Honorable James D. Zimmerman, Judge
v.Ney and Casebolt, JJ., concur
November 7, 2002
Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Defendant, Daniel T. Walker, appeals from the district court’s order denying his motion for postconviction relief under Crim. P. 35(a). We affirm.
In February 1998, defendant forged and cashed two checks on his wife’s personal checking account. He later pled guilty to two counts of forgery, a class five felony, for which he was placed on probation for three years. Probation was revoked after defendant violated the conditions of probation, and he was sentenced to a term of one year imprisonment to be followed by two years of mandatory parole under § 18-1.3-401(1)(a)(V)(A), C.R.S. 2002 (formerly codified at § 18-1-105(1)(a)(V)(A)).
Defendant later filed this postconviction motion, asserting that his mandatory parole term violated his constitutional right to equal protection of the laws. The motion was denied, and this appeal followed.
Defendant contends that the mandatory parole laws violate his right to equal protection because, under the sentencing scheme in place when he committed his crimes, a sex offender who committed the same class of felony as a non-sex offender would be subject to only a discretionary parole term. We disagree.
Statutes are presumed to be constitutional, and the party challenging a statute bears the burden of proving its invalidity beyond a reasonable doubt. People v. J.P.L., 49 P.3d 1209 (Colo. App. 2002).
Equal protection of the laws ensures that similarly situated persons will receive similar treatment. U.S. Const. amend. XIV; Colo. Const. art. II, § 25; People v. Friesen, 45 P.3d 784 (Colo. App. 2001). Thus, the threshold question in addressing an equal protection challenge is whether the person alleging disparate treatment is in fact similarly situated. In the criminal law context, equal protection issues arise where disparate penalties are imposed to punish identical or similar criminal conduct. People v. Young, 859 P.2d 814 (Colo. 1993); People v. Friesen, supra.
In Friesen, a division of this court rejected the contention that defendant makes here. The division concluded that offenders are not similarly situated based solely on the felony class of their crimes, because each felony class includes numerous offenses that do not involve the same or similar criminal conduct.
Nevertheless, defendant argues that the analysis in Friesen is flawed because it fails to recognize that, under § 17-22.5-102.5, C.R.S. 2002, the purposes of parole are the same for all offenders, and therefore all offenders are "similarly situated" for equal protection purposes regardless of the nature of their crimes. We are not persuaded.
The criminal code contains separate provisions for the parole of sex offenders and non-sex offenders. Compare § 18-1.3-401(1)(a)(V)(C), C.R.S. 2002, with § 18-1.3-401(1)(a)(V)(C.5), C.R.S. 2002. In Martin v. People, 27 P.3d 846, 862 (Colo. 2001), the court recognized "the legislature’s continuing desire to set sex offenders apart from other offenders for the purpose of parole period determination" and concluded that mandatory parole is inapplicable to those who commit sex crimes. See also People v. Cooper, 27 P.3d 348 (Colo. 2001). Thus, contrary to defendant’s assertion, sex offenders and non-sex offenders are subject to different parole laws and are not similarly situated for purposes of parole.
We agree with the reasoning and holding of Friesen. Although the right to equal protection precludes imposition of different punishments for "the same acts committed under like circumstances by persons in like situations," it generally does not prevent the General Assembly from prescribing differing degrees of punishment for separately defined crimes. People v. Black, 915 P.2d 1257, 1260 (Colo. 1996)(quoting People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975)).
Finally, because defendant failed to raise it in the trial court, we decline to address his contention that his mandatory parole sentence violates his right to due process. See People v. Balkey, 53 P.3d 788 (Colo. App. 2002).
The district court’s order is affirmed.
JUDGE NEY and JUDGE CASEBOLT concur.