People v. Abdul-Rahman

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
October 31, 2024

2024COA118

No. 23CA0486, People v. Abdul-Rahman — Criminal Law —
Parole — Revocation Proceedings — State Board of Parole —
Appeals to Appellate Body of the Board — Judicial Review

A division of the court of appeals considers whether a parolee

must pursue an administrative appeal of a parole revocation

decision with the State Board of Parole before seeking judicial

review of the lawfulness of the decision. The division concludes

that the applicable statutes do not require an administrative appeal

to precede judicial review of a parole revocation decision.

Accordingly, the division addresses the merits of the

defendant’s appeal. In doing so, the division affirms the district

court’s order denying the defendant’s Crim. P. 35(c) motion.
COLORADO COURT OF APPEALS 2024COA118

Court of Appeals No. 23CA0486
Boulder County District Court No. 09CR2035
Honorable Ingrid S. Bakke, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shams Abdul-Rahman,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE GROVE
Fox, J., concurs
Sullivan, J., dissents

Announced October 31, 2024

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

Jeffrey C. Parsons, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Shams Abdul-Rahman, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion alleging that his

parole was unlawfully revoked. In resolving this appeal, we answer

the novel question of whether a parolee must pursue an

administrative appeal of a parole revocation decision with the State

Board of Parole (Board) before seeking judicial review of the

lawfulness of the decision.

¶2 Upon review of the applicable statutes, we conclude that they

do not require an administrative appeal to precede judicial review of

a parole revocation decision. Accordingly, we address the merits of

Abdul-Rahman’s appeal and affirm the court’s order denying his

Crim. P. 35(c) motion.

I. Background

¶3 In 2011, a jury convicted Abdul-Rahman of sexual assault. In

accordance with the Sex Offender Lifetime Supervision Act, the trial

court imposed an indeterminate sentence of twenty years to life on

sex offender intensive supervision probation. See § 18-1.3-1003(4),

(5)(a)(I)(A), C.R.S. 2024; § 18-1.3-1004(2)(a), C.R.S. 2024.

Subsequently, the court found that Abdul-Rahman violated certain

conditions of his probation, revoked the probationary sentence, and

1
resentenced him to four years to life in prison. See § 18-1.3-

1004(1)(a); § 18-1.3-1010(2)(a), C.R.S. 2024. A division of this court

affirmed the trial court’s order revoking Abdul-Rahman’s probation

and resentencing him to prison. People v. Abdul-Rahman, (Colo.

App. No. 13CA0536, Apr. 2, 2015) (not published pursuant to

C.A.R. 35(f)).

¶4 In 2014, the postconviction court denied Abdul-Rahman’s first

Crim. P. 35(c) motion. A division of this court affirmed the order in

part, reversed it in part, and remanded the case for an evidentiary

hearing on two of Abdul-Rahman’s claims. People v. Abdul-

Rahman, (Colo. App. No. 16CA0743, Nov. 16, 2017) (not published

pursuant to C.A.R. 35(e)). After a hearing, the postconviction court

denied the remanded claims, and a division of this court affirmed

the order. People v. Abdul-Rahman, (Colo. App. No. 18CA1846,

Sept. 26, 2019) (not published pursuant to C.A.R. 35(e)).

¶5 At some point, Abdul-Rahman was released on parole. See

§ 17-22.5-403(7)(b), C.R.S. 2024; § 18-1.3-1006(1)(a), C.R.S. 2024.

In December 2019, he was arrested and charged with third degree

assault (as we discuss below, that case was subsequently

dismissed). Around the same time, Abdul-Rahman was

2
unsuccessfully terminated from his sex offender treatment program.

In the termination letter, the treatment provider explained that

Abdul-Rahman “ha[d] made on and off progress in treatment” and

“ha[d] a history of lying to his [therapist] and withholding details

around his life outside of treatment.” An updated Sex Offender

Treatment Intervention and Progress Scale assessment determined

that Abdul-Rahman was a high risk to reoffend. The treatment

provider concluded that, “[g]iven Mr. Abdul-Rahman[’s]

unsuccessful engagement in treatment and disrespectful and

aggressive behavior towards his wife and lying to his [therapist], he

may not be amenable to treatment” and was “a risk to the

community’s safety.” The provider was not willing to accept Abdul-

Rahman for future treatment.

¶6 Abdul-Rahman’s parole officer filed a revocation complaint,

alleging that Abdul-Rahman had committed three violations of the

terms and conditions of his parole: (1) he committed a criminal

offense; (2) he was unsuccessfully terminated from treatment; and

(3) he had an undisclosed adult relationship with a person

identified as “Ness.” At a January 2020 hearing, the Board found

3
that Abdul-Rahman had violated the conditions of his parole and

revoked it.

¶7 In November 2020, Abdul-Rahman filed a motion under Crim.

P. 35(c)(2)(VII) arguing, as relevant here, that his parole had been

unlawfully revoked because he did not have the opportunity to

present evidence and witnesses at the parole violation hearing and

was not permitted to cross-examine his parole officer.

¶8 The postconviction court summarily denied the motion, finding

that, “even if what [Abdul-Rahman] sa[id] [wa]s true, he d[id] not

show how the proposed witness testimony would have changed the

outcome of the parole hearing” and that “[t]here [wa]s insufficient

information available for the [c]ourt to reasonably conclude that

presenting additional witnesses would have made a difference in the

outcome.” The court also found that Abdul-Rahman was afforded

the opportunity to cross-examine his parole officer and that his

claim was based on the parole officer’s failure to substantively

respond to certain questions posed on cross-examination.

¶9 Abdul-Rahman now appeals the postconviction court’s order

affirming the revocation of his parole.

4
II. Availability of Judicial Review

¶ 10 As a threshold matter, the People argue that this appeal is not

properly before us because Abdul-Rahman was statutorily required

to pursue an administrative appeal of the parole revocation decision

with the Board before initiating judicial review of the decision. We

are not persuaded.

A. Parole Revocation Legal Authority

¶ 11 The Board is an administrative entity located within Colorado’s

Executive Branch. See § 17-2-201(1)(a), C.R.S. 2024; State Bd. of

Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 968 (Colo. 1997);

In re Question Concerning State Jud. Rev. of Parole Denial, 610 P.2d

1340, 1341 (Colo. 1980); see also § 24-1-105(1)(b), C.R.S. 2024.

Among other things, the Board is responsible for holding hearings

on parole revocation complaints. See § 17-2-103(2)(b), (3)(a), C.R.S.

2024; § 17-2-201(4)(b), (7), (9)(b); § 17-22.5-403(8)(b); see also § 18-

1.3-1010(1)(a) (“A sex offender paroled pursuant to section 18-1.3-

1006 is subject to arrest and revocation of parole as provided in

section[] 17-2-103 . . . .”). Section 17-2-201(4)(b) explicitly exempts

such hearings from the requirements set forth in section 24-4-105,

C.R.S. 2024, which outlines the procedures for “Hearings and

5
determinations” under the State Administrative Procedure Act. See

generally §§ 24-4-101 to -109, C.R.S. 2024.

¶ 12 The statutory procedures for addressing a parole revocation

complaint are as follows. A parolee is entitled to a hearing, and

“one member of the [B]oard shall hear the case to a conclusion.”

§ 17-2-103(2)(b). Upon a determination that a sex offender1 parolee

violated a parole condition, the Board “shall continue the parole in

effect, modify the conditions of parole . . . or revoke the parole and

order the return of the sex offender to a place of confinement . . . for

any period of time up to the remainder of the sex offender’s natural

life.” § 17-22.5-403(8)(b).

¶ 13 Once a decision to revoke parole is made, however, the

applicable statutes appear to conflict as to the parolee’s avenue of

review.

¶ 14 Section 17-2-103(2)(b) states that, after the parole revocation

case is heard to a conclusion by one Board member, “[t]he parolee

1 The term “sex offender” is defined by section 18-1.3-1003(4) C.R.S.

2024. Sex offenders are subject to mandatory indeterminate
sentencing for a minimum period that varies by the type of sex
offense committed and a mandatory maximum of the remainder of
the offender’s natural life. § 18-1.3-1004, C.R.S. 2024.

6
may appeal to two members of the [B]oard.” See § 17-2-201(9)(c).

This two-member panel, which excludes the Board member who

conducted the revocation hearing, see id., has been referred to as

the appellate body of the Board (Appellate Body). See People v.

Back, 2013 COA 114, ¶ 13. Section 17-2-201(9)(c) states that, “[i]f

the parolee decides to appeal the decision to revoke his parole, such

appeal shall be filed within thirty days of such decision.”

¶ 15 However, section 17-2-201(4)(b), which empowers the Board to

conduct parole revocation hearings, states, without reference to the

Appellate Body, that “[j]udicial review of any revocation of parole

shall be held pursuant to section 18-1-410(1)(h), C.R.S. [2024].”

Section 18-1-410(1)(h) permits every person convicted of a crime to

apply for postconviction relief on the basis “that there has been

unlawful revocation of parole, probation, or conditional release.”

The Colorado Supreme Court gave effect to this statutory provision

through the promulgation of Crim. P. 35(c)(2)(VII). See People v.

Diaz, 985 P.2d 83, 87 (Colo. App. 1999) (While “[t]he General

Assembly has the power to enact substantive rules and statutes,”

“the supreme court has the power to promulgate rules governing

7
practice and procedure in civil and criminal cases.”); see also People

v. Dye, 2024 CO 2, ¶ 33.

¶ 16 The People do not thoroughly explain why, in their view,

Abdul-Rahman’s failure to appeal his revocation to the Appellate

Body before seeking judicial review deprives us of subject matter

jurisdiction over this appeal. But it appears that they are relying on

the doctrine of administrative exhaustion, which “requires a party

to pursue available statutory administrative remedies before

obtaining judicial review of a claim” and which deprives a court of

jurisdiction to hear an action “[w]here a party fails to exhaust these

remedies.” Thomas v. Fed. Deposit Ins. Corp., 255 P.3d 1073, 1077

(Colo. 2011).

B. Standard of Review and Statutory Interpretation Authority

¶ 17 Statutory interpretation is a question of law that we review de

novo. People v. Gallegos, 2013 CO 45, ¶ 7.

¶ 18 When interpreting a statute, our primary purpose is to

ascertain and give effect to the General Assembly’s intent. Cowen v.

People, 2018 CO 96, ¶ 12. “To do so, we look first to the language

of the statute, giving its words and phrases their plain and ordinary

meanings.” McCoy v. People, 2019 CO 44, ¶ 37. “We read statutory

8
words and phrases in context, and we construe them according to

the rules of grammar and common usage.” Id.

¶ 19 Our interpretation of a statute “must also endeavor to

effectuate the purpose of the legislative scheme.” Id. at ¶ 38. Thus,

we must “read that scheme as a whole, giving consistent,

harmonious, and sensible effect to all of its parts, and we must

avoid constructions that would render any words or phrases

superfluous or lead to illogical or absurd results.” Id.

¶ 20 “[I]f the language in a statute is clear and unambiguous, we

give effect to its plain meaning and look no further.” Cowen, ¶ 12.

“Only if the statutory language is susceptible to more than one

reasonable interpretation and is therefore ambiguous may we resort

to extrinsic aids of construction to address the ambiguity and

decide which reasonable interpretation to accept based on the

legislature’s intent.” Id.

C. Analysis

¶ 21 Relying on People v. Back, 2013 COA 114, the People assert

that a court may not consider a defendant’s Crim. P. 35(c) motion

challenging the revocation of his parole unless the defendant first

“appeal[s] his revocation to the appellate body of the parole board.”

9
The Back division, however, did not resolve this question. Instead,

the division merely described one avenue by which a parolee could

seek review of a parole revocation decision. We do not read its

decision as foreclosing any other authorized procedures for seeking

judicial review.

[A]fter the parole board revokes an individual’s
parole, [the parolee] may then appeal the
decision to the appellate body of the parole
board. See § 17-2-103(2)(b), C.R.S. 2012. If
the appellate body affirms the parole board’s
order, the parolee may then file a motion with
the district court based on an allegation that
the decision results in the unlawful revocation
of parole. See § 18-1-410(1)(h), C.R.S. 2012;
Crim. P. 35(c)(2)(VII). It is not until the district
court has ruled on the Crim. P. 35(c) motion
that the parolee may appeal the decision for
our review.

Back, ¶ 13.

¶ 22 Indeed, the Back division was focused on a different question

and only discussed the procedural aspects of parole revocation

review as part of its threshold inquiry into whether the defendant’s

re-release on parole rendered the substantive issue moot. Id. at

¶¶ 10-14. The division elected to address the issue because it was

capable of repetition, yet evading review, in light of the appellate

10
process that Back had pursued and the opinion describes. Id. at ¶¶

10, 13-14.

¶ 23 Accordingly, we do not agree with the People that Back

resolved the jurisdictional issue before us. But to the extent that

the Back division did intend to dictate the only procedure by which

a parolee can seek review of a parole revocation decision, we choose

to depart from that holding. See Chavez v. Chavez, 2020 COA 70, ¶

13 (divisions of the court of appeals are not bound by the decisions

of other divisions).

¶ 24 Viewing the statutory scheme as a whole, we conclude that an

administrative appeal of a parole revocation to the Appellate Body is

not a prerequisite to judicial review of the decision. See People v.

Thomas, 2020 COA 19M, ¶ 57 (We must discern the particular

meaning of a statute’s words and phrases “in the context of the

statute as a whole.”), rev’d on other grounds, 2021 CO 84; People v.

Sheth, 2013 COA 33, ¶ 6 (“We read the statute as a whole and

construe each provision consistently and harmoniously with the

overall statutory design.”).

¶ 25 Section 17-2-103(2)(b) states that a defendant whose parole

has been revoked “may appeal [that decision] to two members of the

11
board.” “[T]he legislature’s use of the term ‘may’ is generally

indicative of a grant of discretion or choice among alternatives.”

A.S. v. People, 2013 CO 63, ¶ 21. Thus, it appears that the plain

language of the statute outlining the appellate procedure does not

require a parolee to pursue an administrative appeal of his

revocation before seeking judicial review under Crim. P. 35(c)(2)(VII).

¶ 26 But the definition of “may” depends on context. As a division

of this court recently recognized, “[w]here a statute or ordinance

uses the word ‘may’ to refer to an administrative appeal process,

Colorado courts have consistently imposed an exhaustion

requirement.” Colo. Stormwater Council v. Water Quality Control

Div. of the Colo. Dep’t of Pub. Health & Env’t, 2023 COA 11, ¶ 29.

¶ 27 In Colorado Stormwater Council, the division concluded that

the use of “may” in the statute that created an administrative

review process did not eliminate the plaintiff’s obligation to pursue

that remedy before seeking judicial review. Id. at ¶ 32. Specifically,

the division held that, “by referring to section 24-4-105 in [the

applicable statute], the General Assembly mandated an

administrative hearing for parties challenging [an administrative

action] before seeking judicial review.” Id. at ¶¶ 32, 34-40.

12
¶ 28 Here, we conclude that the legislature’s use of the term “may”

when defining the parole statutes’ administrative review process

does not mandate an appeal to the Appellate Body because, unlike

in Colorado Stormwater Council, the legislature explicitly exempted

parole revocation hearings from the requirements of section 24-4-

105. § 17-2-201(4)(b). Indeed, in reaching its conclusion, the

division in Colorado Stormwater Council distinguished two cases

because they “dealt with provisions of the [applicable statutes] that

did not direct parties to a hearing under section 24-4-105” or

“reference section 24-4-105.” Colo. Stormwater Council, ¶ 33. The

division stated that, accordingly, “the parties [in those cases] could

directly seek judicial review” or “discretionarily request

reconsideration and a hearing.” Id.

¶ 29 We recognize that, “[w]here a permissive construction of the

word ‘may’ does not fulfill the legislative purpose underlying a

statute, we will construe the word ‘to impose the mandatory

requirement associated with the word “shall.”’” A.S., ¶ 21 n.7

(quoting Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1113

(Colo. 1990)); see also Walton v. People, 2019 CO 95, ¶ 13 (“‘Shall’ is

mandatory unless there is a clear indication otherwise.”). But we

13
are not convinced that the language that a parolee “may” appeal to

the Appellate Body must be construed as a mandatory requirement

to fulfill to the legislative intent regarding parole. See § 17-2-100.2,

C.R.S. 2024 (“The general assembly hereby finds and declares that

the primary consideration for any decision to grant parole shall be

the public safety” and “that, since parole is a privilege granted by

the general assembly and not a right guaranteed under the state or

federal constitutions, if the parolee violates the conditions of his

parole, that privilege may be revoked.”).

¶ 30 Because we are not persuaded that the legislature’s use of the

term “may” in section 17-2-103(2)(b) requires the application of a

mandatory requirement, we interpret the language that a parolee

may appeal to the Appellate Body as permissive. See A.S., ¶ 21; see

also McCoy, ¶ 37.

¶ 31 Moreover, we note that section 17-2-201(4)(b) uses mandatory

language when stating that “[j]udicial review of any revocation of

parole shall be held pursuant to section 18-1-410(1)(h).” See also

People v. Melnick, 2019 COA 28, ¶ 11. Importantly, this statutory

provision refers to judicial review of “any revocation of parole,” and

14
not to judicial review of the Appellate Body’s parole revocation

decision.

¶ 32 It is true that section 17-2-201(9)(c) also contains mandatory

language that, if a parolee decides to appeal a parole revocation

decision, the appeal “shall” be filed within thirty days of such

decision. Based on the language in the rest of subsection (9)(c), we

deem the term “appeal” to refer to an administrative appeal with the

Appellate Body. See Thomas, ¶ 57. But the inclusion of the term

“shall” in this statutory provision does not persuade us that an

appeal to the Appellate Body is required before initiating judicial

review. Instead, construing the statutory provisions together, we

are convinced that the mandatory term “shall” there indicates only

that, if a parolee wants an administrative review of a revocation

decision, such appeal must be initiated within thirty days of the

decision. § 17-2-201(9)(c). Alternatively, if a parolee prefers to

proceed directly to judicial review of the revocation decision, such

review must be held pursuant to section 18-1-410(1)(h). § 17-2-

201(4)(b).

¶ 33 As the dissent points out, it may well be true that requiring a

parolee to seek an administrative review of a parole revocation

15
decision with the Appellate Body before initiating judicial review of

the decision would be the better practice. See Thomas, 255 P.3d at

1077 (The doctrine of administrative exhaustion “promotes

important policy interests, including the efficient use and

conservation of judicial resources, by ensuring that courts intervene

only if the administrative process fails to provide adequate

remedies” and “enables an agency to make initial determinations on

matters within its expertise, identify and correct its own errors, and

develop a factual record that will benefit the court if satisfactory

resolution cannot be reached through the administrative process.”).

But in our view, that would be inconsistent with the permissive

language of section 17-2-103(2)(b); the exemption of revocation

hearings from the requirements of section 24-4-105 under section

17-2-201(4)(b); and the express right to judicial review of a parole

revocation decision afforded by section 17-2-201(4)(b), section 18-1-

410(1)(h), and Crim. P. 35(c)(2)(VII).

¶ 34 Accordingly, we conclude that an appeal of a parole revocation

decision with the Appellate Body is not a prerequisite to initiating

judicial review of the decision. Thus, Abdul-Rahman’s appeal is

properly before us.

16
III. Parole Revocation Decision

¶ 35 Turning to the substantive issue in this appeal, Abdul-

Rahman contends that he should have been granted an evidentiary

hearing on his Crim. P. 35(c) motion because he alleged facts that,

if true, would entitle him to relief from the assertedly unlawful

revocation of his parole. We disagree.

A. Standard of Review and Legal Authority

¶ 36 We review a trial court’s summary denial of a Crim. P. 35(c)

motion for postconviction relief de novo. People v. Cali, 2020 CO

20, ¶ 14. Defendants need not set forth the evidentiary support for

their allegations in a Crim. P. 35 motion, but instead need only

assert facts that, if true, would provide a basis for relief. White v.

Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A Crim. P. 35(c)

motion for postconviction relief may be denied without an

evidentiary hearing only when the motion, files, and record clearly

establish that the defendant’s allegations are without merit and do

not warrant relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶ 37 At a parole revocation hearing, the division of adult parole has

the burden of establishing the alleged parole condition violation by

a preponderance of the evidence. § 17-2-103(9)(a); see also § 18-

17
1.3-1010(1)(a). However, a parole violation based on the

commission of a criminal offense must be established by proof

beyond a reasonable doubt. § 17-2-103(9)(a).

¶ 38 Any evidence having probative value is admissible at a hearing

on a parole violation complaint, regardless of its admissibility under

the rules of evidence. Id. The parolee shall have the right to

present witnesses and evidence and to confront and cross-examine

adverse witnesses. § 17-2-103(8), (9)(a).

¶ 39 If parole is revoked, the Board shall provide the parolee with a

written statement as to the evidence relied on and the reasons for

parole revocation decision. § 17-2-103(11)(a); see also § 17-2-

201(9)(b).

B. Analysis

¶ 40 Abdul-Rahman argues that the Board improperly denied him

the opportunity to present witnesses and evidence and to cross-

examine his parole officer and that, but for these errors, the Board

would not have found that he violated his parole or would have

decided that any violation did not warrant the revocation of parole.

We are not convinced.

18
¶ 41 Abdul-Rahman’s motion did not identify the parole condition

or conditions the Board found him to have violated or the reasons

for its decision to revoke his parole upon the violation findings.

Indeed, in his opening brief, Abdul-Rahman states that the

revocation of his parole was “presumably based solely on violation

#2 in the [c]omplaint, as there is no indication from the [c]ourt [f]ile

demonstrating that the prosecution made any sufficient showing

regarding violations #1 and #3 from the parole officer’s [c]omplaint.”

Yet Abdul-Rahman should be in possession of information

explaining the Board’s violation determination and its reasons for

revoking his parole. See § 17-2-103(11)(a); § 17-2-201(9)(b).

¶ 42 Thus, even if we accept as true Abdul-Rahman’s assertions

that he was denied the right to present evidence and cross-examine

witness, we are unable to determine whether he would be entitled to

relief from these alleged errors in the absence of factual allegations

as to the Board’s findings on the parole violation complaint and its

reasoning for deciding to revoke his parole. Specifically, we cannot

evaluate whether his witnesses’ testimony would have altered the

outcome of the parole violation hearing or whether the evidence

would have factored into the Board’s decision to revoke parole. See

19
People v. Delgado, 2019 COA 55, ¶ 8 (“[A] court may deny [a Crim.

P. 35(c)] motion without a hearing . . . if the claims are bare and

conclusory in nature and lack supporting factual allegations.”); see

also Martinez v. Patterson, 429 F.2d 844, 848 (10th Cir. 1970)

(parole board revocation proceedings are afforded a presumption of

correctness).

¶ 43 Importantly, we note that Abdul-Rahman continues to

challenge all three parole violation allegations, including the

allegation based on his commission of a criminal offense.

Notwithstanding the ultimate dismissal of the criminal charge, the

Board is authorized to independently evaluate the allegation and

determine whether he committed the alleged assault. See § 17-2-

103(9)(a). And if the Board found that Abdul-Rahman had violated

his parole by committing this offense, it would have done so based

on proof beyond a reasonable doubt. See id. Abdul-Rahman does

not explain why his witnesses’ testimony, if admitted, would have

changed the finding on this allegation.

IV. Disposition

¶ 44 For the reasons set forth above, we conclude that an

administrative review of a parole revocation decision by the

20
Appellate Body of the Board is not a prerequisite to the parolee’s

exercise of their right to seek judicial review of the lawfulness of the

revocation decision. Nonetheless, because the Board did not

reversibly err, we affirm the postconviction court’s order denying

Abdul-Rahman’s Crim. P. 35(c) motion.

JUDGE FOX concurs.

JUDGE SULLIVAN dissents.

21
JUDGE SULLIVAN, dissenting.

¶ 45 The majority holds that a parolee seeking judicial review of a

decision of the State Parole Board (Board) revoking their parole

need not exhaust their available administrative remedies before

seeking judicial relief under Crim. P. 35(c)(2)(VII) and section 18-1-

410(1)(h), C.R.S. 2024. Because I view a parolee’s duty to exhaust

available administrative remedies as mandatory under the

governing statutory framework and the supreme court’s precedent, I

would hold that Abdul-Rahman’s failure to avail himself of those

remedies deprived the district court of subject matter jurisdiction,

requiring that we vacate the court’s order. I therefore respectfully

dissent.

¶ 46 Our supreme court has long adhered to the doctrine of

administrative exhaustion, recognizing the doctrine is “very clearly

settled and without appreciable conflict.” Hannum v. Hillyard, 278

P.2d 1015, 1017 (Colo. 1955); accord First Nat’l Bank v. Patterson,

176 P. 498, 501 (Colo. 1918) (“The aforesaid [state tax] tribunals

were open to plaintiff in error prior to the laying of the tax, but it

refrained from seeking relief therein, and may not now complain.”).

Absent an exception, “[t]he doctrine of administrative exhaustion

22
requires a party to pursue available statutory administrative

remedies before obtaining judicial review of a claim.” Thomas v.

Fed. Deposit Ins. Corp., 255 P.3d 1073, 1077 (Colo. 2011) (emphasis

added). Exhaustion of administrative remedies is therefore the

default rule. If a party fails to exhaust available administrative

remedies, the court lacks jurisdiction to hear the action.1 Id. (citing

State v. Golden’s Concrete Co., 962 P.2d 919, 923 (Colo. 1988)).

¶ 47 Requiring administrative exhaustion serves several laudable

goals. The doctrine (1) allows agencies with subject matter

expertise to develop the necessary factual record upon which the

agency and reviewing courts may base their decisions; (2) promotes

efficiency by preventing the interruption and fragmentation of the

administrative process; (3) allows the agency an opportunity to

correct its own errors, thus preserving the agency’s autonomy; and

(4) conserves judicial resources by ensuring that reviewing courts

1 Some members of the supreme court are skeptical that a litigant’s

failure to exhaust administrative remedies constitutes a
jurisdictional defect. See Masterpiece Cakeshop, Inc. v. Scardina,
2024 CO 67, ¶ 120 (Gabriel, J., dissenting). But until a majority of
the court holds otherwise, divisions of this court are bound to apply
the supreme court’s precedent characterizing exhaustion of
administrative remedies as jurisdictional. See People v. Smith, 183
P.3d 726, 729 (Colo. App. 2008).

23
intervene only if the administrative process fails to provide an

adequate remedy. City & Cnty. of Denver v. United Air Lines, Inc., 8

P.3d 1206, 1212-13 (Colo. 2000).

¶ 48 In my view, the doctrine of administrative exhaustion fits

neatly with the statutory framework governing parole revocation

hearings. If a parolee’s initial parole revocation hearing, heard by

one Board member, results in revocation, the parolee “may appeal”

to two members of the Board, known as the appellate body, which

then hears the appeal “on the record.” § 17-2-103(2)(b), C.R.S.

2024. The appellate body doesn’t include the Board member who

presided over the initial hearing. § 17-2-201(9)(c), C.R.S. 2024.

After reviewing the record within fifteen working days of the parolee

filing their appeal, the appellate body must notify the parolee of its

decision within ten working days after reaching a decision. Id. If

the appellate body upholds the revocation, the parolee at that point

may may seek judicial review in district court. See Crim. P.

35(c)(2)(VII); § 18-1-410(1)(h); People v. Back, 2013 COA 114, ¶ 13.2

2 While the division in People v. Back, 2013 COA 114, ¶ 13,

described how the administrative appeals process precedes judicial
review, I agree with the majority that it doesn’t directly answer
whether administrative exhaustion before the Board is mandatory.

24
¶ 49 Given this statutory framework, all agree that Abdul-Rahman

had an administrative appeal remedy available to him before the

appellate body. And no one disputes that Abdul-Rahman failed to

pursue that remedy and instead proceeded directly to the district

court to challenge the Board’s initial revocation decision. Thus,

under “clearly settled” supreme court precedent, Abdul-Rahman

failed to exhaust his available administrative remedies, depriving

the district court of subject matter jurisdiction to review the Board’s

decision. Hannum, 278 P.2d at 1017; see also Kriz v. Colo. Dep’t of

Revenue, 916 P.2d 659, 661-62 (Colo. App. 1996) (vacating district

court’s judgment for lack of subject matter jurisdiction where

plaintiff failed to exhaust administrative remedies).

¶ 50 The majority concludes that exhaustion in the parole

revocation context is nonetheless optional because section 17-2-

103(2)(b) says that the parolee “may appeal” to the appellate body,

and “may” is normally construed to impose a permissive, rather

than a mandatory, obligation. But see Danielson v. Castle

Meadows, Inc., 791 P.2d 1106, 1113 (Colo. 1990) (explaining “may”

can mean “shall” if the legislature’s purpose underlying the statute

isn’t fulfilled by a permissive construction). But not even Abdul-

25
Rahman adopts this view. Although he appears to overlook section

17-2-103(2)(b)’s language, Abdul-Rahman concedes that divisions of

this court have consistently interpreted “may appeal” in the

administrative appeals process as imposing a mandatory duty to

exhaust administrative remedies. See Colo. Stormwater Council v.

Water Quality Control Div. of the Colo. Dep’t of Pub. Health & Env’t,

2023 COA 11, ¶¶ 29-30 (discussing Egle v. City & County of Denver,

93 P.3d 609, 612-13 (Colo. App. 2004), and Colorado Department of

Public Health & Environment v. Bethell, 60 P.3d 779, 783 (Colo. App.

2002)).

¶ 51 Courts in other jurisdictions have reached the same

conclusion in the administrative context, rejecting calls to dispense

with administrative exhaustion. See, e.g., Gen. Elec. Credit Corp. of

Ga. v. Metro. Dade Cnty., 346 So. 2d 1049, 1053 (Fla. Dist. Ct. App.

1977) (rejecting argument that a statute’s “may” appeal language is

“permissive in nature”); Muije v. Dep’t of Soc. & Health Servs., 645

P.2d 1086, 1087 (Wash. 1982) (statute’s use of “may appeal” “is not

merely permissive” and is “jurisdictional rather than procedural in

nature”); Gregg Cnty. v. Farrar, 933 S.W.2d 769, 775 (Tex. App.

1996) (rejecting “semantic argument” that “the employee manual

26
makes an appeal to the commissioner’s court optional by stating

that the decision of the grievance committee may be appealed”);

Terris v. Cnty. of Santa Barbara, 229 Cal. Rptr. 3d 407, 413 (Ct.

App. 2018) (“[E]xhaustion of administrative remedies is mandatory

‘even though the administrative remedy is couched in permissive

language.’”) (citation omitted). And while outside the administrative

agency setting, the United States Supreme Court and our supreme

court have come to similar conclusions in the collective bargaining

context. See Albertson’s, Inc. v. Rhoads, 582 P.2d 1049, 1050 (Colo.

1978) (citing Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965)).

Drawing on Maddox, our supreme court in Albertson’s explained

that a collective bargaining agreement that said the union “may”

submit grievances to the employer doesn’t mean that the union or

its members can skip those procedures in favor of filing a lawsuit.

See Albertson’s, 582 P.2d at 1050.

¶ 52 I agree with the reasoning of these courts. Indeed, the General

Assembly’s decision to use its permissive “may appeal” language

when describing a parolee’s ability to pursue further administrative

review makes intuitive sense. A parolee is never obligated to pursue

an administrative appeal. See § 17-2-201(9)(c) (imposing filing

27
deadline “[i]f the parolee decides to appeal”) (emphasis added). If

they so choose, it remains their prerogative to simply follow the

Board’s initial decision and forgo further administrative review.

See, e.g., Nw. Ecosystem All. v. Wash. Forest Pracs. Bd., 66 P.3d

614, 618 (Wash. 2003) (“There is . . . no mandatory duty to pursue

an administrative remedy — a party can simply give up.”). In that

event, however, the parolee must abide by the consequences of their

decision, including relinquishing their ability to seek judicial review

of the Board’s decision.

¶ 53 Even so, the majority says that the courts’ holdings in cases

like Colorado Stormwater Council, Egle, and Bethell are

distinguishable because the General Assembly explicitly exempted

parole revocation hearings from the requirements of section 24-4-

105, C.R.S. 2024, a provision within the Administrative Procedure

Act (APA). See § 17-2-201(4)(b). But I don’t see why this carve-out

from the APA matters. Section 24-4-105 of the APA is primarily

concerned with the procedural aspects of agency hearings and

determinations, so exempting an agency from its technical

requirements tells us little about whether a party must still exhaust

non-APA procedures made available by the agency. And although

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section 24-4-105(14)(c) admittedly contains an exhaustion

requirement, removing that statutory obligation doesn’t obviate a

parolee’s duty to comply with the supreme court’s default rule

mandating administrative exhaustion. Recall, the supreme court

has long required administrative exhaustion, even before the APA

existed. See, e.g., Patterson, 176 P. at 501.

¶ 54 Even putting aside a parolee’s duty to comply with

longstanding supreme court precedent, I’m not convinced that

section 17-2-201(4)(b)’s carve-out from the APA sweeps as wide as

the majority perceives. The statutory carve-out operates on the

Board, not the parolee, as shown by the section’s opening phrase,

“[t]he board has the following powers and duties.” § 17-2-201(4).

Nothing in section 17-2-201(4) purports to impose or remove a

parolee’s prerequisites to seeking judicial review.

¶ 55 In any event, the General Assembly has already indicated that

an agency’s exemption from section 24-4-105 isn’t inherently

incompatible with the doctrine of administrative exhaustion. In

section 17-1-111, C.R.S. 2024, for example, the General Assembly

has largely exempted the Department of Corrections from section

24-4-105, while in section 13-17.5-102.3(1), C.R.S. 2024, it has

29
simultaneously said that an inmate challenging prison conditions

must exhaust their administrative remedies before filing a civil

court action. Just as these two sections can coexist, so too can

section 17-2-201(4)(b) and the default rule requiring administrative

exhaustion. Cf. People v. Justice, 2023 CO 9, ¶ 34 (Courts “strive to

construe statutes harmoniously, ‘so as to avoid any conflict

between them.’”) (citation omitted).

¶ 56 The majority also relies on section 17-2-201(4)(b)’s statement

that “[j]udicial review of any revocation of parole shall be held

pursuant to section 18-1-410(1)(h),” believing it signals an implicit

legislative intent to allow parolees to sidestep review by the Board’s

appellate body. (Emphasis added.) I fail to glean such intent. The

General Assembly knows how to relieve a party from the doctrine of

administrative exhaustion when it intends to. See, e.g., § 24-50-

1113(3), C.R.S. 2024 (controversies regarding unfair labor practices

of the state or a certified employee organization “may be” submitted

to the division of labor and statistics, but a “claimant is not

required to exhaust administrative remedies” before pursuing a

legal action); § 38-12-1105(12), C.R.S. 2024 (mobile home park

landlords, home owners, and residents need not exhaust

30
administrative remedies under the division of housing’s dispute

resolution program before filing a legal action); § 25-8-1007(4),

C.R.S. 2024 (mobile home park resident may file legal action for

water quality violations without awaiting exhaustion of

administrative remedies). Had the General Assembly intended to

relieve parolees from their duty to exhaust administrative remedies,

it would have done so expressly. Cf. Pueblo Bancorporation v.

Lindoe, Inc., 63 P.3d 353, 362 (Colo. 2003) (legislature’s use of “fair

market value” in many statutes indicates it knows how to use the

phrase).

¶ 57 Finally, although the statutory framework and our supreme

court’s precedent should fully resolve this case, I harbor concerns

that the majority’s decision allowing parolees to leapfrog the Board’s

appellate body will frustrate the underlying goals served by the

doctrine of administrative exhaustion. See United Air Lines, Inc., 8

P.3d at 1212-13. For example, allowing parolees to bypass the

appellate body’s review will deprive the Board of its ability to correct

errors committed by the single Board member who presided over

the initial revocation hearing, potentially leading to even more

protracted litigation that could have been avoided. See, e.g., Town

31
of Breckenridge v. Egencia, LLC, 2018 COA 8, ¶ 67 (had party

exhausted available administrative remedies, the town’s “finance

director would have had an opportunity to apply his expertise and

may have arrived at a satisfactory determination — therefore

ultimately conserving judicial resources.”), aff’d, 2019 CO 39.

¶ 58 Dispensing with administrative exhaustion will also reduce

efficiency and result in delayed outcomes. While a parolee’s

administrative appeal progresses quickly — the appellate body must

review the administrative record within fifteen working days and

then notify the parolee of its decision within ten working days of

reaching a decision, see § 17-2-201(9)(c) — requests for judicial

review under Crim. P. 35(c) rarely move so rapidly.

¶ 59 Perhaps most relevant here, eliminating the administrative

exhaustion requirement will inhibit reviewing courts from

determining whether a parolee is ultimately entitled to relief. As the

majority explains, we’re unable to discern the basis for the Board’s

initial revocation in this case because its decision is not contained

in our appellate record. While the reason for its omission is unclear

(Abdul-Rahman should have been served with the Board’s decision,

see § 17-2-103(11)(a)), maintaining the administrative exhaustion

32
requirement would have likely fixed this problem by allowing the

appellate body an opportunity to compile a full administrative

record. See § 17-2-103(2)(b) (parolee’s administrative appeal “shall

be on the record”); Town of Breckenridge, ¶ 67 (“[P]rior

administrative review would have helped to develop a factual record

for the district court’s review.”).

¶ 60 For these reasons, I would hold that Abdul-Rahman failed to

exhaust his available administrative remedies before the Board,

depriving the district court of subject matter jurisdiction to decide

his Crim. P. 35(c) motion and requiring that we vacate the court’s

order.

¶ 61 Accordingly, I respectfully dissent.

33