March 21, 2019

Colorado Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

The Colorado Court of Appeals issued its opinion in People v. Melnick on Thursday, February 21, 2019.

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

Print Friendly, PDF & Email

Speak Your Mind

*