Colorado: Sentencing Court May Override Sexually Violent Predator Risk Assessment Score
by Matt Clarke
The Colorado Supreme Court has held that a sentencing court may designate a person convicted of a sexual offense a Sexually Violent Predator (SVP) even if a risk assessment instrument (screening instrument) indicates that the person is unlikely to commit another sex offense. However, the sentencing court must make specific findings on the record to demonstrate the necessity of the SVP designation.
Brandon David Allen, a Colorado state prisoner, pleaded guilty to first-degree sexual assault and other charges related to breaking into his neighbor’s home, grabbing her by the throat, threatening to kill her and repeatedly raping her. After the trial court sentenced him to 20 years to life in prison, it considered whether he should be designated an SVP.
Under § 18-3-212.5(1)(a), C.R.S. (2012), an offender who was at least 18 years old at the time of committing an enumerated sexual offense against a stranger or victim with whom the offender established a relationship primarily for the purpose of sexual victimization, and is likely to recidivate based on the results of the screening instrument, can be designated an SVP. A Sex Offender Management Board (SOMB)-trained evaluator administers and scores the screening instrument, then provides the result to the trial court.
The score, which ranges from one to ten, indicates the likelihood of recidivism. It is based upon ten indicators, six of which pertain to the offender’s background and four that relate to the crime, acceptance of responsibility and degree of sexual deviancy. The only indicator scored against Allen related to admitting the crime, which he claimed not to remember.
The evaluator scored Allen as a one – below the threshold of being likely to reoffend. However, the trial court re-scored the screening instrument, determined that Allen was likely to recidivate and designated him as an SVP. Allen appealed. The Court of Appeals affirmed, and Allen’s petition for review was granted.
The en banc Colorado Supreme Court held that the trial court should not have re-scored the screening instrument, but should have substantially deferred to it. Further, if a trial court deviates from the results of the scored screening instrument, it must make “specific findings on the record to demonstrate the necessity of the deviation.”
The Supreme Court then examined the record and held that Allen’s likely “deviant sexual fantasies,” difficulty with relationships, threatening to kill the victim to avoid punishment, denial of the crime and two prior incidents in which women sought restraining orders against him made it likely that he would reoffend. Therefore, his designation as an SVP was upheld. See: Allen v. People, 2013 CO 44, 307 P.3d 1102 (Colo. 2013).
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Related legal case
Allen v. People
|2013 CO 44, 307 P.3d 1102 (Colo. 2013)
|State Supreme Court