By Grant Miller . . . Attorney Colleen Kelley was our special guest on our most recent NARSOL In Action held August 15th. We focused on the section of Colorado law that permits a person to petition for deregistration and the case of Millard v. Rankin which is pending in the United States Court of Appeals for the 10th Circuit.
Anyone convicted of more than one count is ineligible, regardless of whether it’s two or more misdemeanor or felony convictions, or a combination of the two, from the same case. In addition, certain convictions will exclude a person from eligibility. These include incest, aggravated incest, and being convicted as an adult of sexual assault of a child while in a position of trust, such as having a familial relationship or a doctor-patient relationship. A sexually violent predator (SVP) designation will also make it impossible to deregister.
Once eligibility is established, a specified amount of time must be spent on the registry before a petition can be filed. Individuals with a Class 1, 2, or 3 felony are required to be on the registry for 20 years. Those with a Class 4, 5, or 6 felony or a Class 1 misdemeanor must register for 10 years, and those with any other misdemeanor have a mandated 5-year registration period. Keep in mind that the proscribed waiting period begins after the sentence has been served, including parole and probation. If the sentence was deferred, one can apply immediately after successful completion and dismissal of the case. If the person was under 18 years of age at the time of adjudication, he or she can also apply after successful completion and discharge from the sentence. However, there is an exception. If a person is convicted of human trafficking and can prove that he or she was also being trafficked, he/she is immediately eligible for deregistration without waiting the specified time.
If the conviction occurred in Colorado, petitions are filed in the court of conviction. The same judge will oversee the deregistration petition if he/she is still on the bench. For out-of-state, federal, and military convictions, the petition is filed in the county of residence. Colorado considers eligibility by comparing the out-of-state offense to Colorado’s statutes to find the one that is the most similar. Once that analysis is complete, a determination can be made in terms of eligibility to petition. Generally speaking, any time that was spent on the registry in the other state(s) will be recognized by Colorado.
If you think you are eligible, NARSOL strongly urges that you proceed with the advice and assistance of an attorney such as Ms. Kelley. This is especially critical for out-of-state petitioners because the task of comparing statutes can be extremely complicated. While you can represent yourself, it is not recommended because pro se litigants will be held to the same standards as an attorney and be expected to produce all the necessary paperwork. Keep in mind that most judges are not eager to grant deregistration, so they will search for any mistake, such as procedural or technical ones. An added benefit of hiring an attorney is that the attorney can more effectively communicate with the prosecutor and others involved in the case, which is important in learning how they feel towards your petition. If the petition is denied, a person can file another petition literally the next day. Of course, the same judge will oversee the proceedings, which means the result is unlikely to change. If the petition is denied because you have not waited the necessary amount of time, simply wait until you are eligible. If the petition is denied for a more substantive reason, consider filing an appeal or find new supporting documents or testimonies, including that from the victim.
According to Ms. Kelley, the cost for an attorney can range between $3,000 to $5,000, and the average cost of receiving a psycho-sexual evaluation is about $2,500. A favorable psycho-sexual evaluation will be extremely beneficial in the deregistration process. One of the criteria used in the evaluation of the petition is the amount of risk one poses to the community. Other criteria include alcohol and drug abuse – treatment records are presented either by the petitioner or the prosecuting attorney — and completion of the Sex Offender Treatment Program (SOTP).
Millard v. Rankin Highlights
The Millard v. Rankin case was a civil case filed in the United States District Court for the District of Colorado. The plaintiffs alleged that the registry violated the 8th and 14th Amendments as it applied to them. Judge Richard Matsch, the presiding district judge, found that the registry is indeed punitive, that it ostracizes registered citizens and causes harassment. Currently, the case is on appeal in the United States Court of Appeals for the10th Circuit. This is the last level of appellate review before the Supreme Court of the United States. Ms. Kelley expects that Colorado will ask the Supreme Court to grant review if Judge Matsch’s decision is affirmed. The plaintiffs are still required to register today but they can come back and asked for supplemental relief if the 10th Circuit affirms Judge Matsch because no injunctive relief was granted.