24CA0940 Peo v Milsap 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0940 City and County of Denver District Court No. 11CR2695 Honorable Kandace C. Gerdes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James E. Milsap,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE LIPINSKY Dunn and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 The Colorado Supreme Court painted with a broad brush in
Allman v. People by announcing that “when a court sentences a
defendant for multiple offenses in the same case, it may not impose
imprisonment for certain offenses and probation for others.” 2019
CO 78, ¶ 40, 451 P.3d 826, 835. On a single day in June 2021,
however, a divided supreme court announced five opinions that
carved out exceptions to Allman’s sweeping language when a court
imposes a prison sentence and a consecutive sentence on Sex
Offender Intensive Supervision Probation (SOISP) under the
Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA),
§§ 18-1.3-1001 to -1012, C.R.S. 2025. See People v. Rainey, 2021
CO 53, ¶ 16, 488 P.3d 1081, 1085; People v. Coleman, 2021 CO 52,
¶ 18, 488 P.3d 1086, 1090; People v. Lowe, 2021 CO 51, ¶ 17, 488
P.3d 1122, 1126; People v. Keen, 2021 CO 50, ¶ 40, 488 P.3d 1127,
1138; People v. Manaois, 2021 CO 49, ¶ 69, 488 P.3d 1099,
1116-17.
¶2 In two of the 2021 quintet of cases, the defendant was
convicted of a crime subject to a mandatory prison sentence and a
separate offense subject to SOISP. See Coleman, ¶¶ 4, 7, 20, 488
P.3d at 1088-91; Keen, ¶¶ 5, 8, 21, 36-39, 488 P.3d at 1131-33,
1 1137-38. In the other three cases, the defendant was not convicted
of any crime for which prison time was mandated. See Rainey, ¶ 5,
16 n.3, 488 P.3d at 1084, 1085 n.3; Lowe, ¶ 5, 488 P.3d at 1124;
Manaois, ¶ 8, 488 P.3d at 1104.
¶3 Today, we consider James E. Milsap’s argument that the
general rule of Allman — and not the exceptions to Allman
discussed in the five 2021 cases — applies when, like here, a
defendant pleads guilty to a crime that is not subject to a
mandatory prison sentence and to a crime that is subject to SOISP.
We conclude that, under these facts, consistent with the reasoning
of the 2021 cases, Allman does not bar imposing consecutive
sentences to the custody of the Department of Corrections (DOC)
and to SOISP.
¶4 Because we reject Milsap’s other contentions of error, we
affirm the district court’s order revoking his sentence to SOISP.
I. Background
¶5 While on probation for a previous felony, Milsap threatened his
girlfriend with a machete before sexually assaulting her. He was
charged with menacing and sexual assault.
2 ¶6 Milsap pleaded guilty to added counts of second degree
assault (a class 4 felony) and attempted sexual assault (a class 5
felony) in exchange for dismissal of the original counts. In his plea
agreement, Milsap stipulated to a sentence within a range of five to
ten years in the custody of the DOC for second degree assault and a
consecutive eight years on SOISP for attempted sexual assault. The
district court imposed a ten-year prison sentence, followed by a
three-year parole period, and a consecutive eight-year SOISP
sentence. As Milsap’s release from prison approached, the
probation department sought clarification from the court as to
whether Milsap needed to serve the SOISP sentence consecutively to
or concurrently with the three-year parole term. In April 2019, the
court issued an order (the April order) saying that “[b]y agreement
of counsel and by this [o]rder of the [c]ourt, probation will run
concurrent to parole.” Milsap was later released to parole and
began serving his SOISP sentence. In November 2020, he signed a
document confirming his understanding of the conditions of SOISP,
including that “PROBATION WILL RUN CONCURRENT TO
PAROLE.”
3 ¶7 In June 2021, Milsap’s probation officer filed a complaint to
revoke Milsap’s SOISP, alleging that he had violated its conditions
by testing positive for cocaine, being unsuccessfully discharged
from sex offender treatment, failing to attend probation
appointments, and leaving Colorado without permission. In
addition, the probation department received reports that Milsap had
never returned to Colorado. The court issued a warrant for Milsap’s
arrest in June 2021, but he was not arrested until March 2023.
Also in March 2023, the parole board discharged Milsap’s parole.
At the conclusion of a two-day hearing (the revocation hearing) on
the revocation complaint, Milsap argued that the prosecution had
presented insufficient evidence to establish that he had violated the
SOISP conditions. He additionally asserted that his sentence to
prison followed by SOISP was illegal and that the court had violated
his constitutional right to due process by modifying his sentence to
run SOISP concurrently with his parole term in his absence and
without his knowledge. According to Milsap, he was not present
when the court entered the April order, and, at the time, he believed
that his probation would not begin until after he completed his
parole.
4 ¶8 The court determined that Milsap’s sentence to prison followed
by SOISP was not illegal. The court further said that, although the
April order changed Milsap’s sentence from consecutive to
concurrent, his due process rights were not violated because his
counsel had agreed to the modification, and Milsap did not object
when he learned of the change upon entering SOISP in November
2020. Finally, the court found that the prosecution had introduced
sufficient evidence to establish that Milsap had violated the
conditions of his SOISP sentence. At the resentencing hearing, the
court noted that Milsap had discharged his prison sentence. It then
revoked his SOISP sentence and resentenced him to four years in
the custody of the DOC on the attempted sexual assault conviction.
II. Analysis
¶9 Milsap contends that the district court erred by revoking his
SOISP sentence because (1) his original sentence to prison followed
by SOISP was illegal; (2) the court’s order modifying his SOISP
sentence to run concurrently with the parole component of his
prison sentence without his knowledge and outside his presence
violated his due process rights; and (3) he substantially complied
5 with the conditions of SOISP. We address — and reject — each of
Milsap’s assertions in turn.
A. Milsap’s Original Sentence Was Legal
¶ 10 In Allman, the supreme court concluded that, when a court
sentences a defendant for multiple offenses in the same case, the
court may not impose imprisonment for certain offenses and
probation for others. Allman, ¶¶ 3, 28, 33-40, 451 P.3d at 828,
833-35. The court explained that “[a] court’s power to sentence,
both to prison and probation, derives entirely from statute” and that
“the probation statute does not grant the courts the power to
impose sentences to both imprisonment and probation in a
multi-count case.” Id. at ¶ 28, 451 P.3d at 833.
¶ 11 In Manaois, the supreme court limited Allman to cases in
which the court sentences the defendant to prison and probation
under the general sentencing statutes following the defendant’s
convictions for multiple non-sex offenses. Manaois, ¶¶ 2-3, 488
P.3d at 1103. The supreme court explained in Manaois that
“Allman’s sentencing prohibition . . . does not apply in cases where
a defendant receives a prison sentence for a non-sex offense and a
consecutive SOISP sentence for a sex offense” in accordance with
6 SOLSA, which the court described as an “intricate and stand-alone
sentencing scheme.” Id. at ¶¶ 2-5, 22, 69, 488 P.3d at 1103, 1106,
1115-16.
¶ 12 In Keen, the supreme court extended Manaois’s exception to
Allman to those cases “where the defendant receives a prison
sentence for a non-sex offense and a consecutive probation
sentence for an offense that does not qualify as a ‘sex offense’ but
that nevertheless falls within SOLSA’s scope and requires
participation in SOISP.” Keen, ¶¶ 1-2, 19, 31, 40, 488 P.3d at 1130,
1133, 1136, 1138. An offense that does not meet SOLSA’s
definition of a “sex offense” but nonetheless falls within SOLSA’s
scope is referred to as a “sex-related offense[].” Id. at ¶ 1 n.1, 488
P.3d at 1130 n.1; Manaois, ¶ 46, 488 P.3d at 1110-11.
¶ 13 Milsap asserts that in Keen, Coleman, and Rainey, the
supreme court determined that the exceptions to Allman’s general
rule apply only when the defendant’s non-sex offense conviction
subjects the defendant to a mandatory prison sentence. He argues
that in each of these cases the defendant was convicted of a per se
crime of violence or an offense that met the definition of a crime of
violence because it involved serious bodily injury or the use of a
7 deadly weapon. See § 18-1.3-406(2)(a)(I), C.R.S. 2025; People v.
Banks, 9 P.3d 1125, 1130 (Colo. 2000) (explaining that an offense is
a per se crime of violence if the statute defining the offense
specifically requires crime of violence sentencing under section
18-1.3-406). Milsap argues that Allman controls when the
conviction for the non-sex offense — such as his second degree
assault conviction — does not require a prison sentence.
¶ 14 The breadth of the holdings in Manaois, Keen, Coleman, and
Rainey could not be clearer. In Manaois, the supreme court
clarified that Allman did not prohibit the imposition of consecutive
prison-SOISP sentences when a defendant is convicted of a non-sex
offense and a sex offense arising from the same incident. Manaois,
¶ 5, 488 P.3d at 1103. In Keen, the supreme court reiterated that
“Manaois teaches that the rule of Allman doesn’t apply in
multi-count cases where a defendant receives: (1) a prison sentence
for a non-sex offense; and (2) a consecutive probation sentence for a
‘sex offense’ pursuant to [SOLSA], requiring participation in
[SOISP].” Keen, ¶ 1, 488 P.3d at 1130. Keen stands for the
proposition that “Allman does not prohibit courts from sentencing a
defendant in a multi-count case to prison for a non-sex offense
8 followed by SOISP for another offense — regardless of whether the
latter is a sex offense requiring an indeterminate sentence or a
sex-related offense requiring a determinate sentence.” Id. at ¶ 2,
488 P.3d at 1130; see Rainey, ¶ 15, 488 P.3d at 1085; Coleman,
¶ 2, 488 P.3d at 1087; see also Snedeker v. People, 2025 CO 10,
¶ 3, 564 P.3d 301, 304 (“[W]hen a sentence is illegal under Allman
and a defendant has already served the prison portion of the
sentence, the court has the authority to reimpose a probationary
term because probation remains a legal sentencing option at
resentencing. . . . [I]t does not violate Allman for a court to sentence
a defendant to imprisonment in one case and probation in a
separate case.”).
¶ 15 In Keen and Coleman, the defendants pleaded guilty to
non-sex offenses that were per se crimes of violence. Keen, ¶¶ 8,
36, 488 P.3d at 1131-32, 1137; Coleman, ¶ 7, 488 P.3d at 1089. In
upholding the legality of the sentences imposed in those
cases — prison followed by SOISP — the supreme court said that its
decisions were “buoyed by the crime of violence statute, which is
implicated by” the defendants’ convictions for “non-sex offense[s]”
and requires prison sentences. Coleman, ¶¶ 4, 20, 488 P.3d at
9 1088, 1090-91; Keen, ¶¶ 5, 21, 36-39, 488 P.3d at 1131, 1133,
1137-38. But the court expressly recognized that the defendants’
convictions for crimes of violence were not the basis for its
decisions. The court explained that because the defendants were
sentenced for crimes of violence, the crime of violence statute
provided “additional support” or “an independent basis” for
concluding that Allman’s prison-probation restriction did not apply.
Coleman, ¶¶ 4, 20, 488 P.3d at 1088, 1090-91 (“[W]e view the crime
of violence statute as permitting prison-probation sentences where
a defendant . . . is sentenced for a crime of violence and a
non-violent crime in the same case.”); see Keen, ¶ 39, 488 P.3d at
1138. Milsap maintains, incorrectly, that the defendant in Rainey
was convicted of a non-sex offense that subjected him to mandatory
imprisonment under the crime of violence statute. In Rainey, ¶ 5,
488 P.3d at 1084, the defendant pleaded guilty to child abuse,
which is not a per se crime of violence. See § 18-6-401, C.R.S.
2025. And simply because an offense meets the statutory definition
of a crime of violence does not mean that a defendant convicted of
that offense is necessarily subject to crime of violence sentencing.
See § 18-1.3-406(3), (5); Banks, 9 P.3d at 1130 (“[C]rime of violence
10 sentencing . . . applies when . . . the prosecution pleads and proves
use, or possession and threatened use, of a deadly weapon, or
serious bodily injury . . . .”).
¶ 16 The Rainey court expressly acknowledged that, because the
defendant did not plead guilty to a crime of violence, the crime of
violence statute was “immaterial to [its] analysis.” Rainey, ¶ 16 n.3,
488 P.3d at 1085 n.3. Thus, in Rainey, the supreme court did not
rely on Keen’s crime of violence analysis to uphold the challenged
sentence. Id.
¶ 17 Milsap further fails to acknowledge that, in Manaois, the
supreme court upheld the imposition of consecutive prison-SOISP
sentences even though the defendant was convicted of a non-sex
offense that was not a crime of violence. See Manaois, ¶¶ 3-6, 8,
488 P.3d at 1103-04. In upholding the sentences, the Manaois
court recognized that, when a defendant is convicted of a sex
offense and a non-sex offense arising out of the same incident,
SOLSA places only one restriction on the sentences that may be
imposed: “[I]f the court sentences a defendant to prison for the sex
offense, it must order that sentence and the sentence for the other
offense (whether to prison or probation) to be ‘served consecutively
11 rather than concurrently.’” Id. at ¶ 57, 488 P.3d at 1113 (emphasis
added) (quoting § 18-1.3-1004(5)(a), C.R.S. 2025).
¶ 18 Because the crime of violence statute only provided a
nonessential, independent basis to support the supreme court’s
holdings in Keen and Coleman, and because the court did not rely
on the statute to reach the same conclusion in Manaois and Rainey,
we reject Milsap’s assertion that the exceptions to Allman only apply
when a non-sex offense conviction subjects the defendant to
mandatory imprisonment under the crime of violence statute.
¶ 19 We note that, in his reply brief, Milsap purports to clarify the
Allman argument in his opening brief, asserting that he did not
solely rest the mandatory imprisonment argument in his opening
brief on offenses for which imprisonment is required under the crime
of violence statute. He claims that he asserted in his opening brief
that Keen, Coleman, and Rainey do not apply when a non-sex
offense conviction subjects a defendant to mandatory imprisonment
on any legal basis. But we do not discern this broader argument in
Milsap’s opening brief. See People v. Grant, 174 P.3d 798, 803
(Colo. App. 2007) (explaining that we decline to consider an
argument asserted for the first time in a reply brief). Further,
12 Milsap presents no argument or authority to support his contention
that the 2021 exceptions to Allman do not apply when a defendant
is sentenced to mandatory imprisonment under a legal basis other
than the crime of violence statute. See People v. Houser, 2020 COA
128, ¶ 24, 490 P.3d 863, 869-70 (noting that we will not consider a
bald legal proposition presented without argument or development).
¶ 20 In any event, we are not convinced that Milsap’s attempt to
narrow Allman’s exceptions to those cases in which the non-sex
offense mandates a prison sentence can be squared with the
supreme court’s holdings in the 2021 quintet. Rather, as explained
above, in those decisions, the supreme court held that, when a
defendant receives a prison sentence for a non-sex offense followed
by an SOISP sentence for a sex offense or a sex-related offense, “[s]o
long as the probation sentence in that scenario falls within the
confines of SOLSA (as does every SOISP sentence), Allman’s
sentencing restriction is inapplicable.” Rainey, ¶ 2, 488 P.3d at
1083; Coleman, ¶ 2, 488 P.3d at 1088; Keen, ¶ 2, 488 P.3d at 1130.
¶ 21 In light of our conclusion that the 2021 quintet governs this
case, we must next determine whether, as the People argue,
Milsap’s conviction for class 5 felony attempted sexual assault is a
13 “sex offense” governed by SOLSA and subject to Manaois or whether
it is a “sex-related offense” subject to Keen. Under the applicable
statutes, class 5 felony attempted sexual assault is a not a sex
offense for purposes of SOLSA. See § 18-1.3-1003(5)(a)(I)(A), (b),
C.R.S. 2025 (an attempt to commit a sex offense is a sex offense for
purposes of SOLSA if such criminal attempt would constitute a
class 2, 3, or 4 felony). Rather, it is a sex-related offense subject to
SOISP. See § 18-1.3-1007(1)(a), C.R.S. 2025 (“[T]he court shall
require a person, as a condition of probation, to participate in the
intensive supervision probation program established pursuant to
this section if the person is convicted of . . . [c]riminal
attempt . . . to commit any of the offenses specified in section
18-1.3-1003(5)(a), which attempt . . . would constitute a class 5
felony.”); see also Manaois, ¶¶ 40, 46, 488 P.3d at 1109-11 (holding
that a defendant convicted of a sex-related offense is subject to
SOISP under section 18-1.3-1007(1)(a)); Keen, ¶ 25, 488 P.3d at
1134-35 (same). Therefore, Milsap’s sentences fall squarely within
the scope of Keen. For these reasons, we hold that the court was
authorized to sentence Milsap to prison on his second degree
14 assault conviction followed by SOISP on his attempted sexual
assault conviction. See Keen, ¶¶ 1-2, 40, 488 P.3d at 1130, 1138.
B. Even if the District Court Modified Milsap’s Sentence, the Modification Does Not Require Reversal
¶ 22 Milsap next argues that the court improperly modified his
sentence when it entered the April order, in which the court said
that his SOISP sentence would run concurrently with the parole
component of his prison sentence, and that the court violated his
due process rights by entering the April order outside his presence
and without his knowledge. We assume for purposes of our
analysis that Milsap preserved this argument even though he did
not object to the April order when he purportedly first became
aware of it upon entering SOISP in November 2020. See People v.
Miller, 113 P.3d 743, 749 (Colo. 2005) (“[C]onstitutional harmless
error analysis is reserved for those cases in which the defendant
preserved his claim for review by raising a contemporaneous
objection.”). But even if he did not preserve the argument, Milsap’s
failure to object would not preclude us from considering whether
the court violated his constitutional rights by modifying his
sentence if he lacked the opportunity to object when he learned of
15 the April order. See Crim. P. 51 (“[I]f a party has no opportunity to
object to a ruling or order, the absence of an objection does not
thereafter prejudice him.”); Zoll v. People, 2018 CO 70, ¶ 17, 425
P.3d 1120, 1125 (applying constitutional harmless error when the
defendant did not have an opportunity to contemporaneously
object).
¶ 23 Nonetheless, assuming, without deciding, that the April order
constituted a sentence modification and that the court violated
Milsap’s constitutional due process rights by entering the order, see
Zoll, ¶ 19, 425 P.3d at 1126; People v. Oglethorpe, 87 P.3d 129, 133
(Colo. App. 2003), we conclude that any such error does not require
reversal.
¶ 24 “[W]e review trial errors of constitutional dimension that were
preserved by objection for constitutional harmless error.” Hagos v.
People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119; see also Zoll, ¶ 15,
425 P.3d at 1125 (holding that a violation of a defendant’s due
process rights presents a constitutional issue). Such an error
requires reversal unless the reviewing court can say the error was
harmless beyond a reasonable doubt. Hagos, ¶ 11, 288 P.3d at
119. The State bears the burden of proving that an error was
16 harmless beyond a reasonable doubt. Id. (Although the People do
not argue harmlessness in this appeal — they solely argue that the
court did not modify Milsap’s sentence — the prosecutor argued
harmlessness at the revocation hearing by noting that “the change
from consecutive to concurrent . . . worked to . . . Milsap’s
advantage by not extending his sentence beyond the conclusion of
his period of parole.” We can affirm on any ground supported by
the record even if the court did not rely on or contemplate that
ground. People v. Ray, 2025 CO 42M, ¶ 29, 575 P.3d 400, 419.)
¶ 25 First, we are convinced that, as the prosecutor explained, the
modification of Milsap’s sentence to run SOISP concurrently with
his parole term inured to his benefit. When given the opportunity
to explain how the proceeding would have been different if Milsap
had knowledge of, or been present for, the sentence modification,
defense counsel declined to comment on whether Milsap “would
have objected [to the sentence modification] and had a sentence run
even longer by virtue of a consecutive probation sentence.” See
People v. Hernandez, 2019 COA 111, ¶ 24, 487 P.3d 1095, 1101
(“[I]f particular facts show that the defendant’s presence would be
17 useless or only slightly beneficial, proceeding in the defendant’s
absence will be harmless beyond a reasonable doubt.”).
¶ 26 Second, even if Milsap was not directly notified of the April
order at the time the court entered it, the record reflects that
defense counsel received notification of, and agreed to, the sentence
modification. See Zoll, ¶¶ 22, 25, 425 P.3d at 1127 (holding that a
violation of the defendant’s due process rights was harmless beyond
a reasonable doubt in part because defense counsel was present
for, and represented the defendant at, the relevant proceeding).
¶ 27 Finally, as the prosecutor argued, even if Milsap did not learn
of the sentence modification until he entered SOISP, he did not
timely assert his objection to the April order as impermissibly
entered without his knowledge and outside his presence. Milsap’s
failure to timely object suggests that he approved of the sentence
modification when he learned of it. See People v. Petschow, 119
P.3d 495, 499 (Colo. App. 2004) (explaining that, without the
contemporaneous objection rule, “a defendant could intentionally
withhold an objection to a constitutional deficiency, on appeal
argue that the error was not harmless beyond a reasonable doubt,
and thus, unfairly manipulate the judicial process”).
18 ¶ 28 Thus, we conclude that any violation of Milsap’s due process
rights when the court entered the April order was harmless beyond
a reasonable doubt.
¶ 29 Lastly, despite framing his argument as a constitutional due
process violation claim, Milsap also relies on the statutory notice
requirement under section 18-1.3-204(4)(a), C.R.S. 2025. To the
extent Milsap intended to assert a separate statutory notice
violation, see, e.g., People v. Calderon, 2014 COA 144, ¶¶ 24-28,
356 P.3d 993, 996-97, we conclude that, for the reasons set forth
above, Milsap failed to establish prejudice resulting from the alleged
violation. See People v. Cardenas, 2015 COA 94M, ¶ 18, 411 P.3d
956, 962 (“Harmless error analysis generally applies to violations of
statutory rights.”); see also Crim. P. 52(a) (requiring that, when
reviewing for harmless error, “[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded”); Hagos, ¶ 12, 288 P.3d at 119 (“Under [the
nonconstitutional harmless error] standard, reversal is required
only if the error affects the substantial rights of the parties.”).
19 C. The District Court Did Not Err by Revoking Milsap’s SOISP Sentence
¶ 30 We next consider — and reject — Milsap’s argument that the
court erred by granting the probation officer’s complaint to revoke
Milsap’s SOISP sentence.
¶ 31 Probation is a privilege, not a right. Byrd v. People, 58 P.3d
50, 55 (Colo. 2002). “The issues for determination in a probation
revocation proceeding are whether the defendant has violated a
valid condition of his . . . probation and, if so, what action is
appropriate in light of the violation.” People v. Ickler, 877 P.2d 863,
866 (Colo. 1994).
¶ 32 “The question whether probation has been violated is one of
fact for the trial court . . . .” People v. Elder, 36 P.3d 172, 173 (Colo.
App. 2001). We defer to a court’s factual findings if competent
evidence in the record supports them. People v. Pitts, 13 P.3d 1218,
1221 (Colo. 2000).
¶ 33 A court possesses the discretion to revoke or continue the
probation of an offender who violates a condition of probation.
§ 16-11-206(5), C.R.S. 2025; Elder, 36 P.3d at 173-74. In
determining whether to revoke probation, “the sentencing court
20 balances the probationer’s interest in demonstrating a responsible
lifestyle with society’s interest in seeking protection against the
possibility of recidivism.” Byrd, 58 P.3d at 55. The decision to
revoke a defendant’s probation is within the court’s discretion, and
we will not disturb it unless “the trial court’s judgment is against
the manifest weight of the evidence.” Elder, 36 P.3d at 173-74.
¶ 34 Milsap does not challenge the court’s finding that he violated
his SOISP conditions. Rather, he asserts that the court’s revocation
of his SOISP sentence was against the manifest weight of the
evidence because he substantially complied with the SOISP
conditions: (1) he only had one positive drug test; (2) he did not
appear on time for one scheduled appointment with his probation
officer, although he met with the officer at a different appointment
later that same day; (3) he had obtained permission to leave
Colorado to attend his sister’s funeral, although he left the state
before signing the required documents; and (4) he was compliant
with sex offender treatment until he left Colorado for the funeral.
We perceive no error.
¶ 35 At the revocation hearing, a probation supervisor testified that
Milsap submitted one drug test positive for cocaine and that he
21 missed two appointments with his probation officer. The supervisor
acknowledged that, after missing one of the appointments, Milsap
attended an appointment later that same day.
¶ 36 The probation supervisor further testified that Milsap left
Colorado to travel to his sister’s funeral without approval because
he had not submitted a safety plan or secured a travel permit.
Furthermore, after leaving the state, Milsap stopped communicating
with the probation department.
¶ 37 In addition, the probation supervisor testified that Milsap
failed to complete sex offender treatment successfully. The
prosecution submitted as an exhibit the discharge report from
Milsap’s sex offender treatment facility. Contrary to Milsap’s
representation, he was not in compliance with his treatment at the
time he left Colorado:
This unsuccessful discharge is in response to Mr. Milsap’s violation of treatment and intervention contracts, accrual of absences while on intervention contracts, going to unapproved locations, tattooing without permission from his Community Supervision Team (CST), accessing the internet and social media without permission or monitoring services in place, and a lack of transparency with his treatment team.
22 ¶ 38 The report says that, although Milsap “initially reported
motivation and desire to be compliant in treatment,” he accrued ten
absences, four of which occurred while he was on a “no-tolerance
treatment intervention contract.” According to the report, Milsap
demonstrated “a pattern of poor communication skills, a lack of
accountability for his responsibility while in treatment and in the
community, a lack of motivation to adhere to rules and restrictions
of supervision and treatment, and a lack of transparency with his
CST.” This behavior was problematic because “[o]ffense-specific
treatment is only effective when a person is willing to engage in the
process, demonstrates compliance with supervision and treatment
requirements, and possesses the internal motivation to make
effective change.” The last part of the report contains a detailed
explanation of Milsap’s noncompliance with treatment.
¶ 39 For these reasons, the report concludes that Milsap “does not
appear appropriate for community-based offense-specific treatment
at this time and may benefit from a higher level of structure or
containment.” After the supervisor testified, the prosecution called
Milsap as a witness. Milsap invoked his Fifth Amendment right to
remain silent in response to the following questions: (1) whether he
23 was aware of, and signed, the conditions of SOISP; (2) whether he
asked probation if he could travel to Oklahoma; (3) whether he
failed to appear for a probation appointment; (4) whether he
stopped reporting to, and communicating with, probation; and
(5) whether he was unsuccessfully discharged from sex offender
treatment. See Byrd, 58 P.3d at 56-57 (concluding that because
“the rights extended to a probationer are significantly reduced when
compared to the accused facing criminal charges,” the Fifth
Amendment “permits a probationer to decline to answer specific
questions at the revocation hearing, but this refusal to answer may
be used against [him] to revoke probation”). Thus, Milsap’s
invocation of his Fifth Amendment rights at the revocation hearing
further supported the probation officer’s arguments for revocation
of Milsap’s SOISP sentence. The court found that Milsap violated
his SOISP conditions by leaving the state without authorization,
failing to report to probation, and being unsuccessfully discharged
from sex offender treatment. At the resentencing hearing, the court
indicated that it had reviewed the record, an updated sex-offense
specific evaluation, and an updated presentence investigation
report that “outline[d] [Milsap’s] history prior to this case and then
24 subsequent to this case.” And, significantly, the court noted that
Milsap had recently been charged with new offenses against “a
separate intimate partner.” The court found that Milsap’s
underlying conduct was a “significant event” and that he had been
involved in another incident involving the same woman he had
threatened with a machete and sexually assaulted. The court also
referenced comments Milsap made during his sex-offense specific
evaluation, including his recognition that he had difficulty
controlling his anger and coping when things did not go his way.
¶ 40 The court then revoked Milsap’s SOISP sentence and
resentenced him to four years in the DOC. The court explained
that, in crafting the appropriate sentence, it had considered
Milsap’s previous criminal acts against the victim. The court
further noted that a probation sentence would not be feasible
because Milsap was subject to DOC sentences in separate criminal
cases. Lastly, the court recognized that the DOC offered programs
that could assist Milsap in addressing the issues he identified in his
evaluation.
¶ 41 On this record, we are not convinced that Milsap substantially
complied with his SOISP conditions or that, even if he did
25 substantially comply with them, the court’s revocation of Milsap’s
SOISP sentence was against the manifest weight of the evidence.
See People v. Loveall, 231 P.3d 408, 416 (Colo. 2010) (“[A]ny single
probation violation could justify a district court’s decision to
revoke . . . .”); Ickler, 877 P.2d at 866-67 (holding that the court did
not abuse its discretion by revoking the defendant’s probation
because the defendant failed to participate in and cooperate with
treatment); People v. Nance, 221 P.3d 428, 433 (Colo. App. 2009)
(“Since a defendant is not entitled to probation upon resentencing,
he . . . has every incentive to abide by the terms of probation to
avoid incarceration.”).
III. Disposition
¶ 42 The order is affirmed.
JUDGE DUNN and JUDGE KUHN concur.