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People v. Fritschler10/9/2003
agree with the division in Walker and similarly reject defendant's argument here. See also People v. Oglethorpe, ___ P.3d ___ (Colo. App. No. 02CA0347, June 19, 2003).
C.
Nonetheless, defendant further argues that the mandatory and discretionary parole laws violate equal protection because an offender committing the same non-sexual offense as he committed, but with an underlying factual basis involving unlawful sexual conduct, must only serve discretionary parole. See § 17-2-201(5)(a), (a.5), C.R.S. 2002 (any person sentenced for the conviction of an offense involving unlawful sexual behavior or a non-sexual offense for which the factual basis involved an offense involving unlawful sexual behavior serves discretionary parole); see also People v. Pahlavan, ___ P.3d ___ (Colo. App. No. 01CA1331, Apr. 24, 2003).
However, as Colorado courts have consistently held, equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation. People v. Marcy, 628 P.2d 69, 74 (Colo. 1981).
Thus, in the criminal law context, equal protection problems arise only when the same or similar conduct is proscribed in two statutes, but different criminal sanctions apply. See People v. Young, 859 P.2d 814, 816 (Colo. 1993); People v. Friesen, supra, 45 P.3d at 785.
Here, however, offenders convicted of crimes involving no allegations of sexual misconduct and offenders convicted of comparable non-sexual offenses in which there is an underlying factual basis of unlawful sexual behavior are not similarly situated because different behavior triggers the different parole requirements. The General Assembly has exercised its prerogative to differentiate offenses involving unlawful sexual behavior from other offenses in this way. See People v. Black, 915 P.2d 1257, 1261 (Colo. 1996); People v. White, 656 P.2d 690 (Colo. 1983); see also People v. McKnight, 626 P.2d 678, 683 (Colo. 1981)(equal protection prohibits state from enacting statute which prescribes different punishments for the same acts committed under like circumstances by persons similarly situated).
Defendant here has cited no case in which classifications invalidated under equal protection analysis have involved different combinations of crimes. Nor has he alleged any facts to show that he and other non-sexual offenders are similarly situated to a sex offender who committed an unlike crime and received a criminal penalty deemed by the General Assembly to be appropriate for the nature of that crime. Therefore, we reject defendant's equal protection claims.
The order is affirmed.
JUDGE NIETO and JUDGE CARPARELLI concur.
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