22CA0743 Peo v Milligan 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0743
Adams County District Court No. 83CR702
Honorable Roberto Ramirez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael N. Milligan,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE BROWN
Harris and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 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 N. Milligan, appeals the district court’s
order denying his motion for postconviction relief. We affirm.
I. Background
¶ 2 In 1984, Milligan was convicted after a jury trial of first degree
sexual assault and first degree burglary. The district court
sentenced him to the Department of Corrections (DOC) for a term
totaling sixteen years. However, due to convictions in other
counties, his mandatory release date was set in 2042.
¶ 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. After a hearing, Milligan’s parole was revoked, and he
was remanded back to the DOC to serve the remainder of his
sentence.
¶ 4 Milligan filed a pro se postconviction motion for “unlawful
revocation of parole and reincarceration period.” He asserted that
the parole board “exceeded its statutory authority” when it ordered
him to be “reincarcerated in the [DOC] for the remainder of his
sentence.” The district court denied the motion without a hearing.
2
The court found that Milligan’s challenge was “to the Board of
Parole’s actions” and because “Rule 35 challenges are not the
correct avenue for a challenge to the actions of a Board of Parole”
no relief could be provided.
II. Analysis
¶ 5 Milligan claims that the district court reversibly erred when it
denied his postconviction motion because he was subject to an
illegal sentence that the court was obligated to correct — namely,
the parole board’s misapplication of the statute governing
reincarceration following revocation of his parole. He argues 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.” The People assert that Milligan’s claim
that he “shall not be returned to prison for more than two years”
under section 17-22.5-303(2), was not preserved. However, we
need not decide whether it was preserved because we do not
perceive any error.
3
¶ 6 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. But 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 People v. Melnick, 2019 COA
28, ¶ 7. Instead, as the district court correctly recognized,
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
proceeding. See Huerta, 87 P.3d at 267.
¶ 7 Accordingly, we conclude that the district court properly
denied Milligan’s motion without a hearing.
III. Disposition
¶ 8 The order is affirmed.
JUDGE HARRIS and JUDGE LUM concur.
