v. Melnick

     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
                                                           February 21, 2019

                                

No. 18CA0930, People v. Melnick — Criminal Procedure —
Postconviction Remedies — Unlawful Revocation of Parole,
Probation, or Conditional Release; Criminal Law — Rights of
Defendant — Postconviction remedy

     In this postconviction case, a division of the court of appeals

must determine whether a parolee who appeals his parole

revocation to the Appellate Board of the Colorado State Board of

Parole is thereafter barred from raising the same issues in the

district court pursuant to Crim. P. 35(c)(2)(VII) and section 18-1-

410(1)(h), C.R.S. 2018. Because section 17-2-201(4)(b), C.R.S.

2018, explicitly provides for postconviction judicial review of a claim

that parole was revoked illegally, the division concludes that any

claims raised in the parole board appeal do not constitute claims

that were raised, or could have been raised, in a prior appeal, and

thus are not successive under Crim. P. 35(c)(3)(VI), (VII). Because
the parolee asserted sufficient facts that, if true, may warrant relief,

he is entitled to a hearing.
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 18CA0930
Douglas County District Court No. 05CR426
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hunter Adam Melnick,

Defendant-Appellant.


               ORDER AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division I
                           Opinion by JUDGE TOW
                       Taubman and Berger, JJ., concur

                        Announced February 21, 2019


Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Hunter Adam Melnick, Pro Se
¶1    Defendant, Hunter Adam Melnick, appeals the trial court’s

 denial of his Crim. P. 35(c) motion. We affirm in part, reverse in

 part, and remand for a hearing on Melnick’s challenges to his

 parole revocation.

                           I.   Introduction

¶2    In 2006, Melnick pleaded guilty to sexual assault and two

 misdemeanors — third degree assault and menacing. He received

 an aggregate sentence of thirty months in jail on the misdemeanors

 and a consecutive ten years to life on Sex Offender Intensive

 Supervision Probation (SOISP) on the sexual assault.

¶3    In 2009, after finding that Melnick violated the conditions of

 his probation, the trial court revoked Melnick’s SOISP sentence and

 resentenced him to three years to life in the custody of the

 Department of Corrections (DOC). A division of this court affirmed

 the order revoking the SOISP sentence and the imposition of the

 DOC sentence. See People v. Melnick, (Colo. App. No. 09CA2713,

 Dec. 15, 2011) (not published pursuant to C.A.R. 35(f)).

¶4    At some point, Melnick was granted parole. In November

 2017, his parole officer filed a complaint to revoke his parole based

 on violations of its conditions. After a hearing, Melnick’s parole was


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 revoked, and he was remanded to the custody of the DOC for 540

 days. The Appellate Board of the Colorado State Board of Parole

 (parole board) denied his appeal of that decision.

¶5    Melnick then filed a Crim. P. 35(c) motion, including several

 amendments, in which he asserted numerous claims relating to his

 parole revocation. The postconviction court denied the motion

 without a hearing, finding that the challenges Melnick raised in his

 appeal to the parole board were not properly brought pursuant to

 Crim. P. 35(c). The court further found that Melnick’s remaining

 claims lacked a factual and legal basis. Melnick appeals the denial

 of his Rule 35(c) motion.

       II.   Failure to Timely Consider Parole After Revocation

¶6    Melnick first contends that the parole board improperly

 refused to consider him for parole within 180 days after his parole

 was revoked, as required by section 17-2-201(14), C.R.S. 2018. We

 note that his opening brief is missing a page that, it would appear,

 contains the argument relevant to this issue.

¶7    Nevertheless, Melnick’s contention is a challenge to the parole

 board’s decision not to grant him parole — or, more specifically, not

 to grant him a parole hearing. Nothing in the text of Rule 35


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 encompasses this type of claim, and Colorado appellate courts have

 consistently declined to review such claims under that rule. See In

 re Question Concerning State Judicial Review of Parole Denial, 

, 464-65, 

, 1341 (1980) (holding that “a

 person denied parole can seek judicial review only as provided by

 C.R.C.P. 106(a)(2)”); People v. Huerta, 

 (Colo. App.

 2004) (holding that because the defendant’s challenge was not to

 the legality of his sentence, but rather to an act by the DOC or the

 parole board, the claim was not cognizable under Crim. P. 35(a)).

 Thus, the postconviction court appropriately denied this claim as

 not within the purview of the rule.

         III.   Failure to Provide a Fair and Impartial Hearing

¶8    Melnick next asserts that his right to a fair and impartial

 parole revocation hearing was violated. He claims the hearing

 officer was biased because the written “Notice of Colorado Parole

 Board Action” form that memorialized the decision to revoke his

 parole was partially completed electronically and then printed five

 days before the revocation hearing. Thus, Melnick asserts that the

 hearing officer had prejudged the matter. Melnick also argues that




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  he was prevented from introducing evidence at the hearing and that

  potentially exculpatory evidence had been destroyed.

¶9     Initially, we note that unlike Melnick’s first assertion, this

  challenge is aimed at the lawfulness of the revocation of his parole.

  This claim is explicitly governed by Rule 35(c)(2)(VII). See White v.

  Denver Dist. Court, 

 (Colo. 1988) (stating that a

  defendant’s assertions that his constitutional rights were violated at

  a parole revocation hearing are cognizable under Crim. P. 35).

  Therefore, we reject the People’s argument that this claim is a

  challenge to an action of the parole board and, thus, not cognizable

  under Crim. P. 35.

¶ 10   We review de novo a trial court’s denial of a Rule 35(c) motion

  without a hearing. People v. Gardner, 

 (Colo.

  App. 2010).

¶ 11   We conclude that the district court erroneously applied the

  language of Crim. P. 35(c). The court concluded that Melnick’s

  appeal to the parole board had the same preclusive effect that a

  direct appeal of a conviction would have. See Crim. P. 35(c)(3)(VI),

  (VII) (requiring the postconviction court to deny claims that were

  raised, or that could have been raised, in a prior appeal). However,


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  the parole statute explicitly provides for judicial review of parole

  revocation pursuant to section 18-1-410(1)(h), C.R.S. 2018. § 17-2-

  201(4)(b). If an appeal to the parole board were to preclude the

  pursuit of judicial review of the very same parole revocation

  procedures that were the subject of the appeal, section 17-2-

  201(4)(b)’s promise of judicial review would be illusory. We will not

  interpret a rule or statute in such a way as to make other statutory

  language superfluous. People v. Burnett, 

. Thus,

  Melnick’s postconviction challenge is not barred as successive

  merely because he appealed his parole revocation to the parole

  board.

¶ 12   Even if not time barred, a Rule 35 motion may be denied

  without a hearing if the motion, files, and record clearly establish

  that the defendant’s allegations are without merit and do not

  warrant relief. Ardolino v. People, 

 (Colo. 2003).

  Similarly, summary denial is appropriate where the allegations are

  “bare and conclusory in nature.” People v. Venzor, 

 (Colo. App. 2005). On the other hand, a defendant need not set

  forth the evidentiary support for his or her allegations in a Rule 35




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  motion, but instead need only assert facts that if true would provide

  a basis for relief. White, 

.

¶ 13   Melnick asserted facts that, if true, may warrant relief. First,

  he asserted that the hearing officer had prejudged his case. In

  support, he points to the preprinted form of disposition. It is, of

  course, possible that the blank form was printed, but no disposition

  was actually filled in until after the hearing. Or it is possible, as

  Melnick intimates, that because this form is only needed in the

  event that the revocation allegations are sustained, the hearing

  officer did not need to print the form unless he knew he was going

  to use it. However, neither conclusion can be reached without the

  benefit of testimony from the hearing officer.

¶ 14   Second, Melnick asserts that he was denied the opportunity to

  present witnesses and evidence. In exhibits attached to his

  postconviction motion, Melnick identifies specific witnesses and the

  general subject of their testimony.

¶ 15   Third, he alleges that he was denied the benefit of potentially

  exculpatory evidence because the cell phone that contained such

  evidence was destroyed by law enforcement officials. He asserts

  that certain text messages on his phone would have corroborated


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  his claim that his supervisor at work had provided false information

  that led to his termination from employment, which in turn led to

  his parole revocation.

¶ 16   If these allegations were established following a hearing, the

  revocation of Melnick’s parole may have been unlawful. Melnick is

  entitled to a hearing and the appointment of counsel to assist him

  at that hearing.

                            IV.   Conclusion

¶ 17   Accordingly, the order is affirmed as to the denial of Melnick’s

  challenge to the parole board’s failure to provide him a new parole

  hearing within 180 days. The remainder of the order is reversed.

  The matter is remanded to the district court with instructions to

  appoint counsel for Melnick and conduct a hearing on Melnick’s

  claims regarding the alleged improprieties in the revocation hearing.

       JUDGE TAUBMAN and JUDGE BERGER concur.




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