16-22-113. Petition for removal from sex offender registry - mandatory hearing for discontinuation and removal.
Statute text
(1) Except as required in subsection (3) of this section, any person required to register pursuant to section 16-22-103 or whose information is required to be posted on the internet pursuant to section 16-22-111 may file a petition with the court that issued the order of judgment for the conviction that requires the person to register for an order to discontinue the requirement for such registration or internet posting, or both, as follows:
(a) Except as otherwise provided in paragraphs (d), (e), and (f) of this subsection (1), if the offense that required such person to register constituted or would constitute a class 1, 2, or 3 felony, after a period of twenty years from the date of such person's discharge from the department of corrections, if such person was sentenced to incarceration, or discharge from the department of human services, if such person was committed, or final release from the jurisdiction of the court for such offense, if such person has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior;
(a.5) Except as otherwise provided in subsections (1)(d), (1)(e), and (1)(f) of this section, if the offense that required the person to register constituted human trafficking for sexual servitude pursuant to section 18-3-504 (1)(a), upon completion of the person's sentence and his or her discharge from the department of corrections, if he or she was sentenced to incarceration, or discharge from the department of human services, if he or she was committed to such department, or final release from the jurisdiction of the court for the offense, if the person has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior, the person may file a petition with the court pursuant to subsection (2) of this section. Notwithstanding any other information obtained by the court during the hearing of the petition, a court shall not issue an order discontinuing the petitioner's duty to register unless the petitioner has at least established by a preponderance of the evidence that at the time he or she committed the offense of human trafficking for sexual servitude, he or she had been trafficked by another person, as described in section 18-3-503 or 18-3-504, for the purpose of committing the offense. Failure to make the required showing pursuant to this subsection (1)(a.5) requires the person to comply with the provisions of subsection (1)(a) of this section for any subsequent petition to discontinue the person's duty to register.
(b) Except as otherwise provided in paragraphs (d), (e), and (f) of this subsection (1), if the offense that required such person to register constituted or would constitute a class 4, 5, or 6 felony or the class 1 misdemeanor of unlawful sexual contact, as described in section 18-3-404, C.R.S., or sexual assault in the third degree as described in section 18-3-404, C.R.S., as it existed prior to July 1, 2000, after a period of ten years from the date of such person's discharge from the department of corrections, if such person was sentenced to incarceration, or discharge from the department of human services, if such person was committed, or final release from the jurisdiction of the court for such offense, if such person has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior;
(c) Except as otherwise provided in paragraphs (d), (e), and (f) of this subsection (1), if the offense that required such person to register constituted or would constitute a misdemeanor other than the class 1 misdemeanor of unlawful sexual contact, as described in section 18-3-404, C.R.S., or sexual assault in the third degree as described in section 18-3-404, C.R.S., as it existed prior to July 1, 2000, after a period of five years from the date of such person's final release from the jurisdiction of the court for such offense, if such person has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior;
(d) If the person was required to register due to being placed on a deferred judgment and sentence or a deferred adjudication for an offense involving unlawful sexual behavior, after the successful completion of the deferred judgment and sentence or deferred adjudication and dismissal of the case, if the person prior to such time has not been subsequently convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior and the court did not issue an order either continuing the duty to register or discontinuing the duty to register pursuant to paragraph (a) of subsection (1.3) of this section;
(e) Except as otherwise required by subsection (1.3)(b)(II) of this section, if the person was younger than eighteen years of age at the time of commission of the offense, after the successful completion of and discharge from a juvenile sentence or disposition, and if the person prior to such time has not been subsequently convicted as an adult of unlawful sexual behavior, or for any other offense, the underlying factual basis of which involved unlawful sexual behavior, or does not have a pending prosecution for unlawful sexual behavior as an adult or for any other offense, the underlying factual basis of which involved unlawful sexual behavior, and the court did not issue an order to either continue or discontinue the duty to register pursuant to subsection (1.3)(b) of this section. A person petitioning pursuant to this subsection (1)(e) may also petition for an order to remove the person's name from the sex offender registry. In determining whether to grant the order, the court shall consider whether the person is likely to commit a subsequent offense of or involving unlawful sexual behavior. The court shall base its determination on the following, if available: Recommendations from the person's probation or community parole officer; the person's treatment provider; the prosecuting attorney for the jurisdiction in which the person was tried; and on the recommendations included in the person's presentence investigation report. In addition, the court shall consider any written or oral testimony submitted by the victim of the offense for which the petitioner was required to register. Notwithstanding any other requirements of this subsection (1), a juvenile who files a petition pursuant to this section may file the petition with the court to which venue is transferred pursuant to section 19-2.5-104, if any.
(f) If the information about the person was required to be posted on the internet pursuant to section 16-22-111 (1)(d) only for failure to register, if the person has fully complied with all registration requirements for a period of not less than one year and if the person, prior to such time, has not been subsequently convicted of unlawful sexual behavior or of any other offense, the underlying factual basis of which involved unlawful sexual behavior; except that the provisions of this paragraph (f) shall apply only to a petition to discontinue the requirement for internet posting.
(g) If a person's duty to register pursuant to this article 22 due to an adjudication or disposition as a juvenile has automatically terminated pursuant to section 16-22-103 (4), and the person's name has not already been removed from the sex offender registry by local law enforcement or the CBI, the person may petition for an order to remove the person's name from the sex offender registry. If the person has reached twenty-five years of age or seven years have passed from the date the person was required to register, whichever occurs later, and the person has not subsequently been convicted as an adult of unlawful sexual behavior, or for any other offense, the underlying factual basis of which involved unlawful sexual behavior, or does not have a pending prosecution for unlawful sexual behavior as an adult or for any other offense, the underlying factual basis of which involved unlawful sexual behavior, the court shall issue an order to remove the person's name from the sex offender registry.
(1.3) (a) If a person is eligible to petition to discontinue his or her duty to register pursuant to paragraph (d) of subsection (1) of this section, the court, at least sixty-three days before dismissing the case, shall notify each of the parties described in paragraph (a) of subsection (2) of this section, the person, and the victim of the offense for which the person was required to register, if the victim has requested notice and has provided current contact information, that the court will consider whether to order that the person may discontinue his or her duty to register when the court dismisses the case as a result of the person's successful completion of the deferred judgment and sentence or deferred adjudication. The court shall set the matter for hearing if any of the parties described in paragraph (a) of subsection (2) of this section or the victim of the offense objects or if the person requests a hearing. If the court enters an order discontinuing the person's duty to register, the person shall send a copy of the order to each local law enforcement agency with which the person is registered and to the CBI. If the victim of the offense has requested notice, the court shall notify the victim of its decision either to continue or discontinue the person's duty to register.
(b) (I) If a person adjudicated or who received a disposition as a juvenile is required to register pursuant to section 16-22-103, the court, within fourteen days of the end of the juvenile's sentence, shall notify each of the parties described in subsection (2)(a) of this section, the juvenile, and the victim of the offense for which the juvenile was required to register, if the victim has requested notice and has provided current contact information, that the court shall consider whether to order that the juvenile may discontinue the juvenile's duty to register when the court discharges the juvenile's sentence. The court shall set the matter for hearing if any district attorney or a victim of the offense objects, or if the juvenile requests a hearing. If an objection is not filed within sixty-three days after receipt of the notice, the court shall, on the sixty-fourth day or the next day the court is in session if the sixty-fourth day falls on a Saturday, Sunday, or court holiday, either issue an order, after determination that the juvenile is eligible to discontinue registration pursuant to subsection (1)(e) of this section and a review of the relevant criteria that discontinues the juvenile's duty to register, or set the matter for a hearing to determine if the juvenile's duty to register continues. At any hearing, the court shall determine whether the juvenile is eligible to discontinue registration pursuant to subsection (1)(e) of this section and, if eligible, consider the criteria in subsection (1)(e) of this section in determining whether to continue or discontinue the duty to register. If the court enters an order to discontinue the juvenile's duty to register, the court shall send a copy of the order to each local law enforcement agency with which the juvenile is registered, the juvenile parole board, and to the CBI. If the victim of the offense has requested notice, the court shall notify the victim of its decision either to continue or discontinue the juvenile's duty to register.
(II) If a juvenile is eligible to petition to discontinue his or her registration pursuant to paragraph (e) of subsection (1) of this section and is under the custody of the department of human services and yet to be released on parole by the juvenile parole board, the department of human services may petition the court to set a hearing pursuant to paragraph (e) of subsection (1) of this section at least sixty-three days before the juvenile is scheduled to appear before the juvenile parole board.
(III) If a juvenile is eligible to petition to discontinue his or her registration pursuant to paragraph (e) of subsection (1) of this section and is under the custody of the department of human services and yet to be released on parole by the juvenile parole board, the department of human services, prior to setting the matter for hearing, shall modify the juvenile's parole plan or parole hearing to acknowledge the court order or petition unless it is already incorporated in the parole plan.
(1.5) If the conviction that requires a person to register pursuant to the provisions of section 16-22-103 was not obtained from a Colorado court, the person seeking to discontinue registration or internet posting or both may file a civil case with the district court of the judicial district in which the person resides and seek a civil order to discontinue the requirement to register or internet posting or both under the circumstances specified in subsection (1) of this section.
(2) (a) A registrant who is eligible to petition to discontinue registration pursuant to the provisions of subsection (1) of this section must file a petition with the court of proper jurisdiction and shall provide a copy of the petition by certified mail to each of the following parties:
(I) Each law enforcement agency with which the registrant is required to register;
(II) The district attorney for the jurisdiction in which the petition to discontinue registration has been filed; and
(III) The prosecuting attorney who obtained the conviction of the registrant.
(b) Within twenty-one days after filing the petition, the petitioner shall file with the court copies of the return receipts received from each party notified and any documents supporting his or her eligibility to petition to discontinue registration. The supporting documents must include records documenting the completion of treatment if ordered by the court, when such records are available.
(c) Upon receipt of the petition, the court shall set a date for a hearing and shall notify the petitioner and the district attorney for that jurisdiction of the hearing date. The court shall also notify the victim of the offense for which the petitioner was required to register, if the victim of the offense has requested notice and provided contact information.
(d) If the district attorney or the victim objects to the registrant's petition, the district attorney shall file the objection with the court within sixty-three days after receiving the notice of the petition.
(e) If no objection is filed by the district attorney or made by the victim, the court may consider the petition without a hearing and shall grant the petition if the court finds that the petitioner has completed the sentence for which he or she was required to register; the petitioner has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying basis of which involved unlawful sexual behavior; the waiting time period described in subsection (1) of this section has expired; and the petitioner is not likely to commit a subsequent offense of or involving unlawful sexual behavior. In determining whether to grant the petition, the court shall consider any treatment records provided pursuant to subsection (2)(b) of this section, any written or oral statement of the victim of the offense for which the petitioner was required to register, and any other relevant information presented by the petitioner or district attorney.
(f) If there is objection to the petition by the district attorney or victim, the court shall conduct a hearing on the petition. The court may grant the petition if the court finds the petitioner has completed the sentence for which he or she was required to register; the petitioner has not subsequently been convicted of unlawful sexual behavior or of any other offense, the underlying basis of which involved unlawful sexual behavior; the waiting time period described in subsection (1) of this section has expired; and the petitioner is not likely to commit a subsequent offense of or involving unlawful sexual behavior. In determining whether to grant the petition, the court shall consider any treatment records provided pursuant to subsection (2)(b) of this section, any written or oral statement of the victim of the offense for which the petitioner was required to register, and any other relevant information presented by the petitioner or district attorney.
(g) If the court enters an order discontinuing registration, the petitioner shall provide a copy of the order to each local law enforcement agency with which the petitioner is registered and the CBI. The court shall also notify the victim, if the victim of the offense has requested notice and provided current contact information.
(h) On receipt of a copy of an order discontinuing a petitioner's duty to register:
(I) The CBI shall remove the petitioner's sex offender registration information from the state sex offender registry; and
(II) The local law enforcement agency shall remove the petitioner's sex offender registration information from the local sex offender registry.
(2.5) (a) Notwithstanding any provision of this section to the contrary, a registrant or his or her legal representative may file a petition to discontinue registration if the registrant suffers from a severe physical or intellectual disability to the extent that he or she is permanently incapacitated and does not present an unreasonable risk to public safety.
(b) The registrant or his or her legal representative must file a petition with the court of proper jurisdiction and shall provide a copy of the petition by certified mail to each of the following parties:
(I) Each law enforcement agency with which the registrant is required to register;
(II) The district attorney for the jurisdiction in which the petition to discontinue registration has been filed; and
(III) The prosecuting attorney who obtained the conviction of the registrant.
(c) Within twenty-one days after filing the petition, the petitioner shall file with the court copies of the return receipts received from each party notified and any documents supporting his or her eligibility to petition to discontinue registration. The supporting documents must include records documenting the completion of treatment if ordered by the court, when such records are available.
(d) Upon receipt of the petition, the court shall set a date for a hearing and shall notify the petitioner and the district attorney for that jurisdiction of the hearing date. The court shall also notify the victim of the offense for which the petitioner was required to register, if the victim of the offense has requested notice and provided contact information.
(e) If the district attorney or the victim objects to the registrant's petition, the district attorney shall file the objection with the court within sixty-three days of receiving the notice of the petition.
(f) If no objection is filed by the district attorney or made by the victim, the court may consider the petition without a hearing and shall grant the petition if the court finds the petitioner suffers from a severe physical or intellectual disability to the extent that the petitioner is permanently incapacitated, does not present an unreasonable risk to public safety, and is not likely to commit a subsequent offense of or involving unlawful sexual behavior. In determining whether to grant the petition, the court shall consider any treatment records provided pursuant to subsection (2.5)(c) of this section, any written or oral statement of the victim of the offense for which the petitioner was required to register, and any other relevant information presented by the petitioner or district attorney.
(g) If there is objection to the petition by the district attorney or victim, the court shall conduct a hearing on the petition. The court may grant the petition if the court finds the petitioner suffers from a severe physical or intellectual disability to the extent that the petitioner is permanently incapacitated, does not present an unreasonable risk to public safety, and is not likely to commit a subsequent offense of or involving unlawful sexual behavior. In determining whether to grant the petition, the court shall consider any treatment records provided pursuant to subsection (2.5)(c) of this section, any written or oral statement of the victim of the offense for which the petitioner was required to register, and any other relevant information presented by the petitioner or district attorney.
(h) If the court enters an order discontinuing registration, the petitioner shall provide a copy of the order to each local law enforcement agency with which the petitioner is registered and the CBI. The court shall also notify the victim, if the victim of the offense has requested notice and provided contact information.
(i) On receipt of a copy of an order discontinuing a petitioner's duty to register:
(I) The CBI shall remove the petitioner's sex offender registration information from the state sex offender registry; and
(II) The local law enforcement agency shall remove the petitioner's sex offender registration information from the local sex offender registry.
(3) The following persons are not eligible for relief pursuant to this section, but are subject for the remainder of their natural lives to the registration requirements specified in this article 22 or to the comparable requirements of any other jurisdictions in which they may reside:
(a) Any person who is a sexually violent predator;
(b) Any person who is convicted as an adult of:
(I) Sexual assault, in violation of section 18-3-402; or sexual assault in the first degree, in violation of section 18-3-402, as it existed prior to July 1, 2000; or sexual assault in the second degree, in violation of section 18-3-403, as it existed prior to July 1, 2000; or
(II) Sexual assault on a child, in violation of section 18-3-405, C.R.S.; or
(III) Sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3, C.R.S.; or
(IV) Sexual assault on a client by a psychotherapist, in violation of section 18-3-405.5, C.R.S.; or
(V) Incest, in violation of section 18-6-301, C.R.S.; or
(VI) Aggravated incest, in violation of section 18-6-302, C.R.S.;
(c) Any adult who has more than one conviction as an adult for unlawful sexual behavior or any other offense, the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103 (2), in this state or any other jurisdiction, except as provided in section 18-6-403 (5.7), or has a conviction as an adult and one or more adjudications as a juvenile for unlawful sexual behavior or for any other offense, the underlying factual basis of which is unlawful sexual behavior pursuant to section 16-22-103 (2), in this state or any other jurisdiction.
History
Source: L. 2002: Entire article added, p. 1176, 1, effective July 1. L. 2004: IP(1) and (2)(c) amended and (1.5) and (2)(d) added, p. 1118, 15, 16, effective May 27. L. 2008: (1)(e) amended, p. 654, 2, effective April 25; (1)(e) amended, p. 1755, 2, effective July 1. L. 2011: IP(1), (1)(d), (1)(e), and IP(2)(d) amended and (1.3) added, (HB 11-1278), ch. 224, p. 962, 7, effective May 27. L. 2012: (1.3)(a), (1.3)(b)(I), and (1.3)(b)(II) amended, (SB 12-175), ch. 208, p. 861, 100, effective July 1. L. 2013: (1)(e) amended, (SB 13-229), ch. 272, p. 1428, 5, effective July 1. L. 2017: (1)(a.5) added, (HB 17-1072), ch. 250, p. 1050, 4, effective September 1. L. 2018: (2) R&RE, (2.5) added, and IP(3) and (3)(b)(I) amended, (SB 18-026), ch. 143, p. 923, 3, effective August 8. L. 2021: (1)(e), (1.3)(b)(I), IP(3), and (3)(c) amended and (1)(g) added, (HB 21-1064), ch. 320, p. 1967, 8, effective September 1; (3)(c) amended, (HB 21-1069), ch. 446, p. 2942, 3, effective September 7; IP(1) and (1)(e) amended, (SB 21-059), ch. 136, p. 715, 31, effective October 1.
Annotations
Editor's note: (1) Amendments to subsection (1)(e) by Senate Bill 08-172 and House Bill 08-1382 were harmonized. Amendments to subsection (1)(e) by SB 21-059 and HB 21-1064 were harmonized. Amendments to subsection (3)(c) by HB 21-1064 and HB 21-1069 were harmonized.
(2) In People in Interest of T.B., 2021 CO 59, 489 P.3d 752, the Colorado Supreme Court held that mandatory lifetime sex offender registration under this act for offenders with multiple juvenile adjudications without a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the prohibition on cruel and unusual punishments under the eighth amendment of the United States Constitution.
Annotations
Cross references: For the legislative declaration in HB 21-1069 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2024, see sections 1 and 7 of chapter 446, Session Laws of Colorado 2021. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.
Annotations
ANNOTATION
Annotations
The requirement for mandatory lifetime registration on the sex offender registry for twice-adjudicated juveniles, without the opportunity for individual assessment or the ability to deregister upon demonstrating rehabilitation, constitutes cruel and unusual punishment in violation of the eighth amendment. People in Interest of T.B., 2021 CO 59, 489 P.3d 752.
Analyzing any statute under the eighth amendment involves a two-part inquiry: (1) Is the registration requirement a "punishment", and, if so, (2) is it "cruel and unusual"? People in Interest of T.B., 2019 COA 89, 490 P.3d 455, aff'd in part, rev'd in part on other grounds, 2021 CO 59, 489 P.3d 752.
With regard to the first inquiry, requiring a juvenile, even one who has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard for whether he or she poses a risk to public safety is an overly inclusive -- and therefore excessive -- means of protecting public safety. Because the lifetime registration requirement is not adequately tethered to the statute's stated nonpunitive purpose, the automatic lifetime registration requirement for juvenile offenders is excessive. And because the lifetime registration requirement is excessive in relation to its nonpunitive purpose when applied to juveniles, it operates more like a punishment. People in Interest of T.B., 2019 COA 89, 490 P.3d 455, aff'd in part, rev'd in part on other grounds, 2021 CO 59, 489 P.3d 752.
The reference to "successful completion of and discharge from a juvenile sentence or disposition" does not mean that the person must have successfully completed the person's original sentence or disposition. People in Interest of J.M.M., 2021 COA 88, 496 P.3d 833.
Individual who successfully completes a deferred judgment and sentence for sexual assault on a child is eligible to petition the court for removal from the sex offender registry. People v. Perry, 252 P.3d 45 (Colo. App. 2010).
A person is eligible to petition for removal from the sex offender registry under subsection (1)(d) only after successful completion of the deferred judgment and sentence (or deferred adjudication) and dismissal of the case. People v. Dulac, 2024 COA 14, 548 P.3d 1159.
The exception in subsection (1)(d) does not apply to a person who successfully completes a deferred judgment and sentence for a sex offense but has other outstanding convictions in the same case. People v. Dulac, 2024 COA 14, 548 P.3d 1159.
The "notwithstanding any provision" language in subsection (2.5)(a) applies to all of this section, not just to subsection (1). Therefore, a person subject to lifetime registration under subsection (3) may petition for removal pursuant to subsection (2.5)(a) and be granted a hearing. People v. Warren, 2024 COA 60, 555 P.3d 656.
A "conviction" for purposes of the bar in subsection (3)(c) does not include a successfully completed deferred judgment. McCulley v. People, 2020 CO 40, 463 P.3d 254.
Conviction on more than one charge of unlawful sexual behavior, whether adjudicated in the same case or in separate cases, renders defendant ineligible for relief from status as a sex offender and for removal from sex offender registry. Statute contains no explicit limiting language that would require "multiple convictions" to be the result of more than one proceeding. People v. Atencio, 219 P.3d 1080 (Colo. App. 2009).
A person with an out-of-state conviction for an offense comparable to sexual assault on a child in this state is not eligible to discontinue registration with this state's sex offender registry because a person who is convicted in this state of the same offense is not eligible to discontinue registration. Curtiss v. People, 2014 COA 107, 410 P.3d 539.
A person convicted of an offense outside this state that is comparable to the offenses listed in subsection (3) is not eligible to petition for discontinuation of sex offender registration. Because defendant was convicted in another state of an offense comparable to 18-3-402 (1)(e), he is not eligible to discontinue his registration requirement. Stanley v. Dist. Attorney, 2017 COA 33, 395 P.3d 1198.
The language "or to the comparable requirements of any other jurisdictions in which they may reside" in subsection (3) does not allow a person required to register here as a sex offender because of an out-of-state conviction to discontinue registration if the person is no longer required to register in the state of the conviction. Stanley v. Dist. Attorney, 2017 COA 33, 395 P.3d 1198.
Subsection (3)(c) does not impose a time limitation on convictions for unlawful sexual behavior entered on and after July 1, 1994. The reference to 16-22-103 (2) applies only to the phrase "any other offense", not to "unlawful sexual behavior". Moore v. Judicial Dist. Attorney, 2024 COA 48, 553 P.3d 900.
No exception to 10-year waiting period in subsection (1)(b). The fact that the court made sex offender registration part of defendant's probation sentence does not change the fact that defendant was also statutorily required to register as a sex offender and thus is subject to the statutory waiting period before seeking to discontinue his registration duties. People v. Sheth, 2013 COA 33, 318 P.3d 533.