author: Justice ERICKSON.

text:
    E.I. DU PONT DE NEMOURS & COMPANY, Petitioner-Appellee, and Colorado State Board of Assessment Appeals, Appellee, v. DOUGLAS COUNTY BOARD OF EQUALIZATION, Respondent-Appellant.
    No. 02CA0308.
    Colorado Court of Appeals, Div. II.
    Jan. 2, 2003.
    Certiorari Denied Aug. 25, 2003.

      Oreck, Bradley, Crighton, Adams & Chase, LLC, Nicole Crighton, John L. Bordes, Jr., Adam W. Chase, Boulder, Colorado, for Petitioner-Appellee.
    No Appearance for Appellee.
    J. Mark Hannen, County Attorney, Lance J. Ingalls, Assistant County Attorney, Castle Rock, Colorado; Light, Harrington & Dawes, P.C., Steve J. Dawes, Denver, Colorado, for Respondent-Appellant.
   Opinion by

Justice ERICKSON.

Pursuant to § 24-4-106(7), C.R.8.2002, the Douglas County Board of Equalization (county) appeals the Colorado State Board of Assessment Appeals' (BAA) 2001 ad valorem tax valuation of real property owned by E.L Du Pont De Nemours & Company (DuPont). We affirm.

The county filed a timely notice of appeal to review the BAA order. DuPont moved to dismiss the appeal, asserting that the county's failure to include the BAA as a party created a jurisdictional defect that required dismissal. We issued a rule to show cause. Without objection by DuPont, we permitted the county to add the BAA as a party and discharged the rule to show cause. See Colorado Interstate Gas Co. v. Property Tax Administrator, 28 P.3d 958, 959-60 (Colo.App.2000). Because the jurisdictional defect has been resolved, we now address the assessment issues on the merits.

The county determined the market value of DuPont's property on January 1, 2001, to be $2,000,386. DuPont's experts claimed that the market value on the same date was $315,000. The BAA resolved the dispute in favor of DuPont.

The DuPont property consists of 849.713 acres adjacent to the town of Louviers, Colorado. It was used by DuPont to manufacture explosives such as detraprime, dynamite, nitroglycerine, and - emulsion-type blasting agents from 1908 until 1989. The manufacturing operation contaminated portions of the property and resulted in the entry of a "Compliance Order on Consent" by the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division on September 4, 1998. The compliance order requires that DuPont clean and remediate the property and is a factor to be considered in determining value for tax assessment purposes until the remediation is complete and the conditions in the order are met. Evidence produced at the hearing established the extent of contamination and showed that the environmental remediation will cost between $4 million and $82 million. Remediation procedures have commenced, but will not be completed for many years.

I.

The issue in this case is whether the county's assessment of $2,000,386 or the BAA's assessment of $315,000 conforms to Colorado's constitutional and statutory requirements. The parties concede that the issue is one of first impression. We find no reversible error in the BAA assessment.

The BAA decision reviews both the facts and the law supporting its $315,000 assessment of the DuPont property for ad valorem tax purposes in 2001.

Our review of the BAA's decision involves a mixed issue of law and fact. See § 24-4-106(7). Matters of law are reviewed de novo. See City of Longmont v. Henry-Hobbs, 50 P.3d 906, 908 (Colo.2002).

The Colorado constitution requires that property be assessed on its "actual value" based on the "appropriate consideration of cost approach, market approach, and income approach to appraisal." Colo. Const. art. X, § 3(M(@).

The Colorado statutes require "just and equalized" current valuations "to the extent which is equitably and practically possible." Section 89-1-104(11)(a)(I1), C.R.S.2002.

Here, the three methods for valuation do not provide a clear basis for determining the actual value of the DuPont property without adjustments to address the governmental order for remediation. Both parties agree that, in an uncontaminated condition, the land would be worth between $2400 and $2600 per acre.

A.

The market value approach does not assist us because the property is contaminated, and there are no comparable sales.

The compliance order permits assignment or transfer, but imposes the irrevocable obligation on DuPont to restore the Colorado property to a clean condition and to remove the contamination from it. Any sale of the property in its current condition would require a reduction in price to accommodate loss of use of the property and the continuing controversy tied to remediation activities.

B.

The county applied the cost approach in its initial assessment of the property. It added the value of the existing structures on the property to the value of the land. The land value was based on the cost of the land in a clean condition, reduced by 80%, which resulted in the county's appraisal of $2,000,386.

The county's valuation based on costs adjustments relies heavily on the market value approach to determine land value. The adjustments made to permit a comparable sales analysis are, at best, speculative.

The 80% reduction was based on the sum of three separate deductions. First, 5% was deducted for the land that was rendered completely unusable. The county, however, also determined that an additional 470 acres, or 55%, of the property was also contaminated to a lesser degree, but made no adjustment for the contamination.

The county considered a sale where a contaminated former manufacturing site sold at 10% below market value after remediation. The county discounted 10% for the "stigma" associated with the property. The record, however, indicates that the purchaser of that property was required "to do some special foundation work" to use the property as a retail store. While it is not entirely clear why this foundation work was necessary, a possible inference is that the work was required so as to not disturb the remediation. Despite the county's argument, there is no evidence in the record that 10% will compensate the owner for the stigma attached to the formerly contaminated land.

Finally, 15% was deducted for the usable land that would be occupied as part of the remediation effort This deduction was based on the county's observation of the site, and not on any fixed standard.

C.

DuPont's valuation of the property was based upon the market and income approaches. DuPont asserts that there is no real market for former explosives plants and their land and that the current, partial lease of the property is below market value for normal leases.

DuPont, as part of the consent order, has obtained estimates of the cost to remediate the contaminated property. The low estimate of approximately $4 million, reduced to its present value over 10 years, is approximately $2.8 million. Deducting that amount from the remediated value of the land produces a negative value.

To arrive at a positive value for the property, DuPont looked to the current earnings and a nominal value for the remainder of the property as grazing land. DuPont's experts thus appraised the property at $315,000.

The BAA accepted the opinion of DuPont's experts and held that it was proper to deduct the part of the cost of remediation from the value of the land in its uncontaminated state.

IL

The question of whether the cost to cure, when mandated by a governmental entity, should be deducted from the valuation of the property for ad valorem tax purposes has not been determined by Colorado courts. In Lawrence v. Board of Equalization, 989 P.2d 232 (Colo.App.1999), a panel of this court approved a tax valuation deducting the cost to cure a contaminated well serving the taxpayers' property. However, the remediation of the well was not then mandated by a governmental order, but could have been at a later time.

The county relies on a New Jersey case that does not permit a cost to eure or remed-iate deduction. In Inmar Associates, Inc. v. Borough of Carlstadt, 112 N.J. 593, 549 A.2d 38 (1988), the owner had an obligation under the New Jersey Environmental Cleanup Responsibility Act, N.J. Stat. Ann. § 18:1K-6 to -14, to remediate property that was contaminated with tar from a prior hot tar manufacturing operation. The New Jersey court stated that it was the owners' obligation not to contaminate the property, but to remediate the contamination when, or after, it occurred. Thus, cost to cure was not deemed a basis for determining or reducing the value of the property.

In affirming the BAA's order, we conclude that the deduction of costs to cure required by governmental remediation order represents the better approach to determine the actual value of a parcel when it is clear that, even by conservative estimates, the cost of remediation is greater than the value of the property if it were in a clean condition. Our analysis is supported by the General Assembly's instructions to assess the actual value with an eye toward minimizing costs, see § 39-1-104(11)(a)(II), and by the California court's decision in Mola Development Corp. v. Orange County Assessment Appeals Board, 80 Cal.App.4th 309, 95 Cal.Rptr.2d 546 (2000).

The BAA's assessment is supported by competent evidence. See Board of Assessment Appeals v. Colorado Arlberg Club, 762 P.2d 146, 151 (Colo.1988); see also § 24-4-106(7). It is unreasonable to assume that any buyer would be willing to purchase DuPont's property and assume the cost of restoration activities to a clean condition, given the eight-fold difference between the high and low estimates of cost of remediation. Moreover, the governmental remediation order imposes an irrevocable obligation on DuPont to complete the remediation. Accordingly, we agree with the BAA that the DuPont property is for all practical purposes valueless at this time. As remediation continues, and the costs to cure become more definite, the land may eventually become salable again.

The assessment analysis and order of the BAA best satisfies the requirements of § 39-1-104(11)(a)(II) under the facts of this case.

The order of the Board of Assessment Appeals is affirmed.

Chief Judge HUME and Judge ROY concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arnold R. TRUJILLO, Defendant-Appellant.
    No. 01CA1558.
    Colorado Court of Appeals, Div. III.
    Jan. 16, 2003.
    Rehearing Denied April 24, 2003.
    Certiorari Denied Aug. 25, 2003.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Arnold R. Trujillo, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree burglary. He also appeals his sentence,. We reverse part of the restitution order and otherwise affirm.

The vietim of this burglary was awakened by a noise in his house during the early morning hours. He turned on lights in his bedroom and the adjoining hallway and saw a man standing in the doorway of the bedroom across the hall. He confronted the intruder, who soon fled the house.

The victim's next-door neighbor saw someone get out of a taxi and enter the victim's house. Approximately ten minutes later, he observed the intruder run out the front door. The neighbor followed as the intruder ran and walked through the neighborhood, but eventually lost sight of him. However, the neighbor contacted a police officer at the scene and described the intruder.

Shortly thereafter, another officer contacted defendant approximately four blocks from the victim's house. The victim and the neighbor were each escorted to that location to determine whether they could identify defendant. The victim positively identified defendant as the intruder, and the neighbor stated that defendant's height, weight, and clothing generally matched that of the man he had seen.

Defendant was convicted of second degree burglary after a jury trial. He was sentenced to twenty years in the Department of Corrections and ordered to pay restitution. This appeal followed.

L.

Defendant contends that the trial court erred in admitting evidence identifying him as the burglar because it was tainted by an unreliable and unduly suggestive one-on-one identification procedure. He argues that the procedure violated his right to due process. We disagree.

While one-on-one showups are viewed with disfavor, they are not per se violations of due process. Such a procedure may be justified where immediate identification would facilitate an ongoing criminal investigation and where the police need an immediate determination of whether they should continue searching for a suspect. People v. Mascarenas, 666 P.2d 101 (Colo.1983).

In determining whether a particular showup violates a defendant's due process rights, a court must ascertain whether, under the totality of the cireumstances, the identification was unreliable because the confrontation was unnecessarily and irreparably suggestive. The following factors are relevant in determining whether a one-on-one showup is unduly suggestive: the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention at the time of the crime, the accuracy of any prior description, the level of certainty at the showup, and the time between the crime and the identification. People v. Mascarenas, supra; People v. Young, 923 P.2d 145 (Colo.App.1995).

The constitutionality of a pretrial identification procedure is a mixed question of law and fact. While the trial court's findings of historical fact are entitled to deference, an appellate court may give different weight to those facts and may reach a different conclusion in light of the legal standard. Bernal v. People, 44 P.3d 184 (Colo.2002).

Defendant filed a pretrial motion to suppress the identification evidence. At the hearing on the motion, both the victim and his neighbor testified. The victim identified defendant as the person he had seen inside his home. The neighbor did not attempt an in-court identification of defendant.

The trial court made the following findings of fact, which are supported by evidence in the record. The victim saw the intruder in his home in a lighted area. The victim had an "excellent opportunity" to see the intruder because he was near him and paying close attention to him. The victim's description of the intruder was "generic," but he saw the intruder's face. Defendant was stopped within a few blocks of the victim's residence, and the time between "the crime and confrontation was exceedingly short." When he was brought to the location where defendant was being detained, the victim was "absolute ly certain" in his identification of defendant.

As to the neighbor, the court found that he had observed a person running from the victim's home, but never saw his face. The neighbor had given a description of that person's clothing that was similar to the clothing defendant was wearing. Like the victim, the neighbor was taken to the location where defendant was being detained. Based on the clothing defendant was wearing, the neighbor was "relatively sure" that defendant was the person he had seen running from the victim's home.

The trial court applied the correct legal standard and found that the pretrial identification procedures were not unduly suggestive. The court also found that the one-on-one showups were justified here because the police needed to determine whether defendant was the suspect or whether they should continue searching. The court determined, under the totality of the cireumstances, the identification procedures were not so imper-missibly suggestive that irreparable misiden-tification was substantially likely.

Based on our review of the record, we conclude that the trial court's findings regarding the relevant factors are supported by substantial evidence. Moreover, we agree with the trial court that under the totality of the cireumstances the identification was not unreliable because the confrontation was not unnecessarily and irreparably suggestive.

In light of this conclusion, we need not reach defendant's contention that the victim's in-court identification lacked an independent basis. See People v. Borrego, 668 P.2d 21 (Colo.App.1983).

Accordingly, the trial court did not err in admitting evidence identifying defendant as the burglar.

IL

Defendant contends that the trial court erred in admitting his statements to the police because he was in custody and had not been advised of his rights under Miranda. We are not persuaded.

For statements made during custodial interrogation to be admissible, the police must have advised the suspect of his or her constitutional rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966). Two requirements trigger the need for a Miranda advisement: the suspect must be in custody, and the statement must be the product of a police interrogation. People v. Reddersen, 992 P.2d 1176 (Colo.2000).

A defendant is in custody for the purpose of Miranda warnings if he or she was formally arrested or, based on the totality of the cireumstances, a reasonable person in the defendant's position would have felt that his or her freedom of action had been curtailed to a degree associated with a formal arrest. People v. Mangum, 48 P.3d 568 (Colo.2002). An investigatory stop is a seizure for purposes of the Fourth Amendment, but a person subject to an investigatory stop is not necessarily in custody for purposes of Miranda. People v. Young, supra.

The following factors are relevant in determining whether a suspect is in custody under the totality of the circumstances:

The time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length or mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.

People v. Thiret, 685 P.2d 193, 203 (Colo.1984); People v. Taylor, 41 P.3d 681, 692 (Colo.2002)(quoting Thiret with approval).

A trial court's determination of the historical facts surrounding a defendant's detention is entitled to deference and will not be disturbed on appeal if it is supported by competent evidence in the record. However, the determination of custody for Miranda purposes is a mixed question of fact and law, and the application of the controlling legal standard to the facts established by the evidence and found by the trial court is subject to de novo appellate review. People v. Matheny, 46 P.3d 453 (Colo.2002).

Here, the trial court found that the officer was responding to a report of the burglary when he saw defendant running a few blocks from the crime scene. The officer stopped his vehicle near defendant, but did not use his overhead lights. In a conversational tone, the officer asked defendant to come over to him, and then he asked defendant some questions about his presence in the area. The officer did not display his weapon or make any other show of force. The conversation lasted only a few minutes, and defendant was not restrained in any way. After the conversation, the officer handcuffed defendant based on a report from a fellow officer. Defendant was formally arrested after the victim identified him as the burglar.

These findings are supported by the evidence in the record. From these findings we conclude, as did the trial court, that defendant was not in custody while he was speaking with the police officer.

Defendant argues that he was in custody because the officer handcuffed him. However, this restraint occurred after defendant made his statements. "[The crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning." People v. Breidenbach, 875 P.2d 879, 887 (Colo.1994)(quoting People v. Taylor, 178 Cal.App.3d 217, 223 Cal.Rptr. 638, 645 (1986)). Thus, the handcuffs could not have had a coercive effect on defendant's decision to answer the officer's questions.

Accordingly, the trial court properly admitted evidence of defendant's statements.

TIL

Defendant contends that prosecutorial misconduct deprived him of due process and his right to a fair trial. He argues that during closing argument, the prosecutor improperly misstated the evidence and interjected his personal belief regarding the veracity of defendant's statements. We disagree.

In determining whether a prosecutor's statements constitute inappropriate argument, a trial court must determine whether the statements in all probability influenced the jury's result or affected the fairness of the proceedings. Such a determination is generally within the trial court's discretion. Harris v. People, 888 P.2d 259 (Colo.1995).

During closing argument, the prose-ecution referred to "witnesses saying that Mr. Trujillo did this," although there had been only one such witness. The prosecutor also stated that defendant "gave a story, a couple of stories which turn out not to be true," presumably referring to statements defendant made when initially contacted by the police.

We conclude that, considering the argument as a whole, the prejudice, if any, created by these comments did not result in a miscarriage of justice. See People v. Doss, 782 P.2d 1198 (Colo.App.1989)(prosecutors may draw reasonable inferences as to the demeanor and credibility of witnesses). Also, the trial court instructed the jury that closing statements should be considered only as argument and not as evidence. We presume that the jury followed these instructions. See People v. Mandez, 997 P.2d 1254 (Colo.App.1999).

Under these circumstances, defendant was not denied due process or a fair trial,. See People v. Mandez, supra.

IV.

Defendant contends that he was deprived of his right to a trial by jury because the trial court imposed an aggravated sentence pursuant to the discretionary provisions of § 18-1.8-401(6), C.R.S.2002, without the aggravating factors having been proved to a jury beyond a reasonable doubt. We disagree.

Defendant argues that the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), applies to the trial court's imposition of an aggravated sentence under § 18-1.3-401(6). However, this argument was rejected by a panel of this court in People v. Allen, 43 P.3d 689 (Colo.App.2001). See also People v. Harrison, 58 P.3d 1103 (Colo.App.2002); People v. Ramos, 53 P.3d 1178 (Colo.App.2002). We find the reasoning set forth in Allen persuasive and adopt it here.

Defendant argues that we should reject Allen in light of State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). However, this argument was also considered by a panel of this court and rejected. See People v. Rivera, 62 P.3d 1056 (Colo.App.2002). Similarly, we reject defendant's argument here.

V.

Defendant contends that the trial court abused its discretion in imposing an aggravated sentence of twenty years in the Department of Corrections. Again, we disagree.

Sentencing is a discretionary function. Because the trial court is more familiar with the defendant and the cireumstances of the case, it is accorded wide latitude in its sentencing decisions, and its conclusion will not be disturbed absent a clear abuse of discretion. People v. Eurioste, 12 P.3d 847 (Colo.App.2000).

A trial court may impose a sentence outside the applicable presumptive range only if, based on the presentence report and the evidence in the record of the sentencing hearing, extraordinary aggravating or mitigating cireumstances are present. Section 18-1.3-401(6). The fact that a sentencing court finds aggravating factors to be more compelling than any arguably mitigating factors does not constitute an abuse of diseretion or indicate that the trial court failed to consider evidence of mitigation. The cireum-stances of a crime alone may justify the imposition of a lengthy sentence. People v. Eurioste, supra.

The trial court found that an aggravated sentence of twenty years was warranted because the victim was confronted in his home during the burglary. The court also noted that the crime occurred in the middle of the night and that it had an extraordinary impact on the victim, a seventy-year-old man in "marginal health." Finally, the court found that defendant had an extensive criminal history. These findings are supported by the evidence presented at the sentencing hearing and the presentence report, which included a victim impact statement as required by § 16~-11-102(1)(a), C.R.8.2002.

Under these cireumstances, we find no abuse of discretion in the sentence imposed.

VI.

Defendant contends that the trial court erred in ordering him to pay restitution for the cost of installing a burglar alarm system in the victim's home. We agree.

The court shall award restitution if it finds that the vietim of a erime suffered a pecuniary loss. See § 18-1.3-608(1), C.R.S8.2002 (formerly § 16-18.5-103(1)(d)). - "Restitution," as applicable here, is defined as:

any pecuniary loss suffered by a victim, and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money.

Section 18-1.3-602(8)(a), C.R.S.2002 (formerly § 16-18.5-102(8)(a)).

The legislative declaration to the restitution statutes states:

(1) The general assembly finds and declares that:
(a) Crime victims endure undue suffering and hardship resulting from physical injury, emotional and psychological injury, or loss of property;
(b) Persons found guilty of causing such suffering and hardship should be under a moral and legal obligation to make full restitution to those harmed by their misconduct;
(e) An effective criminal justice system requires timely restitution to victims of crime and to members of the immediate families of such victims in order to lessen the financial burdens inflicted upon them, to compensate them for their suffering and hardship, and to preserve the individual dignity of vietims;
(2).... This part 6 shall be liberally construed to accomplish all such purposes.

Section 18-1.3-601, C.R.98.2002 (formerly § 16-18.5-101).

Restitution is intended to make the victim whole and specifically includes repayment of actual pecuniary loss the victim sustained as the direct result of the defendant's criminal conduct. "A trial court has broad discretion in determining the appropriate terms and conditions of restitution orders, and absent a gross abuse of discretion, the trial court's ruling will not be disturbed on appeal." People v. Estes, 923 P.2d 358, 360 (Colo.App.1996).

The precise extent of a victim's pecuniary loss that can be the subject of an order for restitution is difficult to define because the characteristics of victims and the nature of criminal acts are nearly unlimited. See People v. Lunsford, 43 P.3d 629 (Colo.App.2001)(insurer-viectim - entitled to restitution for amounts paid to erime victims for noneconomic damages pursuant to an insurance contract); People v. Wright, 18 P.3d 816 (Colo.App.2000)(legal expenses incurred by victim in filing replevin action to recover personal property were the direct result of defendant's criminal conduct); People v. Witt, 15 P.3d 1109 (Colo.App.2000)(department of social services entitled to restitution for employee's time spent investigating defendant's conduct, computing losses, and preparing documents for prosecution, all relating to defendant's fraudulent acquisition of food stamps); People v. Estes, supra (counseling expenses for victim's immediate family members who sustained psychological trauma as a result of defendant's eriminal conduct were compensable as restitution); People - v. - Duvall, 908 - P.2d - 1178 (Colo. of time spent by drugstore employees investigating theft of drugs from store was appropriately included in restitution award); People v. Dillingham, 881 P.2d 440 (Colo.App.1994)(reward money for information leading to the recovery of stolen property was properly included in the restitution order); People v. Phillips, 782 P.2d 1226 (Colo.App.1986)(defendant properly ordered to pay restitution for adjustment expenses, investigation costs, and attorney fees incurred by insurer-victim in processing of claim).

While a precise definition of the losses includable in a restitution order may not be possible, the definition of restitution in § 18-1.3-602(3), C.R.8.2002, places limits on what may be included. The loss must be a pecuniary loss, and it may be one specifically mentioned in that statute or some other loss or injury that is "proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." Section 18-1.3-602(8)(a).

The definition of restitution is easily applied to losses that were directly caused by an offender's conduct, such as property unlawfully taken or damaged and personal injuries inflicted by the offender. However, when the loss is attenuated from the offender's conduct, application of the definition of restitution becomes more difficult and may require more precise findings to justify the restitution order.

Here, the victim was permitted to make a statement during the sentencing hearing. He told the court,

I'm 70 years-old, and the life I'm living now is I get jittery if I hear any noise or cracks and everything. And I had to put a burglar alarm and change the locks of my doors to have peace of mind, but you don't have peace of mind when that happens to you.... I don't know, just been nerves and everything. I haven't slept too good. Like I say, new different surroundings around you, just I'm seared. Thank you. [sic]

The trial court then awarded the victim restitution for the cost of the alarm system.

The loss the victim experienced was his diminished feeling of security. This loss may be common to most victims of crime, and it is not, under ordinary cireumstances, a loss "that can be reasonably calculated and recompensed in money." See § 18-1.3-602(3)(a).

Crime victims' feelings of insecurity could have multiple causes, and the solutions they select are very subjective and potentially numerous and varied. Thus, a victim's effort to find peace of mind and a sense of personal security is attenuated from the offender's conduct. Therefore, when a victim requests restitution for such an attenuated loss, the trial court must carefully consider whether it meets the statutory definition of restitution.

Here, the trial court's findings do not support any loss by the victim other than a generalized feeling of insecurity. The trial court concluded that the burglar alarm system "is tantamount to the need for counseling." However, the court made no findings to support this conclusion. Further, the vie-tim's loss was not one specifically mentioned in § 18-1.3-602(8), and the court made no findings to show the loss was one that could be "reasonably calculated and recompensed in money." Therefore, on this record, the order for restitution of the cost of the burglar alarm system cannot stand. On remand, the trial court should reconsider the issue of restitution, make findings of fact, and determine if the victim's loss is one that falls within the definition of restitution in § 18-1.3-602(8).

The judgment and sentence are affirmed, except that the order of restitution is reversed insofar as it includes the cost of the burglar alarm system, and the case is remanded for reconsideration of the restitution order.

Judge NEY and Judge KAPELKE concur.


author: Judge ROY.

text:
    CITY AND COUNTY OF DENVER, a municipal corporation of the State of Colorado, Plaintiff-Appellee, v. EAT OUT, INC., d/b/a Ilios Restaurant, a Colorado corporation, Defendant-Appellant.
    No. 02CA0159.
    Colorado Court of Appeals, Div. III.
    Feb. 27, 2003.
    Certiorari Denied Sept. 8, 2003.

      J. Wallace Wortham, Jr., City Attorney, Kerry A. Buckey, Assistant City Attorney, Thomas Bigler, Assistant City Attorney, Denver, Colorado, for Plaintiff-Appellee.
    Appel & Lucas, P.C., Garry R. Appel, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

In this forcible entry and detainer (FED) action, defendant, Eat Out, Inc. (tenant), appeals the trial court's order granting possession to the City and County of Denver and resolving related matters. We dismiss part of the appeal and otherwise affirm.

In June 1997, tenant leased certain real property from the owner (landlord) with primary and renewal terms of ten years each. Landlord constructed a building on the property to tenant's specifications for use as a restaurant, and tenant installed leasehold improvements. The lease contained a condemnation clause that provided that the lease terminated in the event of condemnation of the property or sale under threat of condemnation.

In 1999, the Denver Art Museum, which is owned by the city and located nearby, announced a proposed expansion involving construction of additional museum space and a related parking garage on the city block occupied in part by tenant. In designing the new structures, the city decided it needed to acquire the property and authorized the acquisition of the property by negotiation or condemnation.

The city negotiated with landlord, who ultimately accepted the city's proposal and entered into a contract to sell under threat of condemnation. - Landlord then terminated the lease. Following acquisition, the city gave tenant sixty days to vacate the property.

Tenant refused to vacate and filed an action seeking damages against landlord and the city under a number of theories. The city then filed this FED action, and the two cases were consolidated.

After a hearing on the city's FED action, the trial court granted the city possession of the property and also ruled on some collateral issues relating to tenant's damages action. Tenant then filed a motion to stay the order and set bond, which was denied by the trial court. At tenant's request, its damages action was stayed pending the outcome of this appeal. Tenant vacated the premises, and the city subsequently demolished the structure.

I.

We initially agree with the city's assertion that the issue of possession is moot.

The central issue in determining mootness is whether a change in the ciream-stances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief. Zoning Board of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo.1986). An issue raised on appeal is moot if the appellate court's resolution of it would have no practical legal effect upon an existing controversy. Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo.App.2000).

Here, the order of possession determined only possession of the property and the improvements constructed on it. See Aasgaard v. Spar Consolidated Mining & Development Co., 185 Colo. 157, 522 P.2d 726 (1974). Because the improvements have been demo!-ished, meaningful relief is not possible. Accordingly, the appeal is moot as to the issue of possession. See Zoning Board of Adjustment v. DeVilbiss, supra.

Having so concluded, we need not address tenant's assertions that the lease was terminated improperly or in bad faith. However, because they may affect the damage claims still pending in the trial court and otherwise may escape review, we address tenant's assertions that the trial court erred in holding that the city was not required to enter into good faith negotiations with it as a part of the condemnation proceedings and in holding that the property was condemned for a public, not private, purpose.

IL.

Tenant asserts that the trial court erred in concluding that because tenant's lease was not recorded, the city was not required to make a good faith offer to it pursuant to § 38-1-121, C.R.8.2002. We disagree.

Our review of a trial court's interpretation of a statute is de novo. Rowell v. Clifford, 976 P.2d 368 (Colo.App.1998)

Section 38-1-121(1), C.R.S.2002, describes the property interests that a condemning authority must resolve: "As soon as a condemning authority determines that it intends to acquire an interest in property, it shall give notice of such intent, together with a description of the property interest to be acquired, to anyone having an interest of record in the property involved" (emphasis added).

Section 38-1-121(8), C.R.S.2002, provides that "[njothing in this section shall be construed as in any way limiting the obligation of the condemning authority to negotiate in good faith for the acquisition of any property interest sought prior to instituting eminent domain proceedings" (emphasis added).

Tenant argues that under § 38-1-121(8), property interests need not be recorded pursuant to § 38-35-109, C.R.98.2002, as a condition for receiving notice from and participating in negotiations with the condemning authority. Tenant argues that because the statute states that a condemning authority must negotiate with parties having an interest and the city knew of its leasehold interest, the city was thereby required to negotiate with it. We are not persuaded.

Legislative intent is first determined by looking at the statutory language itself, giving words and phrases their commonly understood meaning. Mason v. Adams, 961 P.2d 540 (Colo.App.1997). It is presumed that the legislature intended a just and reasonable result. Smith v. Zufelt, 880 P.2d 1178 (Colo.1994). When the language of the statute is plain and the meaning is clear, it should be interpreted and applied as written. Southard v. Miles, 714 P.2d 891 (Colo.1986).

Although the language of § 38-1-121(8) refers to "property interest" and not "interest of record," we must interpret the statute as a whole. See City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998). In doing so, we find that the property interests contemplated by the statute include only those that have been recorded pursuant to Colorado's property recording statute.

The language of § 88-1-121(1) is plain, and the meaning is clear when it states that notice shall be given to anyone having an interest "of record" in the property. The phrase "of record," when used in reference to real property, commonly means that the instrument creating the property interest has been recorded with the county clerk, See generally City of Lakewood v. Mavromatis, 817 P.2d 90 (Colo.1991); Collins v. Scott, 943 P.2d 20 (Colo.App.1996). Furthermore, the purpose for recording is to give notice and protect the priority of the interest. See City of Lakewood v. Mavromatis, supra.

We conclude that because § 38-1-121 establishes which property interests a condemning authority must address, the phrase "of record" as used in § 38-1-121(1) limits the scope and meaning of § 88-1-121(8). Therefore, the property interests contemplated by § 38-1-121(8) are limited to recorded interests. See City of Grand Junction v. Sisneros, supra.

Thus, although the city had actual notice of tenant's unrecorded leasehold interest, it was not required to give tenant notice of its intention to condemn, nor was it required to enter into good faith negotiations with or make a good faith offer to tenant, as a precursor to condemnation.

IIL.

Tenant also contends that the trial court erred in concluding that the city condemned the property for a valid public use and that the acquisition was necessary. Specifically, tenant argues that the city only needed a small parking garage for the art museum expansion and library parking, but planned a larger parking garage for the sole benefit of tenants of a private high-rise condominium building to be constructed on the property. We disagree.

A trial court's findings of fact will not be disturbed on appeal unless they are so "clearly erroneous as to find no support in the record." Alexander v. McClellan, 56 P.3d 102, 105 (Colo.App.2002).

Section 38-1-101, et seq., C.R.8S.2002, authorizes the exercise of the power of eminent domain, provided that the taking is necessary and its purpose is judicially determined to be a public use. See Colo. Const. art. II, § 15; Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980).

- The mere fact that private interests may be involved in some aspect of the condemnation does not defeat a public purpose or necessity. Rather, in reviewing a condemning authority's finding that a proposed taking is for a public use, the court's role is to determine whether the essential purpose of the condemnation is to obtain a public benefit. Denver West Metropolitan District v. Geudner, 786 P.2d 484, 436 (Colo.App.1989).

Here, the record supports the trial court's finding that the city condemned the property for a public use. The record shows that the city needed the property to build a parking garage, support buildings, and headquarters space for the Denver Art Museum, as well as to allow land for library expansion, all of which are valid public purposes. In addition, the city presented testimony that, while it originally planned to design the project around the property leased to tenant, it determined that the project would encroach upon that property, which therefore had to be taken. Finally, the record shows that these public purposes were not incidental and were, in fact, the essential purposes of the city's project.

Thus, while a private developer who constructs a condominium building on a portion of the property may benefit from the city's project, the record supports the trial court's determination that the condemnation of the property was for a valid public purpose and was not incidental.

Tenant also argues that the acquisition of the property was not necessary. However, while the existence of a public purpose is always subject to judicial review, the necessity of an acquisition of a specific parcel may be reviewed by a court only upon a showing of bad faith. Denver West Metropolitan District v. Geudner, supra.

For the reasons already discussed, we conclude, as did the trial court, that the city did not exercise its power of eminent domain in bad faith. Therefore, we need not separately address necessity.

The appeal is dismissed as to the grant of possession, and the order is affirmed in all other respects.

Judge DAVIDSON and Judge WEBB concur.


author: Judge MARQUEZ.

text:
    Francisco Hernandez De AVILA, Plaintiff-Appellant, v. ESTATE OF Emilio DeHERRERA, Deceased, Francis DeHerrera, as personal representative of the estate of Emilio DeHerrera, Defendant-Appellee.
    No. 02CA0355.
    Colorado Court of Appeals, Div. II.
    March 13, 2003.
    Certiorari Denied Sept. 8, 2003.

      William A. Martinez, P.C., William A. Martinez, Alamosa, Colorado; Graham Law Firm, David A. Graham, Taos, New Mexico, for Plaintiff-Appellant.
    Sutton, Melonakis & Gulley, P.A., Debra K. Sutton, Jacquelyn S. Booker, Littleton, Colorado, for Defendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge MARQUEZ.

Plaintiff, Francisco Hernandez De Avila, appeals from an amended judgment against defendant, Estate of Emilio DeHerrera (decedent), reducing the prior judgment in the sum of $613,700 plus interest to a sum of $100,000 plus interest and costs. We reverse and remand for reinstatement of the original judgment.

On March 18, 1997, plaintiff was injured in an accident while riding as a passenger in a truck driven by decedent. Because no personal representative had been appointed for decedent's estate, plaintiff filed a petition on February 16, 1999, seeking his own appointment. However, decedent's widow was ultimately appointed.

On March 3, 2000, plaintiff filed the present personal injury action. Defendant's answer asserted as an affirmative defense that "Plaintiff's claims are barred or limited by the provisions of the probate code, including but not limited to C.R.S. § 15-12-801, et seq." However, the defense was not mentioned during the trial.

Following a jury verdict, judgment was entered in favor of plaintiff, Defendant subsequently moved to vacate or amend the judgment pursuant to C.R.C.P. 59 and 60 based on § 15-12-801, et seq. The court granted the motion and reduced the amount of judgment as indicated above. In doing so, the court found as follows:

[Section 15-12-808(8)(b), C.R.9.2002,] provides that claims brought four months or more after the death of the decedent are barred except that this proceeding against the defendant, or estate or personal representative may be brought "to the limits of the insurance protection only." The ree-ord reflects that this action was brought more than four months after the death of the decedent, at which time the claim arose. The record reflects that the limits of the insurance protection in this case are $100,000.

L.

Initially, we conclude that the sixty-day period for granting the motion to amend judgment under C.R.C.P. 59(j) had expired.

Automatic denial under C.R.C.P. 59(j) is mandatory. When the court fails to rule within sixty days, the judgment becomes final, and the court loses jurisdiction. Actions taken under C.R.C.P. 59 after the sixty-day period are outside the court's jurisdiction and are void. See Driscoll v. District Court, 870 P.2d 1250 (Colo.1994).

Here, defendant filed a timely motion to vacate or amend judgment pursuant to both C.R.C.P. 59 and 60 on June 25, 2001, but the amended judgment was not signed until January 7, 2002. Therefore, the court was without jurisdiction to amend the judgment under C.R.C.P. 59.

IL.

However, we conclude the court had jurisdiction to rule under C.R.C.P. 60.

Divestiture of jurisdiction under C.R.C.P. 59 does not preclude the court from considering motions made under C.R.C.P. 60. See Canton Oil Corp. v. District Court, 731 P.2d 687 (Colo.1987)(holding that failure to rule within sixty days under C.R.C.P. 59 did not bar relief under defendants' C.R.CP. 60(b) motion where misconduct was extraordinary). Thus, defendant's motion to amend theoretically could have been granted under C.R.C.P. 60.

TIL.

Nonetheless, we conclude that relief was not warranted under C.R.C.P. 60, and the court therefore erred in amending the judgment.

C.R.C.P. 60(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect ... (8) the judgment is void ... or (5) any other reason justifying relief from the operation of the judgment.

A grant or denial of a C.R.C.P. 60(b) motion lies within the sound discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal. Davidson v. McClellan, 16 P.3d 233 (Colo.2001); Blesch v. Denver Publishing Co., 62 P.3d 1060 (Colo.App.2002).

CRCP. 60 is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary cireumstances. E.B. Jones Construction Co. v. City & County of Denver, 717 P.2d 1009 (Colo. Thus, a C.R.C.P. 60 motion generally cannot be used to cireumvent the operation of C.R.C.P. 59).

Exceptions to this rule occur when the facts of a case constitute an "extreme situation" warranting relief from judgment under C.R.C.P. 60(b)(5) or when the judgment is void. See Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062, 1064 (Colo.App.1988); see also People in Interest of J.A.U. v. R.L.C., 47 P.3d 327 (Colo.2002)(C.R.C.P.60(b) balances the preferred rule of finality of judgments and the need to provide relief in the interest of justice in exceptional cases). Therefore, defendant's claim for relief cannot be granted under C.R.C.P. 60(b)(1).

Further, C.R.C.P. 60(b)(5) has been narrowly interpreted to include only extreme situations and extraordinary cireumstances. Davidson v. McClellan, supra.

Also, where a judgment is void, relief under C.R.C.P. 60(b)(8) is mandatory because from its inception, a void judgment was a complete nullity and without legal effect. Consequently, there is no judgment the pro-pricty of which a court can review. First National Bank v. Fleisher, 2 P.3d 706 (Colo.2000).

- Here, whether relief from the original judgment was appropriate under C.R.C.P. 60(b)(3) or (5) turns on the meaning of § 15-12-803(8)(b). Defendant asserts that § 15-12-803 is a nonelaim statute and an absolute bar to enforcement of untimely claims, such as plaintiff's personal injury action, exeept to the extent of insurance limits. We conclude that § 15-12-808 is not an absolute bar, and thus, the original judgment was not void.

Section 15-12-8083, provides in pertinent part as follows:

(2) All claims against a decedent's estate which arise at or after the death of the decedent ... are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(a) A claim based on a contract with the personal representative, within four months after performance by the personal representative is due;
(b) Any other claim, within four months after it arises.
(3) Nothing in this section affects or prevents: ...
(b) To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by lability insurance

Section 15-12-8038 is a nonclaim statute, not a statute of limitations. See In re Estate of Ongaro, 998 P.2d 1097 (Colo.2000).

In cases prior to Ongaro, the supreme court had held that § 15-12-808(2) creates a jurisdictional bar to a claim untimely filed against a decedent's estate. See In re Estate of Daigle, 634 P.2d 71 (Colo.1981); In re Estate of Randall, 166 Colo. 1, 441 P.2d 153 (1968).

In Ongaro, the court addressed the one-year period under § 15-12-808(1)(a)(IID), C.R.S.2002. It concluded that § 15-12-803(1), C.R.S.2002, does not divest courts of jurisdiction over untimely claims against estates, but nevertheless interpreted that seetion to bar the enforcement of the late-filed claim against the estate there. The court reasoned that "[the General Assembly's use of the term 'barred' indicates its intent to render concepts of waiver or tolling, which are applicable to statutes of limitations, generally inapplicable to section 15-12-808(1)." In re Estate of Ongaro, supra, 998 P.2d at 1102 (emphasis added). It also held that, unlike a statute of limitations, the nonelaim statute "generally cannot be waived or tolled." In re Estate of Ongaro, supra, 998 P.2d at 1104 (emphasis added). Contrary to defendant's argument here, the supreme court did not conclude that the statute was an absolute bar.

Plaintiff argues that the court should apply the time bar created by § 15-12-8083 only when addressing the merits of the late-filed claim would delay the settlement of the estate and distribution of assets. And plaintiff asserts that there was no evidence of any delay of the settlement and distribution. We agree there was no evidence of delay.

The Ongaro court, in concluding that the plaintiffs claim was barred, noted that the rationale behind not permitting an estate's personal representative to waive the time requirement is "that the personal representative is a trustee of the estate for the benefit of its creditors and heirs, and as such cannot by his conduct waive any provision of a statute affecting their substantial rights." In re Estate of Ongaro, supra, 998 P.2d at 1104 (quoting Crowley v. Farmers State Bank, 109 Colo. 146, 152, 123 P.2d 407, 409 (1942)). "[Clourts generally have refused to toll the ... nonelaim period in order to 'expedite the orderly and exact settlement of estates of decedents. " In re Estate of Ongaro, supra, 998 P.2d at 1104 (quoting In re Estate of Randall, supra, 166 Colo. at 7, 441 P.2d at 155)(emphasis added). It further noted that "olur cases consistently have recognized the policy in favor of dismissing untimely claims brought against an estate where addressing the merits of the claims would delay the settlement of the estate and the distribution of assets to the estate's devisees, legatees, and other claimants." In re Estate of Ongaro, supra, 998 P.2d at 1104.

The supreme court went on to reason that in Ongaro, where the personal representative had been appointed within two weeks of the decedent's death and the record reflected probate court proceedings, allowing the plaintiff to go forward would impair the speedy and efficient settlement of the estate. See In re Estate of Ongaro, supra, aff'g 973 P.2d 660 (Colo.App.1998).

Relying on In re Estate of Ongaro, plaintiff argues that the language in that opinion implies that under some cireumstances the court could address the merits of an untimely claim. We agree.

Here, plaintiff filed his complaint in this personal injury action almost three years after decedent's death. However, decedent's personal representative was not appointed until after plaintiff had petitioned to be named personal representative, nearly two years after decedent's death. During this time, plaintiff was negotiating with decedent's insurance company to settle his claims. Therefore, reliance on the policy favoring dismissal over delay is unavailing here, and § 15-12-8038 does not necessarily bar plaintiff's untimely complaint or the ensuing original judgment.

Here, because defendant did not file a timely appeal of the trial court's automatic denial under C.R.C.P. 59(j) and did not allege extraordinary circumstances that would justify relief under C.R.C.P. 60(b)(5), and because § 15-12-8038 does not create an absolute bar making the original judgment void under C.R.C.P. 60(b)(8), we conclude the trial court erred in amending the judgment.

IV.

In view of our disposition, we do not address plaintiffs contentions that: (1) there was no competent evidence to support the trial court's finding on the policy limits; (2) he met the statutory deadline by presenting the claim to the insurance adjuster, who presented it to the personal representative; and (8) defendant waived the § 15-12-8083 defense by failing to specify or even raise the limitation argument before judgment was entered.

The judgment is reversed, and the case is remanded for reinstatement of the original judgment.

Judge NEY and Judge RULAND concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of C.B.B., Juvenile-Appellant.
    No. 02CA0610.
    Colorado Court of Appeals, Div. V.
    May 8, 2003.
    Certiorari Denied Sept. 8, 2003.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.
    Prendergast and Associates, Paul A. Pren-dergast, Thomas L. Hagerman, Littleton, Colorado, for Juvenile-Appellant.
   Opinion by

Judge ROTHENBERG.

C.B.B., a juvenile, appeals the trial court's order denying his motion to set aside his duty to register as a sex offender under the Colorado Sex Offender Registration Act, which is Colorado's version of Megan's Law. He also appeals the order denying his request to prohibit public disclosure of his registration information. The sole issue on appeal is whether C.B.B.'s right to procedural due process was violated because he was denied the opportunity to show he is not currently dangerous before being required to register as a sex offender. Based upon the United States Supreme Court's recent pronouncement in Connecticut Department of Public Safety v. Doe, 538 U.S. --, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), we conclude his procedural due process rights were not violated, and we affirm.

L.

In January 2002, C.B.B. pleaded guilty to acts that if committed by an adult would be sexual assault on a child, a class four felony under § 18-3-405(1), C.R.S.2002. He received a one-year deferred adjudication and was required to register as a sex offender pursuant - to - the - former - § 18-3-412.5(1)(b)(IV) and (8) of the Colorado Sex Offender Registration Act (the Act).

In March 2002, he filed the motion at issue here requesting that the trial court set aside his duty to register and also prohibit disclosure to the public of his registration information. Relying upon both the United States and Colorado Constitutions, C.B.B. contended his procedural due process rights were violated because he was not afforded the opportunity to show he is not a current risk to the community. The court denied the motion.

The version of the Act in effect at the time of C.B.B.'s adjudication, Colo. Sess. Laws 2001, ch. 199, § 18-8-412.5 at 656, has been repealed and reenacted and is now codified as § 16-22-101, et seq., C.R.8.2002. However, because C.B.B. is challenging the earlier statute, we refer to the section number then in effect.

IL

C.B.B. maintains that the Act denies procedural due process to him, and to all similarly situated sex offenders, because it does not provide a hearing to determine whether an offender is currently dangerous. We disagree.

Colorado's version of Megan's Law was enacted in response to the dangers posed by sex offenders and was intended to help communities protect themselves by giving the public limited access to information about sex offenders. See People v. Montaine, 7 P.3d 1065 (Colo.App.1999).

The Act applies to all persons convicted of an offense involving unlawful sexual behavior, and it requires those offenders to register with local law enforcement authorities upon their release into the community. Seetion 18-8-412.5(1)(a)-(b). - Offenders must provide personal information, including their names, addresses, places of employment, and any aliases or legal names used. Section 18-3-412.5(5)(a)-(b). They must reregister annually, § 18-8-412.5(8)(a)(D), and any time they change addresses or names. Section 18-8-412.5(@8)(c)(I)-(II). As relevant here, the failure to comply with these requirements is a class six felony. Section 18-3-412.5(4)(b)(I).

The Act requires local law enforcement agencies to submit this information to the Colorado Bureau of Investigation, which maintains a registry of all convicted offenders. Section 18-8-412.5(6)(a). Persons residing within the law enforcement agency's jurisdiction may obtain from the agency information concerning convicted sex offenders living in their community. Section 18-3-412.5(6.5)(b).

Disclosure of registration information is governed by § 18-3-412.5(6.5)(e), which provides in pertinent part:

Any information released pursuant to paragraph (b) or (c) of this subsection (6.5) shall include in writing the following statement:
The state sex offender registry includes only those persons who have been convicted of certain acts of unlawful sexual behavior since July 1, 1991, and who are in compliance with the sex offender registration laws. Persons should not rely solely on the sex offender registry as a safeguard against perpetrators of sexual assault in their communities. The crime for which a person is convicted may not accurately reflect the level of risk.

(Emphasis added.)

In Connecticut Dep't of Public Safety v. Doe, supra, the Supreme Court held that procedural due process did not entitle a convicted sex offender to a hearing before requiring him to register under the Connecticut version of Megan's Law. The Court found it unnecessary to determine whether registration deprived offenders of a liberty interest "because even assuming, arguendo, that [an offender] has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute." Connecticut Dep't of Public Safety v. Doe, supra, 538 U.S. at --, 123 S.Ct. at 1164, 155 L.Ed.2d at --. The Court explained that "[persons] who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme." Connecticut Dep't of Public Safety v. Doe, supra, 538 U.S. at --, 123 S.Ct. at 1165, 155 L.Ed.2d at --.

The Court stated:

In [earlier] cases ... we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that [the offender] seeks to prove-that he is not currently dangerous-is of no consequence under Connecticut's Megan's Law.... [The law's requirements turn on an offender's conviction alone-a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrants' information. Indeed, the disclaimer on the [Connecticut Department of Public Safety] Website explicitly states that respondent's alleged nondangerousness simply does not matter.
[Elven if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders-currently dangerous or not-must be publicly disclosed. Unless [the offender] can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise.

Connecticut Dep't of Public Safety v. Doe, supra, 538 U.S. at --, 123 S.Ct. at 1164, 155 L.Ed.2d at -- (citations omitted).

Here, as in Connecticut Dep't of Public Safety v. Doe, supra, C.B.B.'s current level of dangerousness is immaterial under the Act because his duty to register was triggered solely by his conviction. In fact, the accompanying information released to the public under the Act states that inclusion on the registry is based on conviction of a sex offense and that the crime for which a registrant was convicted may not reflect the current level of risk. See People v. Montaing, supra (duty to register under the Act flows directly from defendant's conviction as a sex offender).

Accordingly, we conclude C.B.B. has no procedural due process right to a hearing to prove a fact immaterial to the state's statutory scheme before being required to register as a sex offender under the Act.

We realize a state may enlarge the federal concepts of due process under its own constitutional provisions. See People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968); People v. Ramirez, 997 P.2d 1200 (Colo App.1999), aff'd, 43 P.3d 611 (Colo.2001). Given our conclusion here, however, we perceive no basis for affording C.B.B. more relief under Colo. Const. art. II, § 25 than he has under the Due Process Clause of the United States Constitution.

TIL

Because C.B.B. does not contend the Act violates principles of substantive due process, see Connecticut Dep't of Public Safety v. Doe, supra, we need not address his contentions that: (1) public disclosure of his registration information before a hearing on current dangerousness violates his protected liberty interest in reputation; (2) the Act alters his legal status by requiring him to register and keep his registration information current; (8) it alters his legal status by depriving him of a legal right to damages if false information is released to the public; and (4) it violates his property interest in employment, his right to privacy in his registration information, and his interest in family integrity.

We also do not address the applicability of § 16-22-118(1)(d), C.R.S.2002, which may provide C.B.B. with an opportunity to petition for removal from the registry after he has successfully completed the term of his deferred adjudication and his case has been dismissed. *

Order affirmed.

Judge TAUBMAN and Judge WEBB concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Daniel CAMPBELL, Defendant-Appellant.
    No. 02CA0132.
    Colorado Court of Appeals, Div. V.
    May 22, 2003.
    As Modified on Denial of Rehearing July 17, 2003.

      Ken Salazar, Attorney General, Jennifer Marylee Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Robert Daniel Campbell, appeals the order denying his motion to reconsider his sentence filed pursuant to § 17-27.7-104, C.R.9.2002. We reverse and remand with directions.

In exchange for the dismissal of four other pending counts, defendant pleaded guilty to one count of sexual assault on a child, § 18-3-405, C.R.S.2002, arising out of a sexual relationship he had with a thirteen-year-old girl. Defendant was sentenced to six years of probation.

Thereafter, defendant pleaded guilty to violating probation, and the court resentenced him to seven years in the Department of Corrections (DOC).

Defendant then filed a motion for reconsideration, pursuant to Crim. P. 85(b), which was denied by the sentencing court on the basis that the sentence was appropriate in light of the updated presentence report and defendant's behavior while on probation.

In the meantime, defendant was admitted into the DOC Regimented Inmate Training Program, otherwise known as "boot camp." After he successfully completed the program, the DOC referred defendant to the sentencing court for reconsideration of his sentence pursuant to § 17-27.7-104(2)(a), C.R.S.2002. The DOC recommended a three-year reduction in sentence. Although defendant did not file a formal motion seeking a sentence reduction at this time, the sentencing court summarily denied this "request" on the basis that defendant's previous motion for reconsideration had already been denied.

Thereafter, approximately ten months after having completed boot camp, defendant, acting pro se, filed a "Motion for Reconsideration After Completion of Boot Camp Pursuant to § 17-27.7-104(2)." Upon the court's order, the prosecution responded to the motion,. The sentencing court again summarily denied the motion "for the reasons stated" in the response. Those reasons were that: (1) the court previously denied defendant's request for sentence reconsideration; (2) although he did well in boot camp, his lack of progress in sex offender treatment meant he was still a public safety danger; (8) defendant could not be sentenced to less than five years because he had been convicted of a crime of violence; and (4) his original sentence appropriately provided transition back into the community.

L.

The People argue that the trial court did not have jurisdiction to consider defendant's motion because it was untimely. We remand for findings on this issue, including, specifically, for a determination on defendant's claim of excusable neglect.

The failure to file a Crim. P. 85(b) motion with the trial court within 120 days after the sentence is imposed is jurisdietional. Swainson v. People, 712 P.2d 479 (Colo.1986). Thus, although the People did not challenge the timeliness of defendant's motion in the trial court, the jurisdictional challenge may be raised at any time. See People v. Verbrugge, 998 P.2d 43 (Colo.App.1999).

Section 17-27.7-104(2)(a) provides that when an offender successfully completes a boot eamp program he or she "shall automatically be referred [within sixty days] to the sentencing court so that the offender may make a motion for reduction of sentence pursuant to [Crim. P. 85(b) ]." See also Keller v. People, 29 P.3d 290 (Colo.2000). Crim. P. 35(b) allows a defendant to request the court reconsider his or her sentence if such a request is made within 120 days after sentence is imposed or within 120 days after the determination of any appeal.

Because Crim. P. $5(b) provides a 120-day time limitation and § 17-27.7-104 requires that an offender complete boot camp before the DOC may refer him or her for resentenc-ing, the People argue that defendant was required to file his motion within 120 days of the date of completion of his boot camp. We agree.

The People acknowledge that § 17-27.7-104 does not contain a statute of limitations. However, because it provides that a motion to reduce sentence must be brought pursuant to Crim. P. 35(b), we conclude that a defendant must bring such a motion within 120 days after the successful completion of a boot eamp program. See People v. Morales-Uresti, 934 P.2d 856 (Colo.App.1996)(§ 17-27.7-104 expressly incorporates the provisions of Crim. P. 35(b) as the framework for considering sentence reduction for any participant in the boot camp program).

In reaching this conclusion, we acknowledge defendant's argument that Keller v. People, supra, warrants a different result. In Keller, the supreme court stated:

Although section 17-27.7-104(2)(a) references Crim. P. 85(b), our examination of this procedural rule convinces us that the process provided for under section 17-27.7-104(2) is different, both in kind and substance, from that which typically accompanies a Crim. P. 35(b) application for reduction in sentence. Notably absent from the operative provisions of the boot camp statute are the rigid time limitations set forth under Crim. P. 35(b).

Keller v. People, supra, 29 P.3d at 293 (footnote omitted). In so stating, the supreme court interpreted the first sentence of § 17-27.7-104(2)(a), which provides for automatic referral to the sentencing court within sixty days after termination or completion of boot camp. The supreme court held that a defendant was not required to file a motion pursuant to the statute within sixty days after completion of boot camp. However, the Keller court did not address whether the 120-day time limit contained in Crim. P. 85(b) applies here.

We conclude that it does, but that nevertheless, pursuant to Swainson v. People, supra, defendant must be afforded an opportunity to demonstrate excusable neglect based upon alleged ineffective assistance of his trial counsel.

Here, the DOC filed its "final submitted report" recommending a three-year sentence reduction on December 17, 1999. That report indicated that defendant would complete the boot camp program on December 30, 1999. The sentencing court then summarily denied the referral recommendation on January 10, 2000.

The record indicates that defendant's motion at issue here was filed on October 25, 2001, more than 120 days after defendant completed boot camp.

In his motion, defendant conceded that it was out of time, but he further alleged facts raising excusable neglect based on ineffective assistance of counsel. Defendant asserted that his counsel incorrectly informed him by letter that because the sentencing court had already denied his previous motion for reconsideration, "there isn't anything at this point that we can do about it."

Because the People did not raise the timeliness issue in the trial court, the sentencing court did not consider the timeliness of defendant's motion, including his claim that the vintimeliness of his motion was attributable to excusable neglect based upon the incorrect information he had received from his trial counsel. _

Although the People now assert that the erroneous information provided by defendant's counsel did not amount to excusable neglect because defendant subsequently became aware of the time limitation, the record does not reflect when defendant learned of the applicable time limits. The record contains correspondence from defendant to the trial court subsequent to his receipt of the letter from his trial counsel, but that correspondence does not reflect any awareness of the time limits contained in § 17-27.7-104 or of Keller v. People, supra. Further, in his reply brief, defendant asserts that he was not aware of the statutory provisions until shortly before he filed the pro se motion at issue here. '

Because the issue of whether defendant's delay in filing his motion was caused by excusable neglect is a question of fact, we must remand this matter to be resolved by the trial court. See Swainson v. People, supra; People v. Vigil, 955 P.2d 589 (Colo.App.1997).

Accordingly, on remand we direct the sentencing court to rule on the timeliness of defendant's motion, including his claim of excusable neglect.

IL.

In the interest of judicial economy, we consider defendant's primary contention on appeal that the sentencing court erroneously denied his motion because none of the reasons set forth in the prosecution's response supports the denial. We conclude that the record is insufficient to determine whether the sentencing court adequately reviewed defendant's motion.

Section - 17-27.7-104(2)(b), - C.R.S.2002, mandates that: "The court may not summarily deny the offender's motion without a complete consideration of all pertinent information provided by the offender, the offender's attorney, and the district attorney."

"The process for reviewing postcon-viction motions submitted in accordance with § 17-27.7-104(@)(a) is ... more extensive than the process provided for under Crim. P. 35(b). . .." Keller v. People, supra, 29 P.3d at 294. Sentencing courts are to give "special consideration" to requests for a reduction in sentence made pursuant to § 17-27.7-104. Keller v. People, supra.

Here, the summary order in the ree-ord does not reflect that the sentencing court gave "complete consideration" to the pertinent information provided by defendant as required by § 17-27.7-104(2)(a). The People concede that one of the reasons set forth in their motion and relied on by the court-that defendant was convicted of a crime of violence and thus had to serve at least five years-is inaccurate.

Further, the People argued that defendant's motion should be denied because his original Crim. P. 35(b) motion had been denied. However, reliance on this factor misapprehends the statutory purpose of § 17-277-104 to give "special consideration" to requests for sentence reduction to those who have successfully completed boot camp. Given that the DOC recommended a three-year reduction in defendant's sentence after his, successful completion of boot camp, it was incumbent on the trial court to address this recommendation specifically. While the trial court was not required to follow this recommendation, it was required to explain why it chose not to do so.

As a result, we reverse the order denying defendant’s motion, and on remand, if the trial court finds excusable neglect, we direct the court to make sufficient findings as to the basis of its ruling on the motion as required by § 17-27.7-104(2)(b) and Keller v. People, supra.

Additionally, we direct the court to address defendant’s contention that he is entitled to the appointment of counsel.

The order is reversed, and the case is remanded for further proceedings as directed.

Judge CASEBOLT and Judge NIETO, concur.


author: Judge VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven HOUCKS, Defendant-Appellant.
    No. 00CA1906.
    Colorado Court of Appeals, Div. V.
    June 5, 2003.
    Rehearing Denied July 17, 2003.
    Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Office of Jane Hazen, Jane Hazen, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge VOGT.

Defendant, Steven Houcks, appeals the sentence imposed upon his conviction for second degree aggravated motor vehicle theft. We vacate the sentence and remand for re-sentencing.

On January 10, 2000, a police officer approached a car parked, with its engine running, beside a closed convenience store. While the officer was running a computer cheek on the information he had obtained from the man in the car, the man sped off, eluding the police officers who pursued him. It was subsequently determined that the car was stolen.

Defendant was arrested the following day based on a description aired by the police and was charged with first degree aggravated motor vehicle theft and vehicular eluding. At trial, the jury was also instructed at defendant's request on the lesser included offense of second degree aggravated motor vehicle theft, Defendant was acquitted of the charged offenses and convicted of the lesser included offense.

The parties and the trial court agreed after receiving the jury verdict that the offense of which defendant was convicted was a class two misdemeanor. At the sentencing hearing, however, the district attorney took the position that, under the statute defining aggravated motor vehicle theft, defendant's offense was a class five felony because he had twice previously been convicted of offenses involving theft of a motor vehicle. Defendant objected based on lack of notice, and the court continued the sentencing hearing for one week.

At the continued hearing, defendant again objected to felony sentencing. He pointed out that the second of the two prior offenses on which the prosecution was relying was committed in December 1999, three weeks before the offense at issue here, but that he did not plead guilty to that offense until June 2000. Thus, defendant argued, the statutory provision making second degree aggravated motor vehicle theft a felony was inapplicable because he had not in fact been twice convict, ed of a motor vehicle theft offense before he committed the offense for which he was being sentenced.

The trial court disagreed and imposed the maximum presumptive range sentence for a class five felony.

On appeal, defendant argues that the trial court erred in sentencing him for a felony rather than a misdemeanor. According to defendant, the plain language of the applicable statute makes his offense a felony only if "committed by a person who has been twice previously convicted" and thus requires that both prior convictions have entered before commission of the presently charged offense. The People respond that, because both prior offenses were committed before the instant offense and both convictions entered before defendant's July 2000 trial in this case, defendant was in fact "twice previously convicted" and felony sentencing was proper. We agree with defendant.

Our goal in construing any statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the language of the statute itself, giving the words and phrases their plain and ordinary meaning. When the statutory language is clear and unambiguous, it must be interpreted as written. People v. Zapotacky, 869 P.2d 1234 (Colo.1994); People v. Trujillo, 983 P.2d 124 (Colo.App.1999).

The version of the aggravated motor vehicle theft statute applicable to offenses committed in January 2000 provided, as relevant here:

Aggravated motor vehicle theft in the see-ond degree is a class 2 misdemeanor but is a class 5 felony if committed by a person who has been twice previously convicted or adjudicated of charges separately brought and tried either in this state or elsewhere of am offense involving theft of a motor vehicle ....

Colo. Sess. Laws 1995, ch. 240, § 18-4-409(4) at 1258 (emphasis added). The statute has since been amended to replace the "previously convicted" enhancer with an enhancer based on the value of the vehicle. See § 18-4-409(4), C.R.S.2002.

The statutory language is unambiguous. It makes defendant's offense a felony "if committed by a person who has been twice previously convicted" of an offense involving theft of a motor vehicle. By its plain terms, this phrase requires that the offender have been convicted of the other offenses prior to his or her commission of the instant offense. Had the statute made second degree aggravated motor vehicle theft a felony "if committed by a person who has twice previously committed" an offense involving theft of a motor vehicle, it would support sentencing defendant for a class five felony; but the statute does not so state.

The distinction we draw here is reflected in two Colorado Supreme Court cases construing other criminal statutes.

In People v. Nees, 200 Colo. 392, 615 P.2d 690 (1980), the supreme court interpreted language in the habitual criminal statute providing that every person convicted of a felony "who, within ten years of the date of the commission of the said offense, has been twice previously convicted [of a felony]" shall be adjudged a habitual criminal. Section 18-1.3-801(1.5), C.R.S.2002. The court interpreted the phrase "twice previously conviect-ed" to refer back to "commission of said offense" and held that convictions sustained after the commission of the subject crime could not be the basis for habitual criminal counts. In so concluding, the court noted the "general rule ... that penalty enhancement statutes for repeat offenders apply only if the presently charged offense was committed after there had been a conviction of any offenses sought to be used as a basis for the penalty enhancement." People v. Nees, supra, 200 Colo. at 396, 615 P.2d at 693; see also People ex rel. VanMeveren v. District Court, 643 P.2d 37 (Colo.1982)(determinative consideration under habitual eriminal statute is whether judgments of conviction on prior felonies had been entered prior to commis-gion of substantive offense charged in pending case).

In People v. Trujillo, 631 P.2d 146 (Colo.1981), the statute under consideration provided that a person who had "been previously convicted of a felony ... based upon an offense which occurred within five years pri- or to the date of the offense for which he is being sentenced, shall not be eligible for an indeterminate sentence." See Colo. Sess. Laws 1976, ch. 98, § 16-11-101(1)(d) at 546. The supreme court rejected the defendant's argument, based on People v. Nees, supra, that the statute should be read to require conviction for the first offense before commission of the second offense. In so doing, the court distinguished Nees based on the differences in the language of the two statutes: The wording of section 16-18-101 [now § 18-1.3-801(1.5)] ties prior felony "convictions" to habitual eriminal lability. By comparison, section 16-11-101(1)(d) provides that as long as the first offense occurs before the second offense, the trial court has no jurisdiction to enter an inde-

The wording of section 16-18-101 [now § 18-1.3-801(1.5)] ties prior felony "convictions" to habitual eriminal lability. By comparison, section 16-11-101(1)(d) provides that as long as the first offense occurs before the second offense, the trial court has no jurisdiction to enter an indeterminate sentence for the second offense if the defendant had been convicted of the first offense when the sentence for the second offense is imposed. Clearly expressed legislative intent must be given effect.

People v. Trujillo, supra, 631 P.2d at 148.

Here, the clearly expressed legislative intent underlying the statute at issue is that second degree aggravated motor vehicle theft is a felony only if the person committing it had, at the time the offense was committed, been twice previously convicted of an offense involving theft of a motor vehicle.

It is undisputed that defendant had not been twice previously convicted of an offense involving motor vehicle theft when he committed the offense for which he was sentenced in this case. Accordingly, that offense was a class two misdemeanor, not a class five felony, and defendant should have been sentenced accordingly.

In light of our resolution of this issue, we do not reach defendant's remaining contentions.

The sentence is vacated, and the case is remanded with directions to resentence defendant for a class two misdemeanor and to amend the mittimus to so reflect.

Judge ROTHENBERG and Judge CARPARELLLI, concur.