The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 25, 2020
2020COA101
No. 17CA1331, People v. Cooley — Criminal Law — Sentencing — Probation; Constitutional Law — Right of Familial Association
A division of the court of appeals considers what findings a
trial court must make before imposing a condition of probation
barring the probationer from having contact with his children.
Under the circumstances of this case, the division holds that the
trial court needed to make a record finding of compelling
circumstances before imposing a condition prohibiting the
probationer from having familial contact. COLORADO COURT OF APPEALS 2020COA101
Court of Appeals No. 17CA1331 El Paso County District Court No. 14CR3909 Honorable Scott Sells, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John Jacobs Cooley,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE GROVE Furman and Berger, JJ., concur
Announced June 25, 2020
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 The conditions of a sex offender’s probation often exist at the
intersection between public safety and the offender’s constitutional
rights. In this appeal, we are asked to determine whether the
district court made findings sufficient to support conditions of
defendant John Jacobs Cooley’s sex offender intensive supervision
probation (SOISP) prohibiting him from interacting with his own
children without approval from his probation officer. After finding
that he had violated these provisions, the district court revoked
Cooley’s probation and sentenced him to an indeterminate term of
two years to life in the custody of the Department of Corrections
(DOC). Because we conclude that Cooley’s probation was revoked
for the violation of a probationary term that requires a specific
justification, and because the record contains no such justification,
we reverse the district court’s order and remand the case for further
proceedings.
I. Background
¶2 Alleging that he had sexually assaulted an adult, the People
charged Cooley with two counts of second degree kidnapping, two
counts of sexual assault, two counts of unlawful sexual contact,
two counts of robbery, one count of theft, and three habitual
1 criminal counts. After reaching a plea agreement with the
prosecution, Cooley pleaded guilty to one count of sexual assault,
and, consistent with the parties’ stipulation, the district court
sentenced Cooley to SOISP for a term of ten years to life.
¶3 Cooley’s SOISP came with twenty-eight “Additional Conditions
of Probation for Adult Sex Offenders” (Additional Conditions).
Condition 4 of the Additional Conditions stated:
You shall have no contact with any children under the age of 18, including your own children, nor attempt contact except under circumstances ordered by the Court and approved in advance and in writing by the probation officer in consultation with the community supervision team. Contact includes correspondence, written or verbal [sic], telephone contact, or any communication through a third party.
Condition 5 provided:
If you have incidental contact with children, you will be civil and courteous to the children and immediately remove yourself from the situation. You will discuss the contact at your next treatment session and your next probation appointment.
¶4 The district court referenced these conditions at Cooley’s
providency hearing, informing Cooley that he would undergo a child
contact assessment (CCA) “to determine whether it’s appropriate for
2 you to be around your own children or any child under the age of
18.” The record before us, however, contains no evidence that a
CCA was ever performed.
¶5 For reasons irrelevant to this appeal, the district court revoked
and reinstated Cooley’s probation a year after he was first
sentenced. At resentencing, the court imposed the same Additional
Conditions, including Conditions 4 and 5. Five months after that,
the probation department filed another revocation complaint, this
time alleging that Cooley had violated Conditions 4 and 5 by talking
to his young daughter in his car after church.
¶6 After a hearing, the district court found that Cooley had
violated Conditions 4 and 5, revoked his probation, and set the case
for a sentencing hearing. At sentencing, citing Cooley’s repeated
failure to comply with his probation’s conditions, the court revoked
Cooley’s probation and sentenced him to an indeterminate term of
two years to life in the custody of DOC.
¶7 Cooley asserts that Conditions 4 and 5 are invalid — and thus
could not form the basis for his revocation — because they violate
his constitutional right to familial association, see United States v.
Burns, 775 F.3d 1221 (10th Cir. 2014), and are not reasonably
3 related to his rehabilitation and the purposes of probation. § 18-
1.3-204(2)(a)(XV), C.R.S. 2019; see also People v. Brockelman, 933
P.2d 1315, 1318-21 (Colo. 1997). We only reach the constitutional
challenge to Condition 4 because we conclude first that the district
court’s findings did not establish a violation of Condition 5.1
Turning then to Condition 4, we hold that the existing record does
not establish the existence of compelling circumstances necessary
to impose the restrictions on familial association that the condition
includes. We therefore reverse the district court’s order revoking
Cooley’s probation.
II. Condition 5
¶8 We need not reach Cooley’s constitutional challenge to
Condition 5 because we conclude that the district court’s findings
do not establish that he violated it.
1 We note that while Condition 5, by its plain terms, does not necessarily implicate Cooley’s right to familial association, it could be applied in a way that infringes on that right. We do not consider the constitutionality of Condition 5 as applied, however, because we conclude that the district court’s findings did not establish that Cooley violated that provision.
4 A. Preservation and Standard of Review
¶9 Cooley concedes that defense counsel did not object to the
district court’s finding that he had violated Condition 5. Reviewing
for plain error, we will reverse only if the district court committed
an error that “(1) is obvious, (2) prejudices a substantial right, and
(3) casts serious doubt on the judgment’s reliability.” People v.
Roletto, 2015 COA 41, ¶ 29.
B. Analysis
¶ 10 The district court found that Cooley violated Condition 5 “by
not immediately reporting” the contact he had with his daughter.
Cooley argues that this was plain error because Condition 5 did not
require him to immediately report the interaction.
¶ 11 We agree. By its terms, Condition 5 did not require Cooley to
“immediately report[]” the contact with his daughter. Rather,
Condition 5 states in its entirety that “[i]f you have incidental
contact with children, you will be civil and courteous to the children
and immediately remove yourself from the situation. You will
discuss the contact at your next treatment session and your next
probation appointment.” The term “immediately” clarifies what the
probationer must do in the event of incidental contact — remove
5 himself from the situation. “Immediately” does not modify the next
sentence, which instead directs the probationer to discuss the
contact with his treatment provider and probation officer at his next
appointment with each.
¶ 12 The error was plain. It was obvious because the district court
found that Cooley violated a requirement that the plain language of
Condition 5 did not impose. See People v. Pollard, 2013 COA 31M,
¶ 40 (holding that an error is obvious if it contravenes a clear
statutory command). It was also substantial and cast serious
doubt on the reliability of the judgment. As we discuss below, the
record does not support the imposition of Condition 4, and Cooley’s
violation of Condition 4 was the only other basis for the revocation
petition. We therefore cannot conclude that, had it correctly
applied the provisions of Condition 5, the district court would have
nonetheless found a violation and revoked Cooley’s probation.
¶ 13 To be clear, we do not suggest that there was insufficient
evidence to establish a violation of Condition 5. Rather, we hold
only that the factual findings that the district court made do not
support its conclusion that Cooley violated Condition 5’s
restrictions.
6 III. Condition 4
¶ 14 Next, Cooley argues that, because Condition 4 infringes on his
right to familial association, his violation of that condition could not
serve as the basis for revocation of his probation. We agree.
A. Preservation
¶ 15 Before reaching the merits of Cooley’s arguments, we consider
the People’s assertion that Cooley either affirmatively waived or
failed to preserve his constitutional challenge.
1. Affirmatively Waived
¶ 16 The People first assert that Cooley’s counsel waived his
constitutional challenge by telling the district court in argument
that the constitutionality of Condition 4 was “not necessarily” before
it. At the second sentencing hearing, defense counsel told the court
that
I think . . . absent the Court making specific findings at Mr. Cooley’s last sentencing . . . that he shouldn’t . . . for some specific reason have contact with his daughter, as required under [Burns,] . . . that violating his probation based on contact with his own daughter is unconstitutional as well. I know that is not necessarily before the Court but we want to make that record and the case needs to be preserved for appellate purposes.
7 ¶ 17 It is not clear why, given the argument surrounding the
statement, defense counsel told the court that the constitutionality
of Cooley’s probation conditions was not before it. Indeed, a
revocation hearing arising from the violation of allegedly
unconstitutional conditions of probation would seem to be an ideal
time for such a challenge. See People v. Ickler, 877 P.2d 863, 866
(Colo. 1994) (“The issues for determination in a probation
revocation proceeding are whether the defendant has violated a
valid condition of his or her probation and, if so, what action is
appropriate in light of the violation.”) (emphasis added).
¶ 18 Nonetheless, Cooley’s counsel did raise the constitutionality of
the conditions at the hearing, he cited relevant case law, and he
stated that he wished to preserve the issue for appeal, thereby
“present[ing] [the district court] with an adequate opportunity to
make findings of fact and conclusions of law” on the issue. People
v. Melendez, 102 P.3d 315, 322 (Colo. 2004). And we certainly
cannot say that counsel’s misunderstanding as to which issues
were properly before the district court amounted to an “intentional
relinquishment of a known right.” People v. Rediger, 2018 CO 32, ¶
8 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). Thus, Cooley did not waive the issue.
2. Cooley’s Constitutional Challenge Was Timely Raised
¶ 19 The People next argue that even if Cooley did not affirmatively
waive the issue, he did not raise it in a timely or sufficient manner,
and thus it was not preserved. This is so, the People claim, because
Cooley did not object to Condition 4 at the time it was imposed, and
because even if Cooley’s counsel mentioned the issue “in passing”
at hearings, Cooley never “issu[ed] a developed challenge[.]” We
disagree with both assertions.
¶ 20 Legal arguments can be preserved for appeal by raising them
at various times throughout the trial proceedings. See Berra v.
Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)
(holding that party preserved appellate argument by asserting it in
closing argument); People v. Silva, 987 P.2d 909, 913 (Colo. App.
1999) (presenting sum and substance of argument preserves the
argument for appellate review). The purpose of the
contemporaneous objection rule is to conserve judicial resources by
alerting the district court to a particular issue in order to give the
court an opportunity to correct any error that could otherwise
9 jeopardize a defendant’s right to a fair trial. People v. Pahl, 169
P.3d 169, 183 (Colo. App. 2006).
¶ 21 At Cooley’s second revocation hearing (the one at issue here),
while cross-examining Cooley’s probation officer, defense counsel
asked how the Burns decision applied to Cooley’s case:
Q: And you’re familiar with the Burns case?
A: I am.
Q: And there was a memorandum that went out in March of last year that talked about the Court needing – (inaudible) – to make specific findings that it was inappropriate for someone to have contact with their children.
A: That’s true.
Q: Okay. And you were at Mr. Cooley’s last sentencing hearing and those findings were made?
A: There was no discussion regarding contact with his children, is that what you are asking?
Q: Yes.
A: Okay. I’m sorry, yes
Later, at that same hearing, Cooley’s counsel again brought up the
Burns decision, this time in argument, as discussed earlier in Part
III.A.1. The district court did not rule on the constitutionality of the
conditions at that hearing.
10 ¶ 22 Defense counsel presented more argument on this issue at the
sentencing hearing following Cooley’s second revocation. Counsel
cited to Burns again and argued that “placing the condition on Mr.
Cooley not to have contact with his child . . . violate[d] his
fundamental right or liberty interest . . . . [O]n that ground[] I don’t
think there should have even been a violation.” At that hearing, the
People also acknowledged the Burns decision — and its applicability
to the proceedings — on three separate occasions.
¶ 23 The People argue now that Cooley should have objected to
Condition 4 “when the court first imposed the condition” or “the first
time the court revoked . . . his probation and reinstated the no-
contact provision.” Objecting at either of those times, they assert,
would have “allowed for appellate review at a time appropriate to
determining whether the condition could continue to validly serve
as the basis for a restraint.” We agree that Cooley could have —
and perhaps should have — raised this challenge at the time the
conditions were first imposed, or at his first revocation/sentencing
hearing when the conditions were reimposed. However, his failure
to do so did not deprive the district court of the opportunity to
properly consider and rule upon the issue. To be sure, Cooley’s
11 counsel raised the issue several times at both the revocation and
sentencing hearings underlying this appeal. Because the issue was
raised when the district court had an adequate opportunity to
decide the issue, Cooley preserved it for appellate review.
3. Cooley’s Constitutional Challenge was Adequately Developed
¶ 24 We also conclude that Cooley sufficiently developed his
constitutional challenge. An adequate objection allows the district
court a meaningful chance to prevent or correct the error and
creates a record for appellate review. Martinez v. People, 2015 CO
16, ¶ 14. Raising the “sum and substance” of an argument is
sufficient to preserve it. In re Estate of Ramstetter, 2016 COA 81,
¶ 68. An objection is sufficiently specific when it draws the court’s
attention to the asserted error. Martinez, ¶¶ 13-14.
¶ 25 Defense counsel and the prosecution both acknowledged the
holding of the Tenth Circuit in Burns. Further, defense counsel laid
out the argument clearly and made the argument more than once.
This development was sufficient to alert the district court to the
issue.
12 B. Standard of Review
¶ 26 We consider de novo whether a probation condition is
constitutional or statutorily authorized. People v. Devorss, 277 P.3d
829, 835 (Colo. App. 2011). We review a district court’s decision to
revoke probation, however, for an abuse of discretion. Ickler, 877
P.2d at 866. A district court abuses its discretion when its decision
is manifestly arbitrary, unreasonable, or unfair, or misapplies or
misconstrues the law. People v. Ehrnstein, 2018 CO 40, ¶ 13.
¶ 27 We review trial errors of constitutional dimension that were
preserved by objection for constitutional harmless error. Krutsinger
v. People, 219 P.3d 1054, 1058 (Colo. 2009). These errors require
reversal unless the reviewing court is “able to declare a belief that
[the error] was harmless beyond a reasonable doubt.” Hagos v.
People, 2012 CO 63, ¶ 11 (quoting Chapman v. California, 386 U.S.
18, 24 (1967)).
C. Specific Findings Were Necessary
¶ 28 The People argue that Condition 4 was valid because
conditions of probation may, in certain situations, infringe on
fundamental liberty interests. We agree with this general
proposition, but that is not the issue before us. Rather, the issue
13 we confront here is what process, if any, district courts must follow
before imposing conditions that infringe on an offender’s
fundamental constitutional rights.
¶ 29 Relying in large part on the Tenth Circuit’s opinion in Burns,
775 F.3d 1221, Cooley argues that Condition 4 unconstitutionally
infringes on his constitutional right to familial association by
prohibiting him from interacting with his own children. Although
he acknowledges that compelling circumstances can justify
restrictions on a probationer’s right to familial association, he
contends that nothing in the record supports the limitations created
by Condition 4 or establishes that those conditions are the least
restrictive available means to accomplish his probation’s legitimate
purpose.
¶ 30 In Burns, the defendant was convicted of possession of child
pornography and sentenced to sixty-three months in prison with
five years of supervised release. Id. at 1222. Similar to Condition 4
here, Burns’s supervised release (i.e., probation) barred him from
contact with any minors, including his daughter. Id. Arguing that
the condition violated his fundamental constitutional right to
familial association, Burns appealed the district court’s decision to
14 impose it. Id. Reviewing for plain error, the Tenth Circuit reversed,
holding that “when a court imposes a special condition that invades
a fundamental right or liberty interest, the court must justify the
condition with compelling circumstances.” Id. at 1223. Because
the district court had not made any such findings, it improperly
imposed the condition restricting Burns’s familial contact during
probation.
¶ 31 While we are not bound by Burns, divisions of this court —
consistent with its holding — have previously recognized that a
condition of probation that infringes upon a constitutionally
protected right must be tailored to accomplish the probation’s
legitimate purpose. See People v. Forsythe, 43 P.3d 652, 654 (Colo.
App. 2001); see also People v. Bolt, 984 P.2d 1181, 1183-84 (Colo.
App. 1999). To evaluate the validity of similar restrictions, those
opinions have considered a set of factors laid out by our supreme
court in Brockelman, 933 P.2d 1315: (1) whether the restriction is
reasonably related to the underlying offense; (2) whether the
restriction is punitive to the point of being unrelated to
rehabilitation; (3) whether the restriction is unduly severe and
restrictive; (4) whether the defendant may petition the court to lift
15 the restriction temporarily when necessary; and (5) whether less
restrictive means are available. See id. at 1319 (evaluating the
validity of probationer’s geographical restrictions); see also
Forsythe, 43 P.3d at 654 (applying the Brockelman factors when
evaluating the constitutionality of a probation condition that
restricted probationer’s unsupervised contact with her children).
¶ 32 Our difficulty in this case is that the record contains
insufficient information to apply these factors. A completed CCA
would be the ideal resource (although, depending on the remainder
of the record, not necessarily an essential one in every case), but
Cooley was never administered a CCA. It is on this shortcoming
that we find Burns persuasive.2
2 Colorado’s Sex Offender Management Board (SOMB) has reached the same conclusion. After United States v. Burns, 775 F.3d 1221 (10th Cir. 2014), was published, the SOMB issued a memorandum acknowledging that a general prohibition on contact between sex offenders and their children was no longer best practice. The memorandum recognized that the Burns decision created a presumption in favor of sex offenders having contact with their children that could only be overcome in compelling circumstances. See Colo. Sex Offender Mgmt. Bd., Position Regarding A Sex Offender’s Contact with His or Her Own Child (Mar. 18, 2016), https://perma.cc/4ZFA-35CP.
16 ¶ 33 Implicit in the approach adopted in Brockelman is that a court
striking a balance between the terms of probation and an offender’s
constitutional rights will have adequate information available to
support its exercise of discretion. See Forsythe, 43 P.3d at 654
(“The record shows that defendant had a longstanding history of
being unwilling or unable to provide safe and adequate care for her
young children.”); see also People v. Lientz, 2012 COA 118, ¶¶ 17-
18 (detailing record evidence in support of conclusion that the
conditions of probation were reasonably related to the defendant’s
rehabilitation or the purposes of probation).
¶ 34 Here, however, the record includes almost no such evidence.
In the absence of a CCA, we look to the remaining record for
findings that could justify Condition 4, but find virtually none. At
Cooley’s first sentencing hearing, the district court stated:
I’m going to sentence you to probation for ten years to life on sexual offender intensive supervised probation. You are to abide by all conditions of the adult sex offender treatment program, abide by the computer use program. You are to register as a sex offender. You are to enroll in offense specific treatment as directed by your supervising probation officer, cooperate with all conditions of treatment; have no contact with anyone under the age of
17 18 without prior approval of the supervising probation officer and treatment team.
There was no discussion about, or any objection to, Condition 4.
The district court did not address what, if any, compelling
circumstances led to the decision to restrict Cooley’s ability to see
his daughter.
¶ 35 Subsequent proceedings offer little additional information. At
Cooley’s first revocation and resentencing hearing, the district court
simply stated that it was “revoking and regranting probation for the
same ten years to life with all the SOISP conditions that previously
were imposed.” And in the revocation and resentencing hearings
that gave rise to this appeal, the court likewise did not outline its
reasons for imposing Condition 4.
¶ 36 With so little to go on — and without any immediately
apparent connection between Cooley’s offense and the need to
restrict his familial contact — we lack a sufficient record to apply
the Brockelman factors. Thus, like many other courts, we hold that,
at least in situations where the need for such restrictions is not
18 self-evident,3 conditions of probation that infringe on a defendant’s
fundamental constitutional rights must be supported by a specific
finding that (1) compelling circumstances require their imposition
and (2) less restrictive means are not available. See, e.g., United
States v. Doyle, 711 F.3d 729, 732-33 (6th Cir. 2013) (holding that
a trial court errs procedurally “if it fails, at the time of sentencing,
to state in open court its rationale for mandating a special condition
of supervised release”); United States v. Hobbs, 710 F.3d 850, 854
(8th Cir. 2013) (holding that while conditions requiring defendants
to receive permission from a probation officer before contacting
their own children are permissible, “an ‘individualized inquiry,’ and
a ‘particularized showing’ of need for the condition, is required in
each case” (quoting United States v. Springston, 650 F.3d 1153,
1156 (8th Cir. 2011))); United States v. Wolf Child, 699 F.3d 1082,
1089-94 (9th Cir. 2012) (requiring the district court to make
“enhanced” findings before imposing a special condition that
implicates the defendant’s constitutional rights); Simants v. State,
3The need for restrictions in some situations is obvious — for example, it is difficult to imagine that continued familial contact would be appropriate for a defendant who sexually assaulted a child or stepchild living in his or her household.
19 329 P.3d 1033, 1039 (Alaska Ct. App. 2014) (holding that “the
constitutional importance of a person’s right to maintain familial
relationships” required trial court to affirmatively demonstrate that
the defendant was a danger to her children before restricting
familial contact as a condition of probation); Ex parte Fineberg, Nos.
PD-1024-17 & PD-1025-17, 2018 WL 4762386, at *6 (Tex. Crim.
App. Oct. 3, 2018) (unpublished opinion) (finding that before
imposing terms of probation depriving a defendant of her
fundamental right to care, custody, and management of her own
child, the trial court “should have first afforded Appellant proper
procedural due process in the form of a hearing”). But see United
States v. Schewe, 603 F. App’x 805, 812 (11th Cir. 2015) (rejecting
need for heightened procedures or strict scrutiny when a special
condition burdens a constitutional right).
D. Remedy
¶ 37 Cooley contends that the lack of evidentiary support requires
us to reverse his revocation and remand the case with instructions
to the district court to amend or eliminate Condition 4. The People
respond that, if we do not affirm Cooley’s revocation, we should
20 remand the case so that the district court may assess whether
Condition 4 is appropriate in light of this opinion.
¶ 38 We have concluded that the district court’s findings did not
establish a violation of Condition 5, and that the existing record
does not establish that Condition 4 was constitutionally imposed.
For that reason, we must reverse the revocation of Cooley’s
¶ 39 We decline, however, to instruct the district court to amend or
eliminate Condition 4. Certainly, as the record stands, that
condition may not be imposed. But on remand, the district court
may reconsider whether Condition 4 is warranted. Once there is
sufficient information, the court may, as outlined in Brockelman,
consider whether any restrictions are adequately tailored to
accomplish the probation’s legitimate purpose. If the restriction
passes statutory and constitutional muster, the court may reimpose
Condition 4. If they do not, then the district court should amend or
eliminate the offending conditions.
IV. Conclusion
¶ 40 Because the record lacks adequate justification for the
imposition of Condition 4, and because the district court’s findings
21 did not demonstrate that Cooley had violated Condition 5, we
reverse the district court’s order revoking Cooley’s probation and
resentencing him to the DOC.
¶ 41 We remand the case to the district court so that it may take
the steps necessary to determine whether Condition 4 should be
part of Cooley’s SOISP in the future, and if so, to make the requisite
findings in support of that conclusion. If the district court
determines that circumstances do not justify the imposition of
Condition 4, then the terms of Cooley’s probation should be
amended accordingly.
JUDGE FURMAN and JUDGE BERGER concur.