Peo v. Milligan

Opinion

22CA0634 Peo v Milligan 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0634

City and County of Denver District Court No. 83CR2146

Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Milligan,

Defendant-Appellant.

ORDER AFFIRMED

Division V

Opinion by JUDGE HARRIS

Brown and Lum, JJ., concur

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

Announced August 1, 2024

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Michael Milligan, appeals the district court’s order

denying his motion for postconviction relief. We affirm.

I. Background

¶ 2 In September 1984, a jury convicted Milligan of first degree

sexual assault, second degree burglary, and a crime of violence

sentence enhancer for his use of a deadly weapon. The district

court sentenced him to the Department of Corrections (DOC) for a

term totaling twenty-four years, to be served consecutively to any

other previously imposed sentences.

¶ 3 In January 2019, Milligan was released on parole.

Approximately six months later, the parole board filed a complaint

alleging that Milligan had been terminated from sex offender

treatment and community corrections in violation of his parole

conditions. These terminations occurred after Milligan was found

in possession of “items related to his previous sexually assaultive

behaviors,” including used women’s underwear, rubber gloves, rope,

wire, lubricant, and pantyhose. After a hearing, Milligan’s parole

was revoked, and he was remanded back to the custody of the DOC

to serve the remainder of his sentence.

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¶ 4 Milligan filed a pro se Crim. P. 35(c) motion for “unlawful

revocation of parole” asserting, among other things, that (1) his

parole was unlawfully revoked because the revocation was based on

a condition (participation in sex offender treatment) that was not

lawfully imposed; and (2) his reincarceration for the remainder of

his original sentence was improper.

¶ 5 The district court appointed counsel and held a nonevidentiary

hearing. After the hearing, the court denied the motion in a written

order. The court found, as relevant here, that (1) sex offender

treatment “was mandated as a condition of parole” pursuant to

section 17-2-201(5)(e), C.R.S. 2023; and (2) “the hearing officer and

the parole board correctly applied [the statute,] and the

determination to resentence [Milligan] for the remainder of his term

was within the board’s discretion.”

II. Discussion

¶ 6 Milligan asserts that the district court reversibly erred when it

denied his postconviction motion because (1) he was not lawfully

required to participate in sex offender treatment and therefore, his

parole revocation on this basis was unlawful; and (2) the parole

board applied the wrong statute when it calculated his release date

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following his parole revocation.

1

Because we disagree with

Milligan’s first assertion and his second assertion is not properly

before us, we affirm the court’s order.

A. Unlawful Revocation of Parole Claim

¶ 7 Milligan argues that because he was not lawfully required to

participate in sex offender treatment while on parole, his parole

revocation on this basis was unlawful. We are not persuaded.

¶ 8 Crim. P. 35(c) permits a defendant to petition for

postconviction relief on the basis that his parole has been

unlawfully revoked. Crim. P. 35(c)(2)(VII); see also People v. Harper,

111 P.3d 482, 486 (Colo. App. 2004) (“[A]ppropriate grounds for

postconviction relief under Crim. P. 35(c) include allegations of

unlawful revocation of parole.”).

¶ 9 Ordinarily, when we review the denial of a Crim. P. 35(c)

motion following a hearing, we defer to the district court’s findings

1

The claims raised in the postconviction motion but not reasserted

on appeal — namely, that (1) the parole board exceeded its

authority by impermissibly delegating decisions about treatment to

a community supervision team; (2) Milligan’s liberty on parole was

unlawfully restricted by the requirement that he participate in

treatment; and (3) he was not afforded due process during his

revocation hearing — are deemed abandoned. See People v. Osorio,

170 P.3d 796, 801 (Colo. App. 2007).

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of fact unless they are so clearly erroneous as to find no support in

the record, and we review its legal conclusions de novo. Sanchez-

Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011). However,

because no evidence was presented at the hearing on Milligan’s

motion, our review is de novo. People v. Melnick, 2019 COA 28,

¶ 10.

¶ 10 Relying on section 17-2-201(5)(e), the district court found that

sex offender treatment was mandated as a condition of Milligan’s

parole. Section 17-2-201(5)(e) states:

As a condition of parole of every person

convicted of the class 2 felony of sexual

assault in the first degree under section 18-3-

402(3), C.R.S., for an offense committed prior

to November 1, 1998, the board shall require

that the parolee participate in a program of

mental health counseling or receive

appropriate treatment to the extent that the

board deems appropriate to effectuate the

successful reintegration of the parolee into the

community.

¶ 11 Milligan asserts that this provision does not apply to him

because it refers to section 18-3-402(3), C.R.S. 2023, which, in its

current iteration, describes the circumstances under which sexual

assault is a class 6 felony — when the victim is between fifteen and

seventeen years old and the defendant is at least ten years older.

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As Milligan correctly points out, he was not convicted of a class 6

felony involving a minor.

¶ 12 Subsection (5)(e) was enacted in 1985. See Ch. 151, sec. 4,

§ 17-2-201, 1985 Colo. Sess. Laws 667. In 1998, the legislature

amended that subsection, making it applicable to anyone convicted

of “the class 2 felony of sexual assault in the first degree under

section 18-3-402(3), C.R.S., for an offense committed prior to

November 1998.” See Ch. 303, sec. 10, § 17-2-201, 1998 Colo.

Sess. Laws 1291. And at that time, section 18-3-402(3) described

the circumstances under which sexual assault was a class 2 felony,

including the circumstance applicable to Milligan’s conviction —

where “[t]he actor is armed with a deadly weapon and uses the

deadly weapon to cause submission of the victim.” § 18-3-402(3)(c),

C.R.S. 1998.

¶ 13 The legislature subsequently amended section 18-3-402(3) to

refer to the class 6 felony offense of sexual assault involving a

minor, but it never updated subsection (5)(e) with the new section

number for sexual assault in the first degree. See Ch. 171, sec. 18,

§ 18-3-402, 2000 Colo. Sess. Laws 698-700. However, the offense

named in subsection (5)(e) — “class 2 felony of sexual assault in the

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first degree” — remains the same and is the offense of which

Milligan was convicted. Therefore, section 17-2-201(5)(e) mandated

treatment as a condition of Milligan’s parole.

¶ 14 But even if subsection (5)(e) does not apply, the parole board

had authority to impose sex offender treatment as a condition of

Milligan’s parole. “The purpose of parole . . . is to reintegrate

offenders into society while still protecting public safety.” Harper,

111 P.3d at 485. To accomplish this purpose, the parole board may

subject an offender to specific conditions for the duration of parole

to assure that parole “serves as a period of genuine rehabilitation

and that the community is not harmed by the [parolee’s] being at

large.” People v. McCullough, 6 P.3d 774, 780 (Colo. 2000) (quoting

Griffin v. Wisconsin, 483 U.S. 868, 875 (1978)); see People v. Barber,

74 P.3d 444, 446 (Colo. App. 2003) (“[T]he parole board has

authority to establish the conditions of parole.”). Section 17-2-

201(5)(f)(I) gives the parole board authority to establish “such parole

conditions as [it] deem[s] appropriate,” and requires the parolee to

“abide by any . . . condition the board may determine to be

necessary.”

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¶ 15 One such condition of parole, which serves the dual purpose

of rehabilitation and protection of the public, is sex offender

treatment. See Doe v. Heil, 781 F. Supp. 2d 1134, 1140-43 (D.

Colo. 2011) (discussing the strong and legitimate state interest in

treating and rehabilitating sex offenders), aff’d, 533 F. App’x 831

(10th Cir. 2013). Consequently, requiring sex offender treatment as

a condition of parole to rehabilitate a defendant and protect the

public is within the purview of the parole board’s discretionary

authority. See Christensen v. People, 869 P.2d 1256, 1259 (Colo.

1994) (stating, in reference to a sex offender sentenced in 1976,

that “if the parole board determines an inmate is in need of further

treatment, it can condition parole upon participation in a sex

offender treatment program”).

¶ 16 Because the parole board could condition Milligan’s parole on

participation in and successful completion of a sex offender

treatment program, it could lawfully revoke his parole for a violation

of that condition. Consequently, we conclude that the district court

properly denied this claim.

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B. Reincarceration Claim

¶ 17 Next, Milligan argues that the parole board applied the wrong

statute when it calculated his release date following his parole

revocation. He says that the parole board should have applied

section 17-22.5-303(2), C.R.S. 2023, which mandates

reincarceration for not more than two years, as opposed to section

17-22.5-403(6), C.R.S. 2023, which allows for reincarceration for

“any period of time up to the period remaining on such person’s

sentence.”

¶ 18 Milligan does not challenge the legality of the original sentence

imposed. Rather, his claim challenges the actions of the parole

board in determining his parole eligibility date following

reincarceration after his parole was revoked. Courts have no

jurisdiction to fix parole eligibility, which is a responsibility of the

DOC. People v. Analya, 894 P.2d 28, 31 (Colo. App. 1994). As a

result, such parole eligibility claims are not cognizable under the

rules governing postconviction relief. See People v. Huerta, 87 P.3d

266, 267 (Colo. App. 2004); see also Melnick, ¶ 7. Instead,

Milligan’s claim lies in a separate civil action against the DOC or the

State Board of Parole, neither of which is a party to this criminal

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proceeding. See Huerta, 87 P.3d at 267. Accordingly, we conclude

that the district court properly denied this claim as well, though we

rest our conclusion on different grounds. See People v. Back, 2013

COA 114, ¶ 20.

III. Disposition

¶ 19 The order is affirmed.

JUDGE BROWN and JUDGE LUM concur.