Motion to Dismiss — Harshfield v. Ricketts

As oe RECEIVED |

JUL 25 1980

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE

UNITED STATES

October Termy 1979 ggyeitht grt

DARYL GEORGE HARSHFIELD,

Petitioners

Ve

| JAMES Ge RICKETTSs Executive Directors

Colorado Department of Correctionsy et ale

Respondentse

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Je De MacFARLANE

Attorney General

RICHARD F. HENNESSEY

Deputy Attorney General

MARY Je MULLARKEY

Solicitor General

Je STEPHEN PHILLIPS

Assistant Attorney General

Litigation Section

Attorneys for Respondents

1525 Sherman Streets 30d Floor

Denvers Colorado 80203

Telephone: 839-3611

I_N_O_E_x

INTRODUCTORY STATEMENT

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY PROVISIONS

ARGUMENT

Te SINCE NO LIBERTY INTEREST IS CREATED UNDER THE

COLORADO SEX OFFENDERS ACT, OUE PROCESS DOES

NOT REQUIRE A HEARING BE HELO PRIOR TO A DECISION

TO DISCONTINUE PROCEEDINGS THEREUNDER.

Ile TERMINATION OF SEX OFFENDER PROCEEDINGS WITHOUT

A HEARING DOES NOT VIOLATE EQUAL PROTECTION

SINCE NO PARTY IS ENTITLED TO BE SENTENCED THERE-

UNDER ANYWAY.

CONCLUSION

CASES

Andrus ve Turners 421 Fe2d 290 (1LOth Cire 1970)

Ex parte Quinny 317 UseSe le 63 Se Cte le B87 Le Ede 3

(1942)

Groppi ve Wisconsines 400 UseSe 505s GL SeCte 490% 27

LeEde2d 571 (19TL)

People ve Breazeales 190 Colose 17s 544 Pe2d 970

(1976)

People ve Lyonsy 185 Coloe L112» S21 Pe2d 1265 (1974)

People ve Medinas 193 Colose 1909 564 Pe2d 119 (1977)

People ve Sanchezy 184 Coloe 3799 520 Pe2d 751 (1974)

Rhinehart ve Rhays 440 F.2d 718 (9th Cired, certe denied

494 UeSe 825 (1971)

Specht ve Pattersons 386 UsSs 6059 B87 Se Cte 1209, 18

Le Ede 20 326 (1967)

State ve Sanders: 35 Ore App. 5039 582 Pe2d 224 24

(1978)

State ve Williams, 295 NeCe 6559 249 SeEe2d 7099. 720

(1978)

9-10

I_N_O_E_x

Thibodeau ve Commonwealth of Massachusetts» 428 Fe

Suppe 542 (De Masse 1977)

United States ve Batchelders 442 UseSe 114s 1259 99 Se

Cte 21989 60 LeEde2d 755 (1979) ;

United States ve Bowdachy 561 Fe2d 860, 872-873 (10th

Cire 1977)

Williams ve [I1TinoiSs 399 UseSe 2359 2439 90 SeCte 2018,

26 LeEde2d 586 (1970)

Wolff ve McDonalds 418 UsSe 5399 94 Se Cte 29639 41 Le

Ede 20 935 (1975)

STATUTES

Coloe Reve State 1973:

Colds Reve State 19735 16-13-20ls et seq.

Coloe Reve State 19739 16-13-203

Colose Reve State 19739 16-13-209

Colos Reve State 19739 18-1-104

Coloe Reve State 19735 18-1-105

OTHER AUTHORITIES

28 UeSeCe 1254(2)

28 UeSeCe 2103

Colorado Sex Offenders Act

Page

296

29396

IN THE

SUPREME COURT OF THE

UNITEO STATES

October Term, 1979

DARYL GEORGE HARSHFIELD,

Petitioners

Ve

JAMES Ge RICKETTS»s Executive Directors

Colorado Department of Correctionsys et ale

Respondentse

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

INTRODUCTORY STATEMENT

Dary! Harshfield appeals pursuant to 28 UseSeCe 1254(2)6

From the Tenth Circuit Court of Appeals affirmance of the

denial of his federal habeas corpus petitions Since the

Tenth Circuit did not determine any Colorado statute to be

“invalid as repugnant to the constitutions treatiess or

laws of the United States»" appellate jurisdiction under 28

UeSeCe 1254(2) is not propere The respondent recognizes,

however, that habeas corpus questions are reviewable by cer-

tioraris Ex_ parte Quinns 317 UseSe ly 63 Se Cte Ly 87 Le

Ede 3 (1942)% and that this Court will treat matters

improvidently raised on appeal as being raised by petition

for certiorarie 28 UeSeCe 21036 Since Mre Harshfield's

jurisdictional statement appears to have been filed with

this Court within ninety days of the Tenth Circuit's March

28% 1980 decisions the respondent will treat it as a petition

for certiorari and will reply accordinglys Mre Harshfield

will be referred hereafter as the petitionere

The petitioner pled guilty to charges of rape and

devious sexual intercourse by forcee Ordinarilys the penalty

for each of these crimes would range from five to forty

years imprisonmente Coloe Reve State 19739 18-1-104e How-

evers since the petitioner admitted four prior felony convic-

tions» he became punishable under the state habitual criminal

statute by a term of life imprisonment for either the rape

or the deviate sexual intercourse.e

The petitioner moved for commencement of proceedings

under the Colorado Sex Offenders Acts Coloe Reve State 1973

16-13-20ls+ et sege Under the Act, the petitioners if found

to be a dangerous threat to societys potentially would be

punishable by an indefinite term of imprisonment in the

state penitentiarye Coloe Reve State 19739 16-13-2036

After reviewing the reports of two psychiatrists and the

Probation Departments the trial courts pursuant to Coloe

Reve State 19739 16-13-209, terminated proceedings under

the Acte The court subsequently sentenced petitioner as a

habitual criminal to the state penitentiary for two concur-

rent terms of life imprisonment.

The petitioner applied to the federal district court

for federal habeas corpus relief. Said application was

denieds and the decision of the district court was affirmed

by the Tenth Circuit Court of Appeals. Heres the petitioner

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asserts that the Colorado Sex Offenders Act affords him an

ce

unqualified right to a hearing and‘that termination of sex

of fender proceedings without a hearing contravenes his rights

to due process and equal protection of the lawe Initiallys

the respondents note that the Colorado Supreme Court has con-

Strued the Sex Offender Act as not providing an individual

with an unqualified right to a hearing thereundere People

Ve Breazeales 190 Coloe 179 544 Pe2d 970 (1976)e Since the

highest state court*s construction of a state law is binding

upon this Courts Groppi_ve wWisconsinsr 400 UeSs 505% 91

SeCts 4909 27 LeEde2d S71 (1971)e this court must accept

that the Colorado Sex Offenders Act does not afford an indi-

vidual a hearing prior to a decision to terminate proceedings

thereundere People ve Breazeales supra.

QUESTIONS PRESENTED

le Does the Colorado Sex Offenders Act create a lib-

erty interest such that due process requires a hearing prior

to a decision to terminate such proceedings?

2- Is equal protection violated by the termination

of sex offender proceedings without a hearing?

CONSTITUTIONAL AND _STAIUIORY PROVISIONS

In addition to the constitutional and statutory provi-

sions listed by the petitioners the respondent would cite

the following:

Colds Reve State 1973y 16-13-202(3):

"Department" means the department of

corrections.

Coloe Reve State 19739 16-13-2036

Indeterminate commitmente The district

court having jurisdiction mays subject

to the requirements of this part 2,5.

in lieu of the sentence otherwise pro-

vided by laws commit a sex offender .

to the custody of the department for

an indeterminate term having a minimum

of one day and a2 maximum of his natural

life.

Coloe Reve State 19739 18-3-401(2)-

Rape is a class 3 felonyeces

Coloe Reve State 1973, 18-3-403(2)-.

Deviate sexual intercourse by force

is a class 3 felonye

Coloe Reve State 1973~¢ 18-1-105. Fel-

onies Classifieds penaltiesescese Class

3 felony: minimum sentence -- 5 years

imprisonment; maximum sentence -- 40

years imprisonment.

ARGUMENT

Ie

SINCE NO LIBERTY INTEREST IS CREATED

UNDER THE COLORADO SEX OFFENDERS ACTs

DUE PROCESS COES NOT REQUIRE A HEARING

BE HELD PRIOR TO A DECISION TO OISCON-

TINUE PROCEEDINGS THEREUNDER.

The petitioner contends that the termination of sex

offender proceedings without a hearing contravenes due pro-

cess Of lawe This argument iss of courses premised upon

the belief that the Sex Offenders Act creates a statutory

liberty interest to which he is entitled. Seer Wolff ve

McDonalds 418 UsSe 5399 9% Se Cte 29635 41 Le Ede 204 935

(1975)-«

The petitioner alleges thats under section 211 of the

Acts he has a right to indeterminate commitment if the trial

court finds beyond a reasonable doubt thats if at larges he

would constitute a threat of bodily harm to members of the

public (petitions pe 5)- The Colorado Supreme Courts how-

-&-

every has held that the defendant never has a right to be

sentenced as a sex offenders even if he were found to be a

threat to societye People ve Lyons: 185 Coloe 112, 521

P.2d 1265 (1974). The structure and language of the act sup-

ports the court's rulinge Section 211 does not require a

trial court to sentence an individual to an indefinite term

upon a finding of dangerouse Rathers section 211 requires

only that he be sentenced pursuant to section 203-6 Section

203 provides:

The district court having jurisdiction

may+ subject to the requirement of

this part 25 in lieu of the sentence

@s provided by laws commit a sex offender

to the custody of the department of

indeterminate term having a minimum

of one day and @ maximum of his natural

life.

(emphasis added).

As is readily apparent, section 211 does not mandate

sentencing under the Sex Offenders Acts but ultimately relates

back to the court’s discretion to sentence the individual

either under the Act or as otherwise provided by lawe Sec-

tions 203 and 209 of the Acts when read togethers make it

abundantly clear that traditional sentencing concerns have

not been supplanted or preempted by the enactment of the

Sex Offenders Act. Sees @eg++ Ihibodeau vs Commonwealth of

Massachusetts» 428 F. Supp. 542 (O- Masse 19TT)- The

respondents submit that the following passage from People

¥a_Breazeales supras is dispositive of the petitioner*s argu-

ment:

We have here a situation in

which there is no constitutional man-

date requiring a sex offenders acts+

The provisions of this act vest a

trial court with discretion to commit

@ defendant under an alternate sen-

tencee This is similar to the discre-

tion in a court to suspend a sentence

or to grant probation.

From the wording of the sex

offenders acts it appears that a defen-

dant may require the commencement of

@ hearinge Howevers the matter of

whether there should be sentencing

under the act is an alternative which

may be granted or denied by the court,

once the psychiatrists* and probation

officers* reports have been filed and

reviewede. This being a sentencing

alternatives a constitutional right

is not attained.

544 Pe2d at 9764 See alsq People ve Medinas 193 Coloe 190%

564 Pe2d 119 (1977); People ve Sanchezs 184 Caoloe 3799 520

Pe2d T51 (1974)e Cfe United States ve Batchelders 442 UeSe

L14e 1259 99 Se Cte 2198s 60 LeEde2d 755 (1979) ("Just as a

defendant has no constitutional right to elect which of two

applicable federal statutes shall be the basis of his indict-

ment and prosecutions neither is he entitled to choose the

penalty scheme under which he will be sentenced.")

Moreovers absent his habitual criminal status, the

petitioner could have received maximum sentences of up to

forty years imprisonment on each count via normal sentencing

procedures. Colos Reve State 19739 18-1-105e Under the

Sex Offenders Acts howevers he potentially could have been

imprisoned for the remainder of his natural lifes Coloe

Revs. Stat. 1973+ 16-13-203. In Specht ve Patterson» 386

UeSe 6059 B87 Se Cte 1209, 18 Le Ede 20 326 (1967)e this

Court observed that the Colorado Sex Offenders Acte similar

to the current statute but without the current provisions

relating to an evidentiary hearing prior to sentencing there-

unders was enacted for the purpose of keeping “individuals

from inflicting furure harm.” 386 UsSe at 609. Because

in Spechts the Act was held to be an enhanced penalty statute

‘

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based» in essences upon a new Charges seer Sadar United

States ve Bowdachs 561 Fe2d 860+ 872-873 (10th Cire 1977);

State ve WilliamS+s 295 NeCe 6559 249 SeEe2d 709%e 720 (1978);

State ve Sanders: 35 Ore Apps 5039 582 P.2d 229 24 (1978)>»

a hearing was required before one could be sentenced there-

under.

The sections of the Act which the petitioner relies

upon for his statutory liberty interest theory (sections

206+ 2109 211 and 212) as well as section 209) were enacted

by the Colorado General Assembly in response to the Specht

decision and were designed only to meet the requirements of

Specht» rather than to change the nature and purpose of the

Acte People ve Breazeales sunrael/ It is difficult to per-

ceive any liberty interest in a statute which enhances the

potential penalty for rape and deviate sexual intercourse

from forty years imprisonment to imprisonment for the remain-

der of one’s natural life. In facts it seems incongrous to

suggest that a liberty interest requiring a hearing exists

both in being sentenced and in avoiding being sentenced

under this statutes Specht ve Pattersons supra; People ve

Breazealesr suprae Logicallys due process should not require

@ hearing prior to the termination of sex offender proceed-

ings since such termination eliminates the possibility of

imposing a penalty potentially greater than that normally

associated with the crimes of which an individual stands con-

victed.

-7o

TERMINATION OF SEX OFFENDER PROCEEDINGS

WITHOUT A HEARING DOES NOT VIOLATE

EQUAL PROTECTION SINCE NO PARTY IS

ENTITLED TO BE SENTENCED THEREUNDER

ANYWAY.

The petitioner asserts that termination of sex offender

proceedings without a hearing deprives him of equal protec-

tion of the lawe This» he argues» follows from the fact

that another individuals in like circumstancesy having had

a hearing and been found to constitute as threat to society»

would necessarily receive the treatment, rehabilitations

and release under the Act which was denied him. This premise

is faulty since other individuals in like circumstances who

have the benefit of a hearing and are found to constitute a

threat to society arce._neat entitled to be committed under

the Sex Of fenders Acte Commitment under the Sex Offenders

Act is always optional with the trial courte People ve

Breazeale>s supra; People ve Lyons» suprae In Williams ve

Illinois, 399 UsS. 235% 2439 90 SeCte 20189 26 LeEde2d 586

(1970) this Courts in discussing the equal protection clause

of the fourteenth amendments noted:

Sentencing judges are vested with

wide discretion in the exceedingly dif-

ficult task of determining the appro-

priate punishment in the countless

variety of situations that appear.

The Constitution permits qualitative

differences in meting out punishment

and there is no requirement that two

persons convicted of the same offense

receive identical sentences. Thus»

it was that in Williams ve New Yorks

337 UeSe 2419 247 (1949)¢e we said:

*The belief no longer prevails that

every offense in a like legal category

calls for identical punishment without

regard to the past life and habits of

@ particular offender.*

Accordinglys in the absence of a showing of arbitrary

and invidious discriminations the court's exercise of its

discretionary power to sentence an individual as otherwise

provided by law does not deny him the equal protection provi-

sions of the fourteenth amendment. Andrus ve Turners 421

Fe2d 290 (1LOth Cire 1970) Since the petitioner here neither

avers nor establishes that the trial court acted discriminatorily

in Leraineting the proceedings and in sentencing him as

otherwise provided by laws he is not entitled to relief on

equal protection groundse Cfe Rhinehart ve Rhays 440 F.2d

718 (9th Cire)s Certs denied 404 UseSe 825 (19T1L)«

CONCLUSION

For the foregoing reasons: the respondent urges that

certiorari be deniede

1/ The amendments neither provided for the treatment of

an adjudicated sexual offenders as the petitioner apparently

believes» nor altered the Act*s effect as an enhanced punish-

ment statute. Clearlys the amendments were intended not to

assist an individual in receiving treatment of early releases

but to prevent an arbitrary finding by a trial court which

could possibly lead to life imprisonment.

FOR THE ATTORNEY GENERAL

Je STEPHEN PHILLIPS,»

First Assistant Attorney General

Litigation Section

A Member of the Bar of This Court

Attorneys for Respondent

1525 Sherman Streets 3d Floor

Denvers Colorado 80203

Telephone: 839-3611

AG Alpha Noes CO PE GCLA

AG File Noe OLI/HARSHF/I1LW

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CERTIFICATE OF MAILING

Iy Je Stephen Phillips» a member of the Bar of this

Courts herewith certify that the within BRIEF IN OPPOSITION

has been deposited in the United States mails» first-class

postage prepaids addressed to Michael Rodaksy Jres Clerk of

the Courts Supreme Court of the United States» Washington,

DeCes 20593 and that to my knowledge the mailing took place

Ad

on July 19809 within the permitted time for filing

TF Shyn Chdly,

the briefe

state___ Cg Lory he)

) SSe

COUNTY OF__ oD, Le ane—_)

Subscribed and sworn to before me this 22 aay of

NOT

My Commission expires:

-LALSSL ARP

AL L/HARSHE /C2