Peo v. Milligan
Peo v. Milligan
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
1
¶ 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was revoked, and he was remanded back to the custody of the DOC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.
2
¶ 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
3
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).
4
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.
5
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
6
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.”
7
¶ 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
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.
8
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
9
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.