PETER B. ALBANI IS ONE OF COLORADO’S PREMIER CRIMINAL DEFENSE ATTORNEYS. WHILE MR. ALBANI HANDLES ALL TYPES OF CRIMINAL CASES, HE ROUTINELY HANDLES ALL SEX OFFENSES INCLUDING ALL FELONY AND MISDEMEANOR SEX ASSAULTS. HE HAS SUCESSFULLY DEFENDED HUNDREDS OF SEX OFFENSE CASES AND HAS TRIED OVER ONE HUNDRED SEX OFFENSES BEFORE A JURY. IF YOU ARE CHARGED WITH SEX ASSAULT, SEX ASSAULT ON A CHILD, ENTICEMENT, INCEST, SOLICITATION, EXPLOITATION, OR POSSESSION OF PORNOGRAPHY CALL PETER B. ALBANI AT (303) 753-0900. WE CAN HELP.
I recently received the following general inquiry.
I had some general questions regarding the duty to register as a sex offender. What is the Sex Offender Registry? What crimes are covered? What are the obligations to register? Is the Court required give any advice on the duty to register?
Can someone ever Petition the Court to get off the Registry? If so, how long is the wait? Will a Petition for Removal likely be approved?
What are your thoughts on the matter?
To begin to understand sex offense registration, one must first look at the COLORADO SEX OFFENDER REGISTRATION ACT which is found in the Colorado Revised Statutes, Sections 16-22-101 – Section 16-22-115 (“The ACT”).
The Act establishes a Sex Offender Registry. The Registry is a list of Sex Offenders who have registered their names and identifying information in Colorado. The Registry is kept by the Colorado Bureau of Investigation (CBI). The CBI maintains the Registry and provides information on sex offenders to other law enforcement agencies in the State and in the Nation upon request. The Sex Offender Registry is available to the public.
Anyone who is charged with a sex offense in Colorado and is considering entering a plea bargain would be wise to know the ACT inside and out.
This article looks very briefly at the Colorado Sex Offender Registry Act. The best way to understand the ACT is read it carefully. You can also discuss the ACT with a qualified and experienced attorney.
In Colorado if you enter a “conviction” to a sex offense or are “convicted” of a sex offense at trial, you will have a duty to register as a sex offender.
If a sex offender from another State moves to Colorado, he/she will also have a duty to register.
WHAT IS A CONVICTION UNDER THE ACT?
You will need to understand what a conviction is for purposes of the ACT. The terms “conviction” and “convicted” both mean having received a verdict of guilty by a judge or a jury.
The terms also include entering a plea of guilty or nolo contendere to any sex offense.
The terms also include entering a deferred judgment and sentence (DJS) in an adult case or entering a disposition or adjudication in a juvenile case. See CRS 16-22-102(3).
A conviction can enter from basically any court of record including a federal court, a state court, a district court, a county court, a municipal court, a tribal court, and any other court of record.
UNLAWFUL SEXUAL OFFENSE AND BEHAVIOR
The ACT covers not only sex offenses but any unlawful sexual behavior. This includes any completed crimes. It also includes any attempts, any conspiracy, or any solicitation to commit a sex offense. See CRS 16-22-102(9).
The ACT contains a specific list of enumerated sex offenses. You will be very hard pressed to find any sex crime or offense that doesn’t impose a duty to register under this list. The list of sex offenses includes but is not limited to any of the following offenses:
Sexual Assault on a Child
Sexual Assault on a Child Position of Trust
Sexual Assault – Pattern of Abuse
Unlawful Sexual Contact
Enticement of a Child
Human Trafficking Offenses
Sexual Exploitation of Children
Child Prostitution Offenses
Internet sex crimes
Invasion of Privacy crimes
Public Indecency – You must register if the offense is a second offense that was committed within five years of a first offense, or if the offense is a third offense or more.
NON-SEX CHARGES WITH AN UNDERLYING SEX OFFENSE BASIS
ALSO, sex offense registration is required if the offender pleads to a non-sex related charge where there is an underlying sex offense basis. So for example, if the defendant pleads guilty or is found guilty of simple assault, he must still register if there is an underlying sex offense basis.
DUTY TO REGISTER
Here are the most common situations under the ACT where a person must register. Registration has been required in most cases since July 1, 1998.
Any person convicted in the State of Colorado of an unlawful sex offense shall be required to register as a sex offender.
Any person who was convicted in another state, another jurisdiction, in any military court, in tribal court, in any territorial jurisdiction, or in any federal court or jurisdiction of an offense that if committed in Colorado would qualify as an unlawful sex offense must register.
Any person who was released from the custody of the Colorado Department of Corrections or from a prison in any other state, after having served a prison sentence for an unlawful sex offense must register.
Any person who is convicted of an unlawful sexual offense or any other offense where the underlying factual basis involves unlawful sexual basis or behavior must register.
There are other situations and circumstances that require an offender to register.
COURT’S DUTY TO ADVISE OFFENDER
The ACT requires that the Court should advise any offender that upon entry of a plea bargain for a sex offense, or for any offense that has an underlying sex offense basis, the offender will have a duty to register.
The failure to give this advisement however does not constitute a defense to a charge of failing to register as a sex offender.
WHO DO YOU REGISTER WITH?
Under CRS 16-22-108, every person who is required to register as a sex offender shall register with a local law enforcement agency. This includes the local Sheriff or Police Department.
CAN SOMEONE EVER PETITION FOR REMOVAL? – WHAT ARE THE GENERAL TIME LIMITATIONS?
General Rule: An adult or juvenile sex offender can file a Petition for Removal from the Sex Offender Registry (“Petition for Removal”).
Exception to the General Rule: It is important to note that a Sex Offender CANNOT petition the Court for removal from the registry if he has been subsequently convicted of a second sex offense. This includes two sex offenses in the same case.
Time Periods: In most instances there are lengthy periods that must elapse before an Offender can file his Petition for Removal. These time periods do not begin to run when a plea bargain or conviction enters; rather the time periods begin to run only after a person is fully finished with his case. If you have not fully completed your case and have not completed sex offense counseling and therapy, you will not be allowed to de-register.
If the Offense qualifies as a Class 1, 2 or 3 Felony, the Offender must wait 20 years from such person’s discharge from the Department of Corrections, or from such person’s discharge from the Department of Human Services, or after such person’s release from the jurisdiction of the Court to file a Petition for Removal.
If the Offense qualifies as a Class 4, 5 or 6 Felony, or is the Class 1 misdemeanor of Unlawful Sexual Contact, the Offender must wait 10 years from such person’s discharge from the Department of Corrections, or from such person’s discharge from the Department of Human Services, or after such person’s release from the jurisdiction of the Court to file a Petition for Removal.
There is a 10 year wait rule for the former Misdemeanor charge of Sexual Assault in the Third Degree as it existed prior to July 1, 2000. See CRS 16-22-113(b).
If the Offense qualifies as misdemeanor other that the two misdemeanors noted above, the Offender must wait 5 years from such person’s final release from the jurisdiction of the Court to file a Petition for Removal.
If the Offender was required to register following a plea to an adult deferred judgment and sentence or a plea to a juvenile deferred adjudication, and the Offender has successfully completed his sentence and the case or proceeding has been dismissed, the Offender can file a Petition for Removal from the Registry unless he has been subsequently convicted of a second sex offense, or unless the Court issued an continuing the duty to register.
If a Juvenile was under the age of 18 years old when he/she committed a sex offense and if the Juvenile successfully completes his/her sentence and is discharged from the Court, and if the Juvenile has no subsequent sex offenses, or any offenses which include an unlawful sex offense basis, and there is no further court order continuing the duty to register, then the Juvenile may file a Petition for removal from the registry.
NOTE: If this all sounds complicated, please understand that is because it is. There seems to be any number of exceptions and pitfalls that can block or derail a Petition for Removal.
IS A PETITION FOR REMOVAL ALWAYS GRANTED?
THE ANSWER IS NO. KEEP IN MIND a judge does not have to automatically grant a Petition for Removal. The judge will want to hear from a number of parties including the District Attorney, the Probation Department, the Parole Officer, the Sex Offense Treatment Provider, and even the named victim. Any objection may serve to derail a Petition for Removal. If the judge feels the Offender is at risk of committing a new sex offense, the judge can deny the Petition. Whether to grant the Petition or deny same is within the sound discretion of the Court.
ATTORNEY DISCLAIMER: This Web Page article is not designed to give any specific legal advice. This web page contains the thoughts and opinions of Attorney Peter B. Albani. It does not cover any particular case. This page is designed for advertising purposes and to foster discussion between prospective Clients and Attorney Peter B. Albani. Simply reading this web page does not create an Attorney-Client relationship. Criminal law can be very complicated. The criminal law and procedures are constantly changing and this article can become outdated. Your individual case and circumstances are unique and are fact specific. You should discuss your individual case with an experienced Attorney. No promises direct or implied are made or intended by the comments included herein. To discuss your case, CALL PETER B. ALBANI AT (303) 753-0900.
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