CO Code § 18-1.3-904 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1.3 - Sentencing in Criminal Cases|Part 9 - Sentencing of Sex Offenders|§ 18-1.3-904. Indeterminate Commitment

 The district court having jurisdiction may, subject to the requirements of this part 9, in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the department for an indeterminate term having a minimum of one day and a maximum of his or her natural life.   History. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1.    Editor's note:   This section is similar to former § 16-13-203 as it existed prior to 2002.   ANNOTATION   Law reviews. For article, “Criminal Law”, see 32 Dicta 409 (1955). For article, “One Year Review of Criminal Law and Procedure”, see 39 Dicta 81 (1962). For comment, “A Constitutional Challenge to the Release Procedures of the Colorado Sex Offenders Act: Is It Just a Matter of Time?”, see 58 U. Colo. L. Rev. 313 (1987).   Annotator's note. Since § 18-1.3-904 is similar to § 16-13-203 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, repealed § 39-19-1 , C.R.S. 1963, and § 39-19-1 , CRS 53, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Purpose of act is to protect public. The primary purpose of the Colorado sex offenders act is the protection of members of the public from proven dangerous sex offenders. People v. White, 656 P.2d 690 (Colo. 1983); People v. Lustgarden, 914 P.2d 488 (Colo. App. 1995); People v. Wortham, 928 P.2d 771 (Colo. App. 1996).   Sex offenders subject to indeterminate term. Sex offenders within the meaning of this part 2 may be committed to a state institution for an indeterminate term having a minimum of one day and a maximum of his natural life. Trueblood v. Tinsley, 148 Colo. 503 , 366 P.2d 655 (1961), cert. denied, 370 U.S. 929, 82 S. Ct. 1570, 8 L. Ed. 2d 507 (1962).   Upon notice and hearing. A defendant who has been convicted of a sexual offense which carries a maximum sentence of 10 years but not sentenced under such provision, may not be sentenced under the sex offenders act for an indeterminate term of from one day to life. Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).   Constitutionality. Statutes similar to the sex offenders act have been held not repugnant to the equal protection provision, since it is recognized that the state has the right through its general assembly to classify persons based upon reasonable and natural distinctions, to accomplish the legitimate purposes of its police power in fixing the differing penalties. Trueblood v. Tinsley, 148 Colo. 503 , 366 P.2d 655 (1961), cert. denied, 370 U.S. 929, 82 S. Ct. 1570, 8 L. Ed. 2d 507 (1962).   Where classification of sex offenders under this section is based upon reasonable and natural distinctions to accomplish a legitimate purpose under the police power, and the trial court makes a finding of fact to determine whether a defendant comes with the classification, such findings and classification do not offend against equal protection principles of the constitution. Vanderhoof v. People, 152 Colo. 147 , 380 P.2d 903 (1963).   This section providing for commitment of one day to life for certain sex offenses is not unconstitutional as imposing cruel and unusual punishment upon one charged and sentenced thereunder. Specht v. Tinsley, 153 Colo. 235 , 385 P.2d 423 (1963); Raullerson v. People, 157 Colo. 462 , 404 P.2d 149 (1965).   The Colorado sex offenders act is not unconstitutional as being void for vagueness or violative of due process or equal protection, or as constituting cruel and unusual punishment. People v. White, 656 P.2d 690 (Colo. 1983).   Release procedures of the Colorado sex offenders act are not unconstitutional as being violative of due process or equal protection. People v. Kibel, 701 P.2d 37 (Colo. 1985); People v. Adrian, 701 P.2d 45 (Colo. 1985).   Convicted sex offenders who were paroled prior to the expiration of the maximum sentences for the underlying offenses had no standing to challenge whether the lack of periodic judicial review under the act could be justified, under equal protection, after the expiration of a period of confinement equal to the maximum sentence for the underlying crimes. People v. Kibel, 701 P.2d 37 (Colo. 1985).   Sentencing alternative does not involve constitutional right. From the wording of the sex offenders act, it appears that a defendant may require the commencement of a hearing. However, the matter of whether there should be sentencing under the act is an alternative which may be granted or denied by the court, once the psychiatrist and probation officer's reports have been filed and reviewed. This being a sentencing alternative, a constitutional right is not attained. People v. Breazeale, 190 Colo. 17 , 544 P.2d 970 (1975); People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   Former provisions of sex offenders act held unconstitutional on due process grounds for lack of procedural safeguards. Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).   Sentencing under the Sex Offenders Act is an alternative which may be granted or denied by the trial court in its discretion; however, there is no constitutional or statutory right to be sentenced under the Act. People v. Lustgarden, 914 P.2d 488 (Colo. App. 1995).   Commitment proceedings, whether denominated civil or criminal, are subject to the equal protection clause of the fourteenth amendment and to the due process clause. Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).   The punishment under this section is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).   Trial court's failure to advise defendant of the possibility of being sentenced pursuant to the Sex Offenders Act, § 16-13-201 et seq., was not grounds to set aside defendant's guilty plea entered a decade earlier; the failure to so advise was harmless since the defendant was not originally sentenced under the Act. People v. Lustgarden, 914 P.2d 488 (Colo. App. 1995).   This section and § 18-3-408 relating to sexual assault on a child are in pari material and must be interpreted together. Sutton v. People, 156 Colo. 201 , 397 P.2d 746 (1964).   Section does not confer sentencing power on parole board. This section providing for commitment of not less than one day nor more than life, and § 16-13-216 (2) authorizing the parole board to transfer such persons after commitment to other institutions to effectuate purposes of act, do not confer judicial powers on the parole board or involve the sentencing authority of the court. Trueblood v. Tinsley, 148 Colo. 503 , 366 P.2d 655 (1961), cert. denied, 370 U.S. 929, 82 S. Ct. 1570, 8 L. Ed. 2d 507 (1962).   The provisions of this act vest the trial court with discretion to commit a defendant under an alternate sentence. People v. Breazeale, 190 Colo. 17 , 544 P.2d 970 (1975); People v. Wortham, 928 P.2d 771 (Colo. App. 1996); People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   The decision to sentence pursuant to this part is strictly discretionary with the trial court. People v. Sharpless, 635 P.2d 896 (Colo. App. 1981).   When indeterminate commitment authorized in lieu of imprisonment. When the requisite proscribed intent accompanying an unauthorized intrusion is that of seeking to accomplish one of the sex offenses enumerated in § 16-13-202 (5) , a district court may order an indeterminate commitment under this section in lieu of imprisonment. People v. Ingram, 40 Colo. App. 518, 582 P.2d 689 (1978).   Defendant cannot be given sentence of commitment and sentence of imprisonment. This section, read together with § 16-13-211 (2) , established that the district courts could not give a defendant, who was found to constitute a threat of bodily harm to the public, a sentence of commitment and a sentence of imprisonment but have the option to either sentence to imprisonment or sentence to commitment. People v. Lyons, 185 Colo. 112 , 521 P.2d 1265 (1974); People v. Ingram, 40 Colo. App. 518, 582 P.2d 689 (1978).   Only if the court finds that the defendant is a threat to the public has the court the power to commit the defendant for an indeterminate term. People v. Sanchez, 184 Colo. 379 , 520 P.2d 751 (1974); People v. Ingram, 40 Colo. App. 518, 582 P.2d 689 (1978).   If it elects to exercise this option, it must do so “in lieu of the sentence otherwise provided by law”. People v. Sanchez, 184 Colo. 379 , 520 P.2d 751 (1974).   Thus, indeterminate commitment under the sex offenders act was in lieu of prisoner's sentence under the habitual criminal act, and, therefore, the trial court erred in sentencing him to concurrent terms under the respective statutes. People v. Sanchez, 184 Colo. 379 , 520 P.2d 751 (1974).   Second court found defendant not threat to public contrary to first court's determination. Even though a district court, in prosecution under § 18-3-408 , determined that the defendant constituted “a threat of bodily harm to members of the public” under § 16-13-211 (2) and ordered him committed pursuant to this section, a different district court, in a subsequent prosecution of defendant under § 18-3-401 , arising out of different acts by the defendant, was not required under the doctrine of collateral estoppel to accept the first court's determination but could find that defendant was not a threat to the public and could sentence him to imprisonment. People v. Lyons, 185 Colo. 112 , 521 P.2d 1265 (1974).   Statutory limits of sentence proper question on habeas corpus. A person convicted of crime can resort to habeas corpus as a remedy if there is a question of the court's jurisdiction of the person, or its jurisdiction of the accusation made against the defendant, or where the question arises as to whether the judgment and sentence were within the prescribed statutory limits. Trueblood v. Tinsley, 148 Colo. 503 , 366 P.2d 655 (1961), cert. denied, 370 U.S. 929, 82 S. Ct. 1570, 8 L. Ed. 2d 507 (1962).   Remedy for one sentenced under void statute. Since the time when defendant was sentenced under former provisions of the sex offenders act, the United States supreme court has declared the former provisions to be unconstitutional, and a motion under Crim. P. 35(b) to vacate the sentence and impose a proper one may be in order. Nowels v. People, 166 Colo. 140 , 442 P.2d 410 (1968).   The court did not abuse its discretion when it did not impose indeterminate sentencing. The court reviewed the psychiatric reports and probation report and based on those reports determined the defendant was a significant threat to society and indeterminate sentencing was inappropriate. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   Form of commitment valid. A commitment “for a period not exceeding life and not less than one day” was within the limitations of this section providing for commitment of a minimum of one day and a maximum of natural life. Trueblood v. Tinsley, 148 Colo. 503 , 366 P.2d 655 (1961), cert. denied, 370 U.S. 929, 82 S. Ct. 1570, 8 L. Ed. 2d 507 (1962).   Person convicted of a sex offense is not entitled to mandatory parole; therefore, the accumulation of good time and earned time credits do not make person eligible for immediate release. Rather v. Suthers, 973 P.2d 1264 (Colo. 1999).   Applied in Carter v. People, 161 Colo. 10 , 419 P.2d 654 (1966); People v. District Court, 196 Colo. 249 , 585 P.2d 913 (1978).