of the violent offender, and the 

court, in a case which it considers to be 

exceptional and to involve unusual and 

extenuating circumstances, may thereupon 

modify the sentence, effective not earlier than 

one hundred nineteen days after his or her 

placement in the custody of the department. 

Such modification may include probation if the 

person is otherwise eligible therefor1. . . . 

(b) Notwithstanding the provisions of 

paragraph (a) of this subsection (1), any person 

convicted of a sex offense, as defined in section 

18-1.3-1003(5), committed on or after 

November 1, 1998, that constitutes a crime of 

violence shall be sentenced to the department 

of corrections for an indeterminate term of 

incarceration of at least the midpoint in the 

presumptive range specified in section 18-1.3-

401(1)(a)(V)(A) up to a maximum of the 

person’s natural life, as provided in section 18-

1.3-1004(1). 

§ 18-1.3-406(1)(a)-(b). 

 

1 A person is “eligible” for probation unless he has been convicted of 

a class 1 felony or a class 2 petty offense, § 18-1.3-201, C.R.S. 

2016, or unless otherwise specifically precluded. See, e.g., § 18-

1.3-401(8)(d)(II), C.R.S. 2016 (“In no case shall any defendant” 

convicted of a class 2 or class 3 felony of child abuse “be eligible for 

suspension of sentence or for probation or deferred prosecution.”). 
14 

¶ 23 Thus, the crime of violence statute now differentiates between 

violent sex offenses and non-sex-related violent offenses. Hunsaker 

v. People, 2015 CO 46, ¶ 24. 

II. Chavez Does Not Control the Outcome of This Case 

¶ 24 Like Al-Turki, the defendant in Chavez, ¶ 16, was convicted of 

a sex offense that constituted a per se crime of violence. Under the 

LSA, a defendant is subject to crime of violence sentencing, and 

ineligible for an initial sentence of probation, only when he has been 

convicted of a defined crime of violence. § 18-1.3-1004(1)(b), (2)(a). 

Thus, Chavez argued — as Al-Turki did — that he was not subject 

to section 18-1.3-406 and, instead, the district court could have 

initially sentenced him to probation under section 18-1.3-1004(2). 

Chavez, ¶¶ 17, 19. 

¶ 25 The supreme court rejected that argument, explaining that 

Chavez was subject to the crime of violence enhancement, not 

under section 18-1.3-1004(1)(b) of the LSA, but under the statute 

defining his offense, which mandated that he be sentenced “in 

accordance” with section 18-1.3-406. Id. at ¶ 16. And, like all 

violent offenders, violent sex offenders are not initially eligible for 

probation under section 18-1.3-406. Id. at ¶¶ 19-20. The supreme 
15 

court did not address whether the defendant’s sentence could be 

subsequently modified to probation. 

¶ 26 Still, the majority highlights two passages from Chavez that it 

says resolve the question. First, in responding to Chavez’s 

argument that he was eligible for probation under the LSA, the 

court stated: 

Chavez, however, is not probation-eligible 

because he is also subject to the mandatory 

crime-of-violence enhancement. This 

forecloses probation. Put differently, the LSA 

requires that Chavez serve an indeterminate 

sentence. The crime-of-violence enhancement 

requires that he serve it in prison, and the LSA 

did not alter that. 

Id. at ¶ 19 (citation omitted). 

¶ 27 If probation was “foreclosed” for Chavez, the majority reasons, 

it must be “foreclosed” for Al-Turki, who was also convicted of a per 

se violent sex offense. But the cited language means only that, as a 

long-established matter, violent offenders — whether sex offenders 

or non-sex offenders — are precluded under section 18-1.3-406 

from receiving an initial sentence to probation. As noted, prior to 

the LSA’s adoption, the crime of violence statute required that “[a]ny 

person convicted of a crime of violence shall be sentenced . . . to a 
16 

term of incarceration . . . without suspension,” but authorized a 

subsequent sentence modification to probation. § 16-11-309(1)(a), 

C.R.S. 1985. 

¶ 28 The court’s pronouncement that the mandatory crime of 

violence statute “forecloses probation” cannot signal some new, 

post-LSA rule prohibiting a modification to probation of a sex 

offender’s sentence. If it did, the court would not have declared 

that “the LSA did not alter” the pre-LSA crime of violence 

sentencing rules. 

¶ 29 Second, the majority points to the Chavez court’s distinction 

between section 18-1.3-406(1)(a) and (1)(b), and its emphasis on 

incarceration as the required punishment: 

Because Chavez committed a crime of violence 

and a sex offense, he is subject to section 

406(1)(b), not the general, non-sex-offense 

section of 406(1)(a). Section 406(1)(b) says 

defendants convicted of violent sexual offenses 

“shall be sentenced to the department of 

corrections for an indeterminate term of 

incarceration . . . .” Chavez cannot be eligible 

for probation because “incarceration” means 

“imprisonment, confinement in a jail or 

penitentiary,” . . . and “‘shall’ indicates that a 

term is mandatory[.]” 

Id. at ¶ 20 (citations omitted). 
17 

¶ 30 But here, too, the court is merely reciting the general rule that 

a violent sex offender, like any violent offender, is not eligible for an 

initial sentence to probation. True, section 18-1.3-406(1)(b) 

requires that defendants convicted of violent sex offenses be 

sentenced to a term of incarceration, but so does section 18-1.3-

406(1)(a), and it is undisputed that sentences imposed under 

section 18-1.3-406(1)(a) may be modified, including a modification 

to probation. Thus, the distinction between section 18-1.3-406(1)(a) 

and (1)(b) could not have been determinative of the issue of 

probation eligibility. 

¶ 31 Instead, in my view, the court distinguished between sections 

18-1.3-406(1)(a) and (1)(b) to underscore that the legislature’s 

addition of section 18-1.3-406(1)(b) in response to the enactment of 

the LSA did not alter the general rule that violent offenders are not 

initially eligible for probation. Beyer, 793 P.2d at 646. That is why 

the distinction is preceded by the language discussed above: “[T]he 

LSA requires that Chavez serve an indeterminate sentence. The 

crime-of-violence enhancement requires that he serve it in prison, 

and the LSA did not alter that.” Chavez, ¶ 19 (citation omitted). 
18 

¶ 32 Thus, I agree with the majority that Chavez decided the 

following: 

(1) A defendant, like Al-Turki, who is convicted of a per 

se crime of violence is subject to the mandatory 

crime-of-violence enhancement in section 18-1.3-

406(1)(b). 

(2) Section 18-1.3-406(1)(b) applies to violent sex 

offenders and mandates an enhanced indeterminate 

sentence. 

(3) Section 18-1.3-406(1)(b) forecloses an initial 

sentence to probation because (like section 18-1.3-

406(1)(a)) it requires that the defendant be 

sentenced to the custody of the department of 

corrections for a term of incarceration. 

¶ 33 But Chavez does not address, much less answer, the other 

question presented on appeal: even if Al-Turki was initially ineligible 

for probation under section 18-1.3-406(1)(b), did the district court 

have authority to modify his sentence under section 18-1.3-

406(1)(a)? 

III. The District Court Had Authority to Modify Al-Turki’s Sentence 
19 

¶ 34 To answer that question, I must examine section 18-1.3-406 

and certain provisions of the LSA, and the interplay between those 

statutes. The goal of statutory interpretation is to discover and give 

effect to the legislative intent. Vensor v. People, 151 P.3d 1274, 

1275 (Colo. 2007). If statutory language is clear, we apply its plain 

and ordinary meaning, but if the statute is ambiguous — meaning 

that it is reasonably susceptible to multiple interpretations — we 

determine the proper construction by examining the legislative 

intent, the circumstances surrounding its adoption, and the 

possible consequences of various constructions. Hunsaker, ¶ 11. 

¶ 35 The district court deemed section 18-1.3-406(1)(b) 

unambiguous. Adopting the People’s primary argument in 

opposition to Al-Turki’s motion, the district court read section 18-

1.3-406(1)(b)’s introductory phrase, “notwithstanding the provisions 

of paragraph (a) of this subsection (1),” to mean that no part of 

section 18-1.3-406(1)(a) applied to violent sex offenders sentenced 

under section 18-1.3-406(1)(b) and therefore a modification of the 

sentence to probation was impermissible. 

¶ 36 But I read the term “notwithstanding” to mean that section 

18-1.3-406(1)(b) overrides conflicting provisions of section 18-1.3-
20 

406(1)(a). This appears to be the favored interpretation of a 

“notwithstanding” clause. See, e.g., Drakes Bay Oyster Co. v. 

Jewell, 747 F.3d 1073, 1083 (9th Cir. 2013) (“As a general matter, 

‘notwithstanding’ clauses nullify conflicting provisions of law.”); 

Arias v. Superior Court, 209 P.3d 923, 931 (Cal. 2009) 

(“notwithstanding” clause is “a ‘term of art’ . . . that declares the 

legislative intent to override all contrary law”; it does not render 

nonconflicting provisions inapplicable) (citation omitted); Missouri 

ex rel. Mo. Pub. Serv. Comm’n v. Joyce, 258 S.W.3d 58, 62 (Mo. 

2008) (“notwithstanding” clause has the effect of “preventing a 

conflict from arising between two statutory sections”); see also 

Zamarripa v. Q & T Foods Stores, Inc., 929 P.2d 1332, 1339 n.9 

(Colo. 1997) (“notwithstanding” means “without prevention or 

obstruction from or by”) (citation omitted). Thus, I construe the 

“notwithstanding” clause in section 18-1.3-406(1)(b) to override only 

the inconsistent part of section 18-1.3-406(1)(a) — the directive that 

trial courts impose a determinative aggravated sentence.2 

 

2 According to the People, even if the “notwithstanding” clause is 

interpreted to invalidate only conflicting provisions of section 18-

1.3-406(1)(a), C.R.S. 2016, the result is the same “because 
21 

¶ 37 The People counter that if the “notwithstanding” clause were 

intended to carve out an exception to the statute limited to 

indeterminate sentencing for sex offenders, section 18-1.3-406(1)(b) 

would read: “Any person convicted of a sex offense . . . that 

constitutes a crime of violence shall be sentenced to the department 

of corrections . . . or to probation for an indeterminate term.” But 

that alternative language would not implement a limited carve-out 

for indeterminate sentencing; instead, it would permit an initial 

sentence to probation for a violent offender, something prohibited 

under both (1)(a) and (1)(b) of section 18-1.3-406. So, the People’s 

argument does not persuade me that I have misconstrued the 

“notwithstanding” clause. 

¶ 38 Still, even assuming that my interpretation of the clause is not 

definitive, it is at least reasonable, and if one could sensibly credit 

both my reading and the district court’s, then the statute is 

ambiguous. See Gibson v. Parish, 360 F. App’x 974, 980 (10th Cir. 

 

authorization of probation conflicts with mandatory prison sentence 

with no exceptions.” But that argument just begs the question of 

whether section 18-1.3-406(1)(a)’s exception to a mandatory prison 

sentence applies to all violent offenders, including violent sex 

offenders sentenced under section 18-1.3-406(1)(b). 
22 

2010) (“notwithstanding” clause was susceptible to more than one 

reasonable interpretation, rendering the statute ambiguous). 

¶ 39 Relying on rules of statutory construction, I conclude that the 

pre-existing provisions of section 18-1.3-406(1)(a) that are not 

inconsistent with section 18-1.3-406(1)(b) apply equally to sex 

offenders sentenced under 18-1.3-406(1)(b). 

¶ 40 First, as I noted earlier, section 18-1.3-406(1)(b) was added 

only to accommodate the LSA’s new indeterminate sentencing 

scheme: after adoption of the LSA, offenders who committed nonsex-offense per se crimes of violence could continue to be sentenced 

under section 18-1.3-406(1)(a), but offenders who committed violent 

sex offenses had to be sentenced to aggravated indeterminate 

sentences, necessitating the amendment to the crime of violence 

statute. The supreme court, though, has made clear that the LSA 

“was not intended to alter then-existing sentencing guidelines, other 

than to allow for lifetime supervision,” Hunsaker, ¶ 24, particularly 

when it comes to sentencing for per se violent sex offenses, see 

Chavez, ¶ 21 (holding that sentencing for per se crimes of violence 

continues to be governed by section 18-1.3-406 because a contrary 

interpretation “would contravene the General Assembly’s intent to 
23 

preserve the mandatory sentencing scheme for per se crimes of 

violence predating the LSA”). Thus, “[p]aragraph (1)(b) simply 

dictates that violent sex crimes, unlike violent crimes generally, are 

also subject to indeterminate life sentencing;” the inclusion of 

section 18-1.3-406(1)(b) does not demonstrate an intent by the 

General Assembly to otherwise change the sentencing scheme for 

violent sex offenders. Hunsaker, ¶ 27. 

¶ 41 Prior to the LSA, all violent offenders were eligible for 

modification of their mandatory custodial sentences, including to 

probation. And because the LSA’s “legislative declaration 

demonstrates a clear intent not to increase the punishment of sex 

offenders” with terms of incarceration “longer than those of other 

felons of the same class,” Vensor, 151 P.3d at 1278, I conclude that 

the legislature intended to permit modification of a sex offender’s 

sentence on the same terms as any other violent offender, except 

where specifically precluded. 

¶ 42 Under the People’s interpretation, section 18-1.3-406(1)(b) 

entirely disrupts the pre-existing process for sentence reductions. 

Their argument is that no part of section 18-1.3-406(1)(a) applies to 

offenders sentenced under 18-1.3-406(1)(b). That would mean that 
24 

offenders who committed per se violent sex offenses are not just 

ineligible for a modification to probation; they are categorically 

ineligible under Crim. P. 35(b) for any sentence reduction to a term 

below the aggravated range. 

¶ 43 Rule 35(b) allows the district court to reconsider, in the 

interests of justice, the sentence previously imposed and, in its 

sound discretion, resentence the defendant to a lesser term “within 

the statutory limits.” People v. Smith, 189 Colo. 50, 52, 536 P.2d 

820, 822 (1975); accord Beyer, 793 P.2d at 646. When a violent 

offender seeks relief under Rule 35(b), the court’s authority to 

resentence him outside the statutory limits — to a term below the 

mandatory aggravated range — arises entirely from section 18-1.3-

406(1)(a). Beyer, 793 P.2d at 646. 

¶ 44 Thus, under the People’s construction, the addition of 

subsection (1)(b) to section 18-1.3-406 not only directed the 

imposition of aggravated indeterminate sentencing for violent sex 

offenders, it also eliminated any possibility under Rule 35(b) that a 

court could resentence those offenders outside the statutory 

aggravated range. But given that implementation of the LSA was 

not intended to alter the existing sentencing rules, had the 
25 

legislature nonetheless intended to institute a sweeping change to 

the availability of sentence reductions for certain violent sex 

offenders, I believe that it would have done so explicitly. 

¶ 45 Indeed, as Al-Turki points out, when the legislature intends to 

preclude an otherwise available sentence, including a sentence to 

probation, it says so. See, e.g., § 18-1.3-401(8)(d)(II), C.R.S. 2016 

(“In no case shall any defendant” convicted of a class 2 or class 3 

felony of child abuse “be eligible for suspension of sentence or for 

probation or deferred prosecution.”); § 18-1.3-804(4), C.R.S. 2016 

(“In no case shall any [habitual burglar] . . . be eligible for 

suspension of sentence or probation.”). 

¶ 46 My conclusion that section 18-1.3-406(1)(b) was enacted for 

the limited purpose of instituting indeterminate aggravated 

sentencing for certain violent sex offenders is also supported by the 

LSA’s sentencing scheme. As I have pointed out, the LSA includes 

its own provision regarding sentencing for defined crimes of 

violence, which tracks the mandatory sentencing language from 

section 18-1.3-406(1)(a): 

If the sex offender committed a sex offense that 

constitutes a crime of violence, as defined in 

section 18-1.3-406, the district court shall 
26 

sentence the sex offender to the custody of the 

department for an indeterminate term of at 

least the midpoint in the presumptive range for 

the level of offense committed and a maximum 

of the sex offender’s natural life. 

§ 18-1.3-1004(1)(b). In contrast, the LSA does not have a provision 

that governs sentencing for per se crimes of violence. Even after 

much of the criminal code was reorganized and renumbered in 

2002, the statutes defining per se violent sex offenses referred the 

trial court not to the LSA’s own crime of violence sentencing 

provision, but to section 18-1.3-406. See Chavez, ¶ 18 (sentence of 

sex offender convicted of per se crime of violence was enhanced 

under section 18-1.3-406(1)(b), not section 18-1.3-1004(1)(b)). 

¶ 47 Take, for example, the statute under which Al-Turki was 

convicted, section 18-3-404. That statute instructs that “[i]f a 

defendant is convicted of a class 4 felony of unlawful sexual contact 

. . ., the court shall sentence the defendant in accordance with the 

provisions of section 18-1.3-406.” § 18-3-404(3). But sex offenders 

who commit per se crimes of violence are “[w]ithout question” 

subject “to the LSA,” Chavez, ¶ 19, and, therefore, the legislature 

could have required district courts to use the LSA, and not section 

18-1.3-406, to enhance those defendants’ sentences by simply 
27 

instructing that they be sentenced “in accordance with section 18-

1.3-1004(1)(b).” Instead, the legislature made the choice — which I 

will assume was informed and deliberate, see People v. Gookins, 111 

P.3d 525, 528 (Colo. App. 2004) (in construing statutes, courts 

presume that the legislature acted deliberately in its choice of 

statutory language) — to continue to direct courts to section 18-1.3-

406 as the applicable enhancement provision, demonstrating its 

intent to maintain the sentencing status quo for sex offenders 

convicted of per se crimes of violence.3

¶ 48 The People argue that section 18-1.3-406(1)(b)’s reference to 

the LSA’s general indeterminate sentencing provision, rather than 

 

3 Even if section 18-1.3-1004(1)(b), C.R.S. 2016, which applies to 

sex offenders who are convicted of “defined” crimes of violence, 

precludes a subsequent modification of the offender’s sentence 

below the aggravated range — an issue I do not address — the 

prohibition does not undermine my conclusion that probation is 

nonetheless available to other violent sex offenders. It makes sense 

that the legislature would treat sex offenders convicted of defined 

crimes of violence differently than sex offenders convicted of per se 

crimes of violence — the distinction “comports with the goals of the 

criminal law to separate more culpable from less culpable conduct.” 

People v. Banks, 9 P.3d 1125, 1131 (Colo. 2000) (legislature acted 

reasonably in requiring extraordinary risk sentencing for 

defendants convicted of defined crimes of violence, but not per se 

crimes of violence, because defendants in the former category are 

more culpable than those in the latter category). 
28 

its probation provision, suggests an intent to preclude a sentence 

reduction to probation. Section 18-1.3-406(1)(b) calls for the 

imposition of an indeterminate term of imprisonment “up to a 

maximum of the person’s natural life, as provided in section 18-1.3-

1004(1).” (Emphasis added.) Section 18-1.3-1004(1) provides 

instructions for imposing an indeterminate prison sentence, while 

section 18-1.3-1004(2) authorizes an initial sentence to probation 

under certain circumstances. According to the People, if section 

18-1.3-406(1)(b) authorized a modification of a sex offender’s 

sentence to probation, the section would direct courts to sentence 

“as provided in section 18-1.3-1004(1) or 1004(2).” 

¶ 49 But everyone agrees that section 18-1.3-406 precludes an 

initial sentence to probation. So of course section 18-1.3-406(1)(b) 

would not direct the district court to sentence a sex offender “as 

provided in section 18-1.3-1004(2)” — a section of the LSA that 

authorizes an initial sentence to probation — regardless whether 

section 18-1.3-406(1)(b) contemplated a later modification to 

probation. 

¶ 50 Finally, in considering the consequences of a particular 

interpretation of section 18-1.3-406(1)(b), I note that the People’s 
29 

construction of the statute would significantly limit the discretion of 

district courts to differentiate among offenders, a result we 

generally try to avoid. Hunsaker, ¶ 26; Vensor, 151 P.3d at 1278. 

Indeed, eliminating the possibility of a sentence modification below 

the mandatory aggravated range for every per se violent sex offender 

“is antithetical to the legislature’s goal of increasing sentencing 

options in this context.” Hunsaker, ¶ 26. 

¶ 51 Although the language of section 18-1.3-406(1)(b) is not a 

model of clarity, I think the legislative intent is clear. And I am 

mindful of the well-settled principle that “[a] statute should not be 

construed in a manner which defeats the obvious legislative intent.” 

People v. Summers, 208 P.3d 251, 254 (Colo. 2009) (citation 

omitted). I therefore conclude that the district court in this case 

had authority under section 18-1.3-406 to reduce Al-Turki’s 

sentence below the statutory aggravated range, including to 

probation. 

¶ 52 I do not mean to suggest, however, that a modification to 

probation would be warranted in this case. That is a determination 

for the district court. But based on my reading of section 18-1.3-

406 and the LSA, I would reverse the judgment and remand the 
30 

case to permit the district court to decide Al-Turki’s motion on the 

merits.