23CA1871 Peo in Int of SMH 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1871

Mesa County District Court No. 17JD77

Honorable Lance P. Timbreza Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of S.M.H.,

Juvenile-Appellant.

ORDER AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Graham* and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney

General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Kara L. Smith, Deputy State

Public Defender, Grand Junction, Colorado, for Juvenile-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 S.M.H. appeals the district court’s order denying her motion to

expunge records related to one of her misdemeanor adjudications

that occurred while she was a juvenile. We affirm but on different

grounds than those relied on by the district court. See People v.

Dyer, 2019 COA 161, ¶ 39 (“[A]n appellate court may affirm a lower

court’s decision on any ground supported by the record, whether

relied upon or even considered by the trial court.”).

I. Background

¶ 2 S.M.H. has several juvenile adjudications that are relevant to

the resolution of this appeal. These cases were ultimately resolved

through a global disposition.

A. Mesa County Case No. 16JD5012

¶ 3 In June 2016, S.M.H. was charged with one count of assault

in the third degree and one count of criminal attempt to commit

assault in the third degree. In October 2016, to resolve three cases

— Mesa County Case Nos. 16JD5012, 16JD54, and 16JD32 —

S.M.H. pled guilty to one count of third degree assault from Case

No. 16JD5012 and one count of second degree assault from Case

2

No. 16JD32.

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eighteen months of probation. In February 2017, the court revoked

probation and reinstated a new probation term of eighteen months.

B. Mesa County Case No. 17JD32

¶ 4 In March 2017, police were dispatched to Hilltop Youth

Services after S.M.H. threw a glass plate at another individual.

Subsequently, the prosecution filed a petition in delinquency

charging S.M.H. with one count of assault in the second degree and

one count as a violent juvenile offender.

¶ 5 While on probation and placed with her foster mother, S.M.H.

failed to appear for a probation appointment (one of the counts

alleged in the complaint for revocation filed in Mesa County Case

No. 16JD5012). When a caseworker from the Department of

Human Services went to the home to conduct a wellness check, the

caseworker found the foster mother dead, and S.M.H. “implicat[ed]

herself in the attack and the murder.”

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We take judicial notice of the record in the related appeal in this

court, Case No. 23CA1861, regarding S.M.H.’s record expungement

request in Mesa County Case No. 16JD5012. See People v. Sa’ra,

117 P.3d 51, 56 (Colo. App. 2004) (“A court may take judicial notice

of the contents of court records in a related proceeding.”).

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¶ 6 As a result, in April 2017, the probation department filed a

petition for revocation of probation based on new criminal offenses

as charged in Mesa County Case No. 17JD32.

C. Mesa County Case No. 17JD77

¶ 7 Originally, Mesa County Case No. 17JD77 was filed as Pueblo

County Case No. 15JD260. In November 2016, S.M.H. pled guilty

to one count of third degree assault in Pueblo County Case No.

15JD260 in exchange for dismissal of Pueblo County Case Nos.

15JD264 and 16JD11. The court sentenced S.M.H. to twelve

months of supervised probation. In March 2017, venue for this

case was transferred to Mesa County, and the case was henceforth

identified as Case No. 17JD77.

D. Global Disposition

¶ 8 In August 2017, S.M.H. entered into a global disposition that

was filed in Mesa County Case No. 16JD5012. The disposition

resolved and Mesa County Case Nos. 16JD32, 16JD5012, 17JD32,

and 17JD77.

¶ 9 S.M.H. pled guilty to

• second degree assault from Mesa County Case No. 17JD32;

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• second degree murder from Mesa County Case No. 17JD32;

and

• probation violations from Mesa County Case Nos. 16JD32,

16JD5012 and 17JD77.

She also agreed to crime of violence and aggravated juvenile

offender sentence enhancers, which adjudicated her as a repeat,

mandatory, and aggravated juvenile offender.

¶ 10 Based on the plea agreement’s terms specific to Mesa County

Case No. 17JD32, S.M.H. agreed to be (1) sentenced to five years for

the second degree assault offense and five years for the second

degree murder offense, with the sentences to run consecutively for a

total of ten years; (2) held in the custody of the Division of Youth

Services (Division); and (3) sentenced to two years in the custody of

the Division for Mesa County Case Nos. 16JD32, 16JD5012, and

17JD77 and, all to run concurrently with the sentences in Mesa

County Case No. 17JD32.

E. Expungement Request

¶ 11 On June 9, 2023, the Division filed an expungement report

and discharge memo stating that it could no longer retain custody

of S.M.H. as she had turned eighteen years old, and she had been

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transferred to the custody of the Department of Corrections (DOC)

to complete her ten-year sentence in Mesa County Case No.

17JD32. Three days later, the district court announced that it

would not take action on the expungement report because S.M.H.

continued to serve a sentence.

¶ 12 In September 2023, S.M.H. filed a motion to expunge her third

degree assault conviction in Case No. 17JD77. The court denied

the motion “for the same reasons stated in [the] order issued in

16JD5012.” Specifically, in Mesa County Case No. 16JD5012, the

court concluded that S.M.H. is not eligible to petition for record

expungement until at least thirty-six months after discharge of her

sentence. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).

¶ 13 S.M.H. appeals the district court’s order denying her relief.

II. Standard of Review

¶ 14 S.M.H.’s contention requires us to interpret section 19-1-306,

C.R.S. 2023, which deals with expunging juvenile delinquent

records. Statutory interpretation is a question of law that we review

de novo. People v. Weeks, 2021 CO 75, ¶ 24.

¶ 15 Our goal in interpreting a statute is to ascertain and give effect

to the General Assembly’s intent. People v. Vidauri, 2021 CO 25,

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¶ 11. To do so, we look first to the statute’s language. Mosley v.

People, 2017 CO 20, ¶ 16. But we do not consider the statute’s

words or phrases in isolation. Rather, we consider the relevant

statutory text as a whole, interpreting it in a way that gives

consistent, harmonious, and sensible effect to all its parts. Id. If,

after doing all this, we conclude that the “statute is clear and

unambiguous, we give effect to its plain meaning and look no

further.” Cowen v. People, 2018 CO 96, ¶ 12; see § 2-4-203, C.R.S.

2023.

III. Analysis

¶ 16 S.M.H. contends that the district court erred by denying her

motion to expunge her misdemeanor assault conviction in Mesa

County Case No. 17JD77 because (1) the prosecutor and victim

failed to file an objection within thirty-five days of the Division

submitting its expungement report, as required by section 19-1-

306(5)(d); and (2) she was not adjudicated an aggravated, violent, or

repeat offender in the case in which she seeks to expunge records.

As her arguments are interrelated, we address them together.

¶ 17 The statutory requirement that the prosecutor or victim timely

file an objection to an expungement request, or else the district

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court must expunge the records, does not apply to S.M.H. Under

the statute, at the end of the agency’s term supervising the juvenile,

it shall “prepare a report and summary of supervision outlining the

performance of the juvenile while under supervision.” § 19-1-

306(5)(c)(I). Because the Division no longer supervised S.M.H. and

she was transferred to DOC, the Division filed the report with the

court.

¶ 18 If neither the prosecutor nor victim files an objection within

thirty-five days after the report is filed, “the court shall order all

records in the juvenile delinquency case in the custody of the court,

and any records related to the case and charges in the custody of

any other agency, person, company, or organization, expunged.”

§ 19-1-306(5)(d). But S.M.H. reads this provision in isolation and

ignores the rest of the statute.

¶ 19 The expungement statute has different procedures depending

on the severity of a juvenile’s adjudications. Section 19-1-306(6)(e)

delineates that a juvenile may not qualify for expungement under

subsections (4) or (5), and that each subsection has different

requirements. That same provision indicates that a juvenile might

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not be qualified for expungement at all if the juvenile falls under the

provisions of subsection (8).

¶ 20 Section 19-1-306(8), states that, “[n]otwithstanding

subsections (4), (5), and (6) of this section, a court shall not expunge

the record of a person who is,” among other things, “[a]djudicated as

an aggravated juvenile offender pursuant to section 19-2.5-1125(4)[,

C.R.S. 2023,] or as a violent juvenile offender pursuant to section

19-2.5-1125(3),” or has committed “homicide and related offenses

pursuant to part 1 of article 3 of title 18.” § 19-1-306(8)(a)-(b)

(emphasis added).

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¶ 21 Under section 19-2.5-1125(4), a juvenile offender is an

aggravated juvenile offender if they are adjudicated a juvenile

delinquent for a delinquent act “that constitutes a class 1 or class 2

felony.” § 19-2.5-1125(4)(a)(I). And under section 19-2.5-1125(3), a

juvenile is a violent juvenile offender if they are adjudicated a

juvenile delinquent for a delinquent act “that constitutes a crime of

violence as defined in section 18-1.3-406(2)[, C.R.S. 2023].” § 19-

2

At the time of S.M.H.’s guilty pleas, section 19-2.5-1125(3), (4),

C.R.S. 2023, was contained in section 19-2-516(3), (4), C.R.S. 2017.

There are no substantive changes in the statutory provisions.

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2.5-1125(3). Regarding part 1 of article 3 of title 18, as pertinent

here, a person commits second degree murder if they “knowingly

cause[] the death of a person.” § 18-3-103(1)(a), C.R.S. 2023.

Because S.M.H. was adjudicated as an aggravated and violent

offender and pled guilty to murder, subsection (8) is implicated.

¶ 22 Thus, the requirements set forth in subsection (5) do not apply

to S.M.H. — meaning that the requirements that the prosecutor or

victim timely file an objection to S.M.H.’s request or the court must

expunge the records under section 19-1-306(5)(d) is irrelevant to

S.M.H.’s request. See § 19-1-306(8)(a)-(b); Mosley, ¶ 16, Cowen,

¶ 12.

¶ 23 But S.M.H. argues that her expungement request falls under

subsection (5), which ostensibly means that subsection (8) does not

apply. This is because, she continues, she was not adjudicated a

violent or aggravated juvenile offender, nor did she commit murder,

for purposes of the specific misdemeanor adjudication she seeks to

expunge from Mesa County Case No. 17JD77. But S.M.H. ignores

the fact that her multiple criminal adjudications were resolved by a

global disposition. For four reasons, we reject S.M.H.’s isolated

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approach to expunge only certain records but not others that are

part of a global disposition.

¶ 24 First, S.M.H. was given the benefit of the bargain with the

global disposition, meaning that she cannot separate her various

cases because she assumed the risk that the proceedings for all the

cases would be considered together in the future.

¶ 25 Second, the district court revoked probation in Mesa County

Case No. 17JD77 — the case in which she seeks to expunge her

misdemeanor — and the court imposed new sentences as part of

the global disposition.

¶ 26 Third, S.M.H. does not explain how, when there is a global

disposition, a court can expunge only parts of a juvenile

adjudication when the non-expunged portions of the global

disposition remain public or accessible.

¶ 27 Finally, section 19-1-306(8) refers to a court’s lack of authority

to expunge “the record of a person”; it does not delineate that a

court may parse out particular adjudications for expungement, even

if the person was adjudicated as one of the types of offenders listed

in subsection (8) in a different case number that was resolved in a

global disposition. (Emphasis added.)

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¶ 28 So based on the plain language of section 19-1-306(8), a court

“shall not” expunge the record of S.M.H. because she has been

adjudicated as an aggravated juvenile offender, as a violent juvenile

offender, and of homicide. Under the canons of statutory

construction, appellate courts generally interpret the word “shall”

as being mandatory rather than discretionary. See People in

Interest of C.N., 2018 COA 165, ¶ 35. Specifically, S.M.H.’s second

degree murder offense — other than obviously justifying her

adjudication of homicide, see § 18-3-103(3)(a) — supports her

adjudication as (1) an aggravated juvenile offender because it is a

delinquent act that constitutes a class 2 felony, see §§ 19-2.5-

1125(4)(a)(I), 18-3-103(3)(a); and (2) a violent juvenile offender

because it constitutes a crime of violence under section 18-1.3-

406(2)(a)(I)-(II), see § 19-2.5-1125(3).

¶ 29 While neither party nor the district court addressed our

reasoning, S.M.H.’s juvenile adjudications are supported in the

record (or we take judicial notice of them), and we are not bound by

the district court’s interpretation of a statute. Therefore, although

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on different grounds, we affirm the district court’s denial of S.M.H.’s

motion to expunge.

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IV. Conclusion

¶ 30 We affirm the order.

JUDGE GRAHAM and JUDGE HAWTHORNE concur.

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The district court’s denial of S.M.H.’s motion to expunge on the

grounds that she is still in the custody of DOC and therefore may

not petition the court for expungement until “thirty-six months after

the date of the petitioner’s unconditional release from the juvenile

sentence,” § 19-1-306(6)(e), C.R.S. 2023, is not incorrect. But that

same provision says that a juvenile may not petition the court if

they are “otherwise ineligible for expungement pursuant to

subsection (8) of this section.” Id. Therefore, waiting thirty-six

months following S.M.H.’s release from DOC does not change the

categorial denial of a future expungement request.