The People of the State of Colorado, v. Jeffrey Denton Brosh
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COLORADO COURT OF APPEALS
2012 COA 216 M
Court of Appeals No. 11CA1586
El Paso County District Court No. 06CR5837
Honorable Ronald G. Crowder, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeffrey Denton Brosh,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE FOX
Carparelli and Miller, JJ., concur
Opinion Modified and
Petition for Rehearing DENIED
Announced December 27, 2012
John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Philip A. Cherner, Denver, Colorado, for Defendant-Appellant
OPINION is modified as follows:
Page 2, lines 19-20 currently reads:
The purpose of Crim. P. 35(b) is to permit a court a single
opportunity to reconsider a previously imposed sentence.
Opinion now reads:
The purpose of Crim. P. 35(b) is to permit a court to reconsider
a previously imposed sentence.
¶1
Defendant, Jeffrey Denton Brosh, appeals the trial court’s
order denying his Crim. P. 35(b) motion. We affirm.
I. Background
¶2
Brosh was charged with multiple counts arising from incidents
in which he sexually assaulted and provided alcohol to a twelveyear-old victim. Brosh pled guilty to one count of sexual assault on
a child by one in a position of trust in exchange for dismissal of the
other charges. The trial court sentenced Brosh to an indeterminate
term of four years to life in the Department of Corrections.
¶3
After a hearing, the trial court designated Brosh a sexually
violent predator (SVP) under section 18-3-414.5, C.R.S. 2012. On
direct appeal, this court affirmed the trial court’s SVP designation.
People v. Brosh, 251 P.3d 456, 460-61 (Colo. App. 2010) (Brosh I).
¶4
While the direct appeal from the SVP designation was pending,
Brosh filed a Crim. P. 35(b) motion, but requested that the court
withhold its ruling for one year. The trial court entered a minute
order noting that it lacked jurisdiction, and that it would address
the Crim. P. 35(b) motion when it had jurisdiction. Following
remand from the direct appeal, the trial court requested that Brosh
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supplement his Crim. P. 35(b) motion. Brosh’s supplemental
motion sought reconsideration of his sentence and SVP designation.
¶5
The trial court denied the Crim. P. 35(b) motion, explaining
that it could not reconsider the SVP designation because it was not
part of Brosh’s sentence. Brosh appeals on grounds that the trial
court erred by (1) concluding that it lacked authority to address the
SVP designation; (2) failing to recognize that it had authority under
Crim. P. 35(b) to order a new SVP evaluation; and (3) applying
incorrect legal standards.
II. Standard of Review
¶6
Brosh’s appeal requires us to review the trial court’s
interpretation of Crim. P. 35(b). Interpretation of the criminal rules
of procedure presents a question of law, which we review de novo.
People v. Romero, 197 P.3d 302, 305 (Colo. App. 2008).
III. SVP Designation
¶7
Brosh contends that the trial court should have reconsidered
the SVP designation under Crim. P. 35(b) because it is part of his
sentence. We disagree.
¶8
The purpose of Crim. P. 35(b) is to permit a court to reconsider
a previously imposed sentence. See People v. Fuqua, 764 P.2d 56,
2
60 (Colo. 1988); People v. Olivas, 911 P.2d 675, 677 (Colo. App.
1995).
¶9
All sex offenders in Colorado are required to register pursuant
to the Colorado Sex Offender Registration Act. §§ 16-22-101 to 115, C.R.S. 2012. A sex offender designated as an SVP, however, is
subject to more stringent registration requirements, including
lifetime registration and automatic listing on the state’s website.
See § 16-22-108, C.R.S. 2012 (registration requirements); § 16-22111, C.R.S. 2012 (website listing requirements).1 “Sex offender
registration is not an element of a defendant’s sentence, and the
purpose of registration is not to punish the defendant, but to
protect the community and to aid law enforcement officials in
investigating future sex crimes.” People v. Carbajal, 2012 COA 107,
¶ 37; see People v. Rowland, 207 P.3d 890, 892-93, 895 (Colo. App.
2009); Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004);
People v. Stead, 66 P.3d 117, 120 (Colo. App. 2002); see also Brosh
1A
portion of the indeterminate sentencing provisions for a certain
class of sex offenders designated as SVPs, namely section 18-1.31004(4), was repealed effective June 7, 2012. See Ch. 268, sec. 14,
2012 Colo. Sess. Laws 1397-98.
3
I, 251 P.3d at 460 (“The SVP statute is protective, not punitive . . .
.”); see also § 16-13-901, C.R.S. 2012.
¶ 10
The trial court makes findings of fact regarding SVP criteria.
See Brosh I, 251 P.3d at 460. Those findings either support or do
not support a determination of SVP. Id. We review the findings for
clear error, and determine whether those findings are sufficient, as
a matter of law, to support a finding of SVP. Id. Thus, review of an
SVP designation is ultimately an issue of law, and, unlike the
determination of a sentence within the sentencing range, not
discretionary. See People v. Dunlap, 36 P.3d 778, 781 (Colo. 2001)
(explaining that a motion for a reduction of sentence is addressed
purely to the discretion of the trial court). Accordingly,
discretionary reconsideration of an SVP designation by the trial
court, under Crim. P. 35(b), is not available.
Brosh cites People v. Tuffo, 209 P.3d 1226 (Colo. App. 2009),
to support his position that an SVP designation is subject to
reconsideration. There, the sentencing court permitted the
defendant to file a motion to reconsider the court’s SVP finding
because the defendant was unprepared to address the issue at the
original sentencing hearing. Id. at 1228. At a second hearing seven
4
months later, the sentencing court reconsidered its SVP finding in
light of the defendant’s factual and legal arguments. Id. The court
affirmed its SVP designation, and the defendant directly appealed.
Id. Despite the trial court’s language that it would “reconsider” its
ruling, it effectively continued the issue because it considered the
defendant’s arguments for the first time at the second hearing. Id.
¶ 11
In assessing the timeliness of the defendant’s appeal, a
division of this court noted that the “Colorado procedural rules do
not expressly provide for motions to reconsider SVP rulings.” Id. at
1229. Nonetheless, under “the unusual circumstances of th[e]
case,” the division declined to hold that the “defendant ha[d]
forfeited his SVP challenge.” Id. The division ultimately vacated the
SVP designation and remanded for specific factual findings on
contested factual issues. Id. at 1231-32.
¶ 12
The Tuffo division did not hold that a defendant can use Crim.
P. 35(b) to lodge a collateral attack on an SVP designation. Id.
Indeed, the division disapproved of the sentencing court’s decision
to reconsider, explaining that the “procedure followed here on the
SVP ruling is certainly not a model one.” Id. at 1229. Unlike the
defendant in Tuffo, Brosh has already directly appealed the SVP
5
designation, and a division of this court considered and rejected his
arguments. See Brosh I, 251 P.3d at 461-62 (affirming the SVP
designation).
¶ 13
Because sex offender registration is not part of a sentence, the
trial court cannot reconsider Brosh’s SVP designation under Crim.
P. 35(b). See Carbajal, ¶ 37; Rowland, 207 P.3d at 892-93.
IV. SVP Re-Evaluation
¶ 14
Brosh contends that the trial court erred in failing to recognize
it had authority under Crim. P. 35(b) to order a new SVP evaluation.
We disagree.
¶ 15
Even if we assume, without deciding, that Brosh preserved
this issue, Brosh cites no authority to support his position that a
trial court can, sua sponte, order a new SVP evaluation after the
designation has been affirmed on direct appeal. Instead, Brosh
argues that the court would not designate him an SVP if he were
rescreened under different evaluation standards. His argument is
irrelevant to the question of whether the court has the ability to
authorize a new evaluation under Crim. P. 35(b). Absent any
supporting authority for Brosh’s position, we reject his contention.
6
See People v. Saiz, 923 P.2d 197, 205 (Colo. App. 1995) (rejecting a
defendant’s contention that had no supporting authority).
V. Crim. P. 35(b) Legal Standard
¶ 16
Brosh contends that the trial court applied an incorrect legal
standard when it determined that it could not grant his Crim. P.
35(b) motion without infringing on the executive branch’s authority.
We disagree.
¶ 17
The court expressly recognized its authority to reconsider
Brosh’s DOC sentence – separate from his SVP designation – under
Crim. P. 35(b). Relying on relevant law, the court explained that,
“[it] must consider all relevant and material factors, including new
evidence as well as facts known at the time the original sentence
was imposed.” People v. Ellis, 873 P.2d 22, 23 (Colo. App. 1993).
¶ 18
The court addressed Brosh’s argument that he was entitled to
a reduced sentence because of his progress in the sex offender
treatment program and his sobriety while incarcerated. In rejecting
the argument, the court appropriately relied on People v. Piotrowski,
855 P.2d 1 (Colo. App. 1992), which holds that a trial court cannot
7
modify a sentence based solely on evidence of the defendant’s
conduct during incarceration.2 Id. at 2.
¶ 19
To the extent that the court noted that its authority does not
extend to changing or usurping the laws about parole eligibility for
sex offenders, it did not err. The court appropriately noted those
limitations on its authority when it declined to consider Brosh’s
position that “the prospects for sex offenders to be paroled are
bleak.”
¶ 20
Accordingly, the court did not misapply the law in denying
Brosh’s Rule 35(b) motion.
¶ 21
The order is affirmed.
JUDGE CARPARELLI and JUDGE MILLER concur.
However, a trial court is free to consider an inmate’s “exemplary
conduct while incarcerated” in addressing a Rule 35(b) motion.
Ghrist v. People, 897 P.2d 809, 813 (Colo. 1995); see also Mamula v.
People, 847 P.2d 1135, 1137 (Colo. 1993).
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