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Sex Offender’s Indeterminate Sentence Upheld as Constitutional

Sept. 29, 2021, 6:36 PM

The indeterminate sentence a Colorado sex offender received didn’t violate his equal protection or due process rights even though he has served 37 years for a crime that carries a maximum sentence of 24 years, the Tenth Circuit said Wednesday.

Bruce Wimberly pleaded guilty to first-degree sexual assault in 1984. The maximum determinate sentence for the crime was 24 years, but the judge sentenced him under the Colorado Sex Offenders Act to a term of confinement lasting from one day to life imprisonment.

Wimberly argued that the U.S. Constitution now requires his release because he’s served more than the 24 years the determinate sentence required.

The Sex Offender Act allowed the indeterminate sentence “in lieu of the sentence otherwise provided by law,” the opinion by Judge Robert E. Bacharach said. Nothing new was necessary after 24 years to keep Wimberly in prison, it said.

Because the trial court conducted a post-trial hearing to determine which sentence to impose against Wimberly, he also received all the process he was due, the U.S. Court of Appeals for the Tenth Circuit said.

Wimberly compared his incarceration to a civil commitment and claimed that his equal protection rights were violated by a sentence longer than 24 years without a hearing. But the court said that a person punished for committing a heinous sex crime is also far different from a person who was civilly committed and didn’t commit any crimes.

Judge David M. Ebel’s concurrence expressed his concern that the indeterminateness of Wimberly’s sentence means that it’s fluid and that the Sex Offender Act should incorporate a process for defendants to challenge whether they’re still a threat to the public.

Dissenting Judge Carolyn B. McHugh said that the Sex Offender Act provides a scheme for criminal commitment, not sentencing, and that Wimberly’s due process rights were violated because he wasn’t treated the same as civilly committed individuals.

The case is Wimberly v. Williams, 2021 BL 369528, 10th Cir., No. 20-1128, 9/29/21.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com