Peo v. Milligan

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 After a hearing, Milligan’s parole was revoked, and he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.