v. Williamson

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 June 3, 2021

                                2021COA77

No. 19CA0879, People v. Williamson — Crimes — Unlawful
Sexual Behavior — Sexually Violent Predators — Sexually
Violent Predator Assessment Screening Instrument

     A division of the court of appeals considers whether, when

deciding to designate a defendant a sexually violent predator, a

district court errs by deferring to an evaluator’s assessment that,

based on the results of Section 3A of the 2018 Sexually Violent

Predator Assessment Screening Instrument (SVPASI), a defendant is

likely to recidivate. See § 18-3-414.5(1)(a)(IV), (2), C.R.S. 2020. The

division concludes that a district court may properly rely on such

an assessment because, before approving Section 3A, the Sex

Offender Management Board considered current research and

established standards that are evidence based. Thus, inclusion of
Section 3A in the SVPASI does not violate the requirements of the

enabling statutes. See §§ 16-11.7-101(2), -103(4)(d), C.R.S. 2020.
COLORADO COURT OF APPEALS                                         2021COA77


Court of Appeals No. 19CA0879
Jefferson County District Court No. 18CR3429
Honorable Diego G. Hunt, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Todd Louis Williamson,

Defendant-Appellant.


                              ORDER AFFIRMED

                                   Division VI
                          Opinion by JUDGE RICHMAN
                         Berger and Welling, JJ., concur

                            Announced June 3, 2021


Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Todd Louis Williamson, appeals his designation as

 a sexually violent predator (SVP) in connection with a judgment of

 conviction for attempted sexual assault on a child. We reject his

 challenges to the SVP designation and affirm the district court’s

 order designating him an SVP.

                            I.    Background

¶2    The following facts are drawn from the presentence report and

 supporting documents, as well as the affidavit supporting the arrest

 warrant. Williamson has agreed to the facts stated in the affidavit.

¶3    In 2016, a woman Williamson was dating reviewed the

 contents of one of his social media accounts. The account

 contained multiple videos depicting sexual assaults of children.

 Upon further investigation, police discovered that Williamson

 possessed hundreds of videos and images of child pornography.

 The People charged Williamson with, among other things, sexual

 exploitation of a child, a class 4 felony. § 18-6-403(3)(b.5), (5)(b)(II),

 C.R.S. 2020. He pleaded guilty to that charge and was given a five-

 year probationary sentence.

¶4    In 2018, while on probation, Williamson communicated in a

 sexually explicit manner, via social media, with a girl who told him


                                     1
 she was fourteen years old. Unbeknownst to him, he was actually

 communicating with an undercover police detective. Based on

 these conversations, and an explicit photo he sent to the purported

 victim, Williamson was charged with internet sexual exploitation

 and internet luring of a child. §§ 18-3-306(1), (3), 18-3-405.4(1),

 C.R.S. 2020. He ultimately pleaded guilty to an added count,

 attempted sexual assault on a child, a class 5 felony. §§ 18-2-101,

 18-3-405(1), C.R.S. 2020. The prosecution dismissed the remaining

 charges pursuant to a plea agreement.

¶5    Because Williamson was convicted of a sexual offense,

 Colorado’s SVP statute, § 18-3-414.5, C.R.S. 2020, required the

 district court to determine at sentencing whether he should be

 designated an SVP. As relevant here, under the statute, a

 defendant is an SVP if he (1) is eighteen years of age or older as of

 the date of the offense; (2) has been convicted of certain enumerated

 sexual offenses; (3) has committed an enumerated offense against a

 stranger or a person with whom he “established or promoted a

 relationship primarily for the purpose of sexual victimization”; and

 (4) according to the results of a “risk assessment screening

 instrument . . . approved by the sex offender management board


                                    2
 established pursuant to section 16-11.7-103(1), [C.R.S. 2020,] is

 likely to subsequently commit one or more of the [enumerated

 sexual offenses]” against a similarly situated victim.

 § 18-3-414.5(1)(a)(I)-(IV).

¶6    In evaluating whether Williamson should be designated an

 SVP, the district court considered, among other items, the results of

 a Sexually Violent Predator Assessment Screening Instrument

 (SVPASI) that was administered by a trained evaluator and

 approved by the Sex Offender Management Board (SOMB). The

 SVPASI contained three parts. If a defendant met the criteria under

 any part, SVP designation was recommended.

¶7    Under Part 3A, the evaluator was instructed to recommend

 SVP designation if a defendant had previously been convicted of at

 least one felony or two misdemeanor “sex offenses” as that term is

 defined in section 16-11.7-102(3), C.R.S. 2020. Part 3B contained

 a Sex Offender Risk Scale (SORS), an actuarial risk assessment

 scale to be completed by the evaluator. The SORS placed certain

 risk factors into an equation — namely, the defendant’s age at the

 time of his earliest sex offense and the number of prior criminal

 cases and probation revocations on his record. These factors were


                                    3
 weighted and then the equation was solved, yielding a numeric

 score. The evaluator was to recommend SVP designation only if a

 defendant scored 22 or above on the SORS. Part 3C measured

 whether a defendant met certain criteria indicating he suffered from

 psychopathy or a personality disorder, factors that also triggered an

 SVP recommendation.1

¶8    Due to Williamson’s prior sex offense conviction, he met the

 criteria for designation under Part 3A of the SVPASI, and the

 evaluator recommended that the court designate him an SVP on

 this basis. Although the screening form instructed the evaluator

 not to fill out Part 3B if a defendant met the criteria of Part 3A, the

 evaluator did so. Williamson scored only a -3.060 on Part 3B, well

 below the threshold for designation. Further, Williamson did not

 meet the criteria for designation under Part 3C.

¶9    Deferring in part to the evaluator’s recommendation under

 Part 3A, the district court designated Williamson an SVP.

 Williamson objected to the designation, and the court invited him to



 1 Williamson was evaluated under the 2018 SVPASI. The current
 SVPASI retains this format, and categorizes prior sex offenses as a
 standalone factor that may trigger SVP designation.

                                    4
  file a motion for reconsideration. Several months later, he did so.

  In his motion, he challenged the court’s deference to the evaluator’s

  recommendation in Part 3A of the SVPASI, arguing that his single

  prior conviction for a sex offense is an unreliable measure of his

  tendency to recidivate, especially where he received a low score on

  Part 3B of the SVPASI. The court denied the motion, noting that “it

  is not within the purview of this court to determine the validity of

  the methodology of the risk assessment . . . .”

¶ 10   On appeal, Williamson renews the arguments he made below.

  He asserts that the district court erred, and violated his right to due

  process, by relying on Part 3A of the SVPASI. He further argues

  that even if the district court’s designation was proper, SVP

  designation violates constitutional prohibitions on the imposition of

  cruel and unusual punishments. See U.S. Const. amend. VIII;

  Colo. Const. art II, § 20.

       II.   The Court Did Not Err By Relying on the Evaluator’s
                 Recommendation in Part 3A of the SVPASI

                           A.   The SVP Statute

¶ 11   Williamson’s challenge to the statutory validity of Part 3A of

  the SVPASI requires that we construe the SVP statute. The proper



                                     5
  interpretation of a statute is a legal question that we review de

  novo. Allen v. People, 

, ¶ 4.

¶ 12   When we construe a statute, we focus on its plain language.

  People v. Gallegos, 

, ¶ 7. We attempt to discern and

  give effect to the General Assembly’s intent. 

 In doing so, we

  must be careful not to impute new meaning to the language. People

  v. Gholston, 

, 7 (Colo. App. 2000). Whenever possible, we

  must give all the language in the statute “consistent, harmonious,

  and sensible effect.” Gallegos, ¶ 7 (quoting People v. Banks, 

, 1127 (Colo. 2000)). Accordingly, we read statutory words and

  phrases in their full context and afford them their common

  meaning. 

 We avoid statutory constructions that conflict with

  the legislative intent. People v. Brosh, 

, 459 (Colo.

  App. 2010).

¶ 13   The SVP statute is part of an enactment by which the General

  Assembly sought to “create a program that establishes evidence-

  based standards for the evaluation, identification, treatment,

  management, and monitoring” of sex offenders to prevent them

  from reoffending and to protect current and potential victims.

  § 16-11.7-101(2), C.R.S. 2020 (emphasis added). To that end, the


                                     6
  General Assembly created the SOMB and tasked it with consulting

  on, approving, and, as necessary, revising a “risk assessment

  screening instrument” to “assist the sentencing court in

  determining the likelihood that an adult sex offender will”

  recidivate. § 16-11.7-103(4)(d). When carrying out its duties, the

  SOMB is statutorily required to “consider research on adult sex

  offender risk assessment” and the risk posed by defendants that

  suffer from psychopathy or a personality disorder. Id. (emphasis

  added); Allen, ¶ 32 (Márquez, J., concurring in the judgment). The

  incorporation of evidence-based standards into the recidivism prong

  of the SVP designation standard demonstrates the General

  Assembly’s intent to limit SVP designations only to those

  defendants that pose a high level of risk to the community. Allen,

  ¶ 32 (Márquez, J., concurring in the judgment).

¶ 14   The statute instructs courts considering an SVP designation to

  “make specific findings of fact and enter an order concerning”

  whether a defendant is an SVP based on the results of the SOMB

  assessment instrument. § 18-3-414.5(2). While the district court

  makes the ultimate SVP designation, our supreme court has stated

  that the results of the assessment instrument “should serve as the


                                    7
  primary aid” to the district court and has instructed courts to give

  substantial deference to the recommendation in the SVPASI. Allen,

  ¶ 15. If a court chooses to deviate from the SVPASI, it must make

  specific findings to justify its deviation. Id. It should not re-score

  the instrument. Id. at ¶ 16. Moreover, even if the court does not

  deviate from the SVPASI’s recommendation, it should make findings

  concerning each of the four criteria set forth in section

  18-3-414.5(1)(a), which lays out the standard for SVP designation.

  People v. Loyas, 

, 512 (Colo. App. 2010), overruled in

  part on other grounds by Page v. People, 

.

¶ 15   In light of this statutory language as it has been construed by

  Colorado courts, Williamson argues that any valid SOMB risk

  assessment screening instrument must (1) assist the sentencing

  court to determine the likelihood that a defendant will recidivate; (2)

  consider research on adult sex offender risk assessment; and (3)

  establish evidence-based standards for evaluation and identification

  of SVPs. However, according to Williamson, neither the SVPASI nor

  the handbook used by evaluators to administer it asserts or even

  strongly implies that the standard used in Part 3A is a research-

  and evidence-based metric that assists the court with its recidivism


                                     8
  analysis. Accordingly, Williamson argues, Part 3A is a statutorily

  invalid method of assessing the likelihood of recidivism and the

  court erred in relying on it instead of the actuarial assessment

  contained in Part 3B.

¶ 16   Although this contention is not without some merit, and it

  would have been preferable for the SOMB to explicitly set forth the

  evidence it relied upon with respect to Part 3A, we decline

  Williamson’s invitation to engraft the SVP statute with a

  requirement that each part of the SVPASI, or the handbook

  addressing that part, must specifically identify the research and

  evidence upon which it is based. The plain language of the SVP

  statute simply does not indicate that there is any such requirement.

  Gholston, 

 (noting that we must not impute new

  meaning to statutory language). The other relevant statutes require

  only that the SOMB consider research regarding risk assessment

  and that it establish standards that are evidence based before it

  approves the SVPASI. §§ 16-11.7-101(2), -103(4)(d). Further,

  nothing in section 18-3-414.5(1)(a) or sections 16-11.7-101(2)

  and -103(4)(d) indicates that the legislature meant to require the




                                    9
  SOMB to limit the screening instrument to a scored component like

  the SORS.

¶ 17   Further, it is evident that the SOMB considered relevant

  research and established standards based on that research when it

  created and approved the SVPASI. Williamson was evaluated using

  the SOMB’s 2018 SVPASI Handbook, https://perma.cc/6689-LUYA.

  According to the handbook, the SVPASI administered to Williamson

  “identifies those individuals most likely to commit a subsequent

  sexual or violent offense.” Id. at 1. Logically, this pronouncement

  includes Part 3A.

¶ 18   The handbook also describes the research study conducted in

  connection with Part 3B, the SORS. It describes a study of 4,698

  adults convicted or given a deferred judgment for an SVP-eligible

  crime in Colorado during a certain period. It notes that “[e]xcluded

  from [the study] were those individuals with one prior adult felony

  sex offense conviction or two misdemeanor sex offense convictions

  because these individuals will quality for SVP eligibility [under Part

  3A].” Id. at 16-17. It further notes, however, that “actuarial

  methods are limited because offenders in any study group may vary

  on factors not measured” and “[t]he research literature is quite clear


                                    10
  that criminal history,” among other factors, is a “relevant and

  statistically powerful” indicator of risk. Id. at 19. While the

  handbook discusses this evidence in support of the SORS, the

  research nonetheless supports the SOMB’s decision to include prior

  sexual offense criteria in the SVPASI. These statements show that

  the SOMB considered research on the significance of criminal

  history before deciding to place separate emphasis on prior sex

  offenses.

¶ 19   Moreover, as Williamson points out, when the SOMB voted to

  use the applicable version of the SVPASI, it extensively discussed

  the wisdom of separating the assessment of defendants with prior

  sex offenses from the assessment of those who may meet other risk

  criteria under the SORS. According to the minutes of the first

  meeting where the significance of Part 3A was discussed, SOMB

  members explicitly considered whether keeping Part 3A would make

  the SVPASI more empirically validated and would be a valid

  indicator of risk. SOMB, Minutes of Meeting (Sept. 16, 2016),

  https://perma.cc/TYB5-Y8NE. At the following meeting, several

  board members stated that after further investigation, they

  concluded that sex offense history “is one of the strongest risk


                                    11
  factors there is” and is a “clear” or “key” indicator of risk. Another

  board member noted that Part 3A is a policy component of the

  SVPASI “based on research that will affect the actuarial scale” and

  that if Part 3A was included in the actuarial assessment in Part 3B,

  the SVPASI “will not capture the data in the same way as 3A.”

  SOMB, Minutes of Meeting 3 (Oct. 21, 2016),

  https://perma.cc/UE2Y-GQYJ. Thus, based on the handbook and

  the SOMB meeting minutes, it is apparent that the SOMB

  considered current research when creating and approving the

  SVPASI, and that it used that research to craft evidence-based

  standards.

¶ 20   We conclude that the SVPASI met the relevant statutory

  requirements and the district court did not err by deferring to the

  evaluator’s recommendation under Part 3A of the SVPASI.

                            B.    Due Process

¶ 21   Williamson further contends that the district court’s reliance

  on Part 3A of the SVPASI violated his right to due process.

  Although the contours of Williamson’s due process argument are

  not entirely clear, we understand his argument to be that an SVP

  designation must be based on reliable, nonspeculative evidence,


                                    12
  and no such evidence was presented here. People v. Tuffo, 

, 1231 (Colo. App. 2009). According to Williamson, the court’s

  only finding with respect to his tendency to recidivate was that he

  had a prior sex offense conviction. He asserts that this evidence

  has only speculative value.

¶ 22      Whether the district court correctly applied the statute and

  made the proper findings when it designated Williamson an SVP are

  mixed questions of fact and law. Allen, ¶ 4. We defer to the court’s

  factual findings if they are supported by the record but consider

  any legal conclusions de novo. Id.; People v. Salas, 

,

  ¶ 48.

¶ 23      As we noted above, supra Part II.A, it is within the SOMB’s

  purview to determine which risk factors will be included in the

  SVPASI, and what weight each factor will be given, as long as the

  SOMB has considered research and incorporated evidence-based

  standards. § 16-11.7-103(4)(d). For that reason, we do not deem a

  prior sex offense conviction to be too speculative to support the

  district court’s findings and conclusions regarding potential

  recidivism.




                                      13
¶ 24   Further, the record does not support the assertion that the

  district court found only that Williamson had a prior conviction for

  a sex offense. At the sentencing hearing, the judge made the

  following findings and conclusions based on the presentence report,

  which included both the results of the SVPASI and a Sex Offense

  Specific Evaluation: (1) the crime at issue included aggravated

  circumstances because it involved a “second felony for a second sex

  offense which [Williamson] committed while he was on the highest

  level of supervision” in his prior case; (2) consequently, he “was

  found to have a high degree of risk for sexual re-offense”; (3) given

  the “risk to the community and the risk of re-offense,” Williamson

  would not be given another probationary sentence; (4) Williamson

  met the SVP statute’s criteria because he was over age eighteen at

  the time he committed the enumerated offense, the victim was a

  stranger, and he had a prior sex offense conviction; and (5) he

  should be designated an SVP. Thus, in addition to finding that

  Williamson had a prior sex offense conviction, the court specifically

  found that he was a risk to the community and would likely

  reoffend.




                                    14
¶ 25     A court does not violate due process principles when it adopts

  the findings of the presentence report, including the

  recommendations of the SVPASI. People v. Torrez, 

,

  ¶ 83; People v. Buerge, 

, 370 (Colo. App. 2009). This is

  particularly so where the facts relied on, including Williamson’s

  prior conviction, are undisputed. Tuffo, 

 (noting

  that a sentencing court may rely on uncontroverted facts in the

  presentence report). We discern no due process violation.

       III.   SVP Designation Is Not Cruel and Unusual Punishment

¶ 26     Finally, Williamson argues that his SVP designation

  constitutes a cruel and unusual punishment, and it is therefore

  prohibited under the United States and Colorado Constitutions. We

  are not persuaded.

¶ 27     Because Williamson raises a question of constitutional law, we

  review his challenge to the SVP statute de novo. People v.

  McCulloch, 

, 1268 (Colo. App. 2008).

¶ 28     Our supreme court has stated that “[u]nlike a criminal

  sentence, the SVP designation is not punishment.” Allen, ¶ 7.

  Instead, its purpose is to protect the community through

  notification and registration requirements. § 16-22-108(1)(b), (d)(I),


                                    15
  C.R.S. 2020; §§ 16-13-901 to -906, C.R.S. 2020; Allen, ¶ 7; Tuffo,

  

 (noting that the “SVP statute is protective rather

  than punitive”). Because an SVP designation is not a punishment,

  constitutional provisions prohibiting cruel and unusual

  punishments do not apply. See, e.g., People in Interest of J.O., 

, ¶¶ 21, 30; People v. Rowland, 

, 892 (Colo.

  App. 2009) (“Like numerous other courts, we conclude that, under

  the [relevant] factors, [the defendant] has not been subjected to

  additional punishment.”); People v. Stead, 

, 120 (Colo.

  App. 2002) (holding that because the lifetime registration and

  internet posting requirements associated with SVP designation are

  not punishments, the constitutional guarantee of trial by jury does

  not apply to SVP designation), overruled in part on other grounds by

  Candelaria v. People, 

. Accordingly, Williamson’s SVP

  designation did not violate his constitutional right to be free from

  cruel and unusual punishments.

                             IV.   Conclusion

¶ 29   The district court’s order designating Williamson an SVP is

  affirmed.

       JUDGE BERGER and JUDGE WELLING concur.


                                    16