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People v. Melnick

Court of Appeals of Colorado, First Division

February 21, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Hunter Adam Melnick, Defendant-Appellant.

          Douglas County District Court No. 05CR426 Honorable Paul A. King, Judge

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

          Hunter Adam Melnick, Pro Se

          OPINION

          TOW, JUDGE

         ¶ 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 After a hearing, Melnick's parole was revoked, and he was remanded to the custody of the DOC for 540 days.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 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, 199 Colo. 463, 464-65, 610 P.2d 1340, 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, 87 P.3d 266, 267 (Colo.App. 2004) (holding that because the defendant's challenge was not to the legality of his sentence, but rather to an act ...


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