Peo v. Roark

23CA0520 Peo v Roark 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0520
Adams County District Court No. 78CR7987
Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas Roark,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE MOULTRIE
J. Jones and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 9, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Douglas Roark, appeals the postconviction court’s

order denying his petition for postconviction relief under Crim. P.

35(c) without a hearing. We affirm.

I. Background

¶2 In 1978, Roark was charged with several offenses, including,

as relevant here, first degree murder and first degree sexual

assault. The circumstances underlying the charges are set forth in

People v. Roark, 643 P.2d 756 (Colo. 1982), and we need not

reiterate them here.

¶3 A jury convicted Roark of the first degree murder charge along

with several others. However, the supreme court reversed his

convictions on appeal and remanded Roark’s case to the district

court for a new trial. See id. at 774-75. On remand, the

prosecution and Roark reached a plea agreement in which Roark

pleaded guilty to first degree murder in exchange for dismissal of

the remainder of the charges. After accepting the plea agreement,

the court sentenced Roark to an indeterminate term of life in prison

with the possibility of parole after twenty years.

¶4 After being incarcerated for approximately forty-two years, the

Colorado State Board of Parole (parole board) granted Roark’s

1
application for parole in April 2020. Nearly two decades earlier, the

Colorado Department of Corrections (CDOC) had classified Roark as

an S-4 sex offender because the facts underlying his original

charges and plea included allegations of a sex offense.1 As a result,

the parole board required Roark to “participate in a sex offender

intake [and] evaluation and successfully complete treatment at the

discretion of the sex offender supervision team” as a condition of his

parole.

¶5 In October 2020, RSA, Inc. — a facility that was providing

Roark with sex offender treatment during his parole — discharged

Roark from treatment due to noncompliance. Roark’s parole officer,

Genie Connaghan, then referred Roark to Progressive Therapy

Systems (PTS) for an evaluation. Roark alleges that he received a

report from PTS saying that “treatment would be extremely difficult

1 In 2006, Roark (under an alias) filed a civil rights lawsuit against

the Colorado Department of Corrections and six of its agents under
42 U.S.C. § 1983. See Murphy v. Colo. Dep’t of Corr., 381 F. App’x
828 (10th Cir. 2010). He alleged in relevant part that the
defendants had “violated his constitutional rights by wrongfully
classifying him as a[n] S-4 sex offender and by refusing to
reconsider his sex offender classification.” Id. at 830. The federal
district court granted summary judgment in favor of the
defendants, which the Tenth Circuit Court of Appeals affirmed on
appeal. Id. at 829.

2
due to the lengthy period between the offense and treatment.” But,

according to Officer Connaghan, “Roark was denied treatment [at

PTS] because he stated he didn’t want treatment[,] and he was in

denial, even though he wasn’t in denial [while] at RSA.” Officer

Connaghan referred Roark to another treatment provider, but “due

to [Roark’s] denial, high risk, and violence of the crime,” that

provider “would not even do an intake.” Officer Connaghan filed a

complaint (the complaint) to revoke Roark’s parole. The parole

board held a hearing on the complaint in December 2020.

¶6 At the hearing, Roark pleaded guilty. Roark admitted to

“screwing up” and violating a condition of his parole by being

discharged from sex offender treatment, but he explained to the

hearing officer that the violation was a result of the numerous

barriers he faced upon release, rather than any malicious intent.

The hearing officer found Roark guilty, revoked his parole, and

remanded Roark to the CDOC. The parole board reviewed Roark’s

parole eligibility again in May 2021 but deferred the possibility of

his re-parole until May 2022.

3
¶7 In July 2021, Roark received a letter from the parole board in

response to an appeal he had filed in June 2021.2 The letter

indicated that the hearing officer rendered the decision to revoke

Roark’s parole in December 2020 and that any appeal needed to be

postmarked within thirty days of a revocation decision. Thus,

because Roark’s appeal was postmarked in June 2021 — beyond

the thirty-day deadline — his appeal was untimely, and the parole

board wouldn’t consider it.

¶8 In October 2021, Roark filed a pro se petition for

postconviction relief under Crim. P. 35(c). The postconviction court

appointed counsel for Roark, and the public defender assigned to

represent Roark later filed a supplement to Roark’s pro se petition

(collectively, postconviction motion). In his postconviction motion,

Roark asserted that he should be afforded an evidentiary hearing on

whether (1) the CDOC’s S-4 classification and requirement for

offense-specific treatment as a condition of parole violated due

process; (2) the parole revocation process violated his right to due

process; (3) the thirty-day deadline to appeal the parole revocation

2 A copy of the appeal he sent to the parole board doesn’t appear in

the record.

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was arbitrary and capricious; and (4) the parole board’s deferment

of his eligibility for re-parole in May 2021 violated double jeopardy.

After considering the prosecution’s response and Roark’s reply, the

postconviction court denied Roark’s postconviction motion without

a hearing.

¶9 Roark appeals the summary denial of his motion and asserts

that he is entitled to an evidentiary hearing on the claims for relief

that he raised in his postconviction motion. For the reasons

discussed below, we disagree.

II. Standard of Review

¶ 10 We review de novo a postconviction court’s decision to deny a

Crim. P. 35(c) motion without an evidentiary hearing. People v.

Cali, 2020 CO 20, ¶ 14. “A defendant need not set forth the

evidentiary support for his allegations in his initial Crim. P. 35

motion; instead, a defendant need only assert facts that if true

would provide a basis for relief under Crim. P. 35.” White v. Dist.

Ct., 766 P.2d 632, 635 (Colo. 1988). The purpose of an evidentiary

hearing on a Crim. P. 35(c) motion “is to receive evidence pertinent

to allegations that cannot be disposed of by reference to the trial

record alone.” People v. Fernandez, 53 P.3d 773, 775 (Colo. App.

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2002). “A court may deny a defendant’s Crim. P. 35(c) motion

without an evidentiary hearing ‘only where the motion, files, and

record in the case clearly establish that the allegations presented in

the defendant’s motion are without merit and do not warrant

postconviction relief.’” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7

(quoting Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003)).

III. The Postconviction Court Lacked Jurisdiction to Consider
Roark’s Challenge to His S-4 Sex Offender Classification Under
Crim. P. 35(c)

A. Applicable Legal Principles

¶ 11 “A trial court loses jurisdiction upon imposition of a valid

sentence except under the circumstances specified in Crim. P. 35.”

People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984), abrogated

on other grounds by, Woo v. El Paso Cnty. Sheriff’s Off., 2022 CO 56.

Once a sentence is imposed, the executive branch — of which the

CDOC and parole board are a part — “is responsible for carrying

out the court’s mandate.” People v. Barth, 981 P.2d 1102, 1105

(Colo. App. 1999); see In re Question Concerning State Jud. Rev. of

Parole Denial, 610 P.2d 1340, 1341 (Colo. 1980); People v.

Abdul-Rahman, 2024 COA 118, ¶ 11 (“The [parole] [b]oard is an

administrative entity located within Colorado’s Executive Branch.”)

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(cert. granted June 23, 2025); see also § 24-1-128.5, C.R.S. 2025

(creating the CDOC, which includes the division of adult parole and

the parole board, as an executive branch agency).

¶ 12 The CDOC has “statutory authority and discretion to classify a

defendant as a sex offender for the purposes of treatment.” People

v. McMurrey, 39 P.3d 1221, 1224 (Colo. App. 2001); see People v.

Jones, 222 P.3d 377, 380 (Colo. App. 2009); see also

§ 16-11.7-101(1), C.R.S. 2025 (declaring the need to

“comprehensively evaluate, identify, treat, manage, and monitor

adult sex offenders who are subject to the supervision of the

criminal justice system”); § 16-11.7-105(1), C.R.S. 2025 (requiring

any person defined as a sex offender who is placed on parole to

undergo appropriate treatment based on “recommendations [of] the

[CDOC]”).

¶ 13 Judicial review of executive branch decisions is limited to that

which is allowed by the separation of powers doctrine outlined in

article III of the Colorado Constitution, unless authorized by other

law. See In re Question Concerning State Jud. Rev., 610 P.2d at

1341. A defendant who asserts that his parole has been unlawfully

revoked can seek postconviction review under Crim. P. 35(c)(2)(VII).

7
An “unlawful” revocation, for purposes of review under Crim. P.

35(c)(2)(VII), includes allegations that the parole board or hearing

officer violated the due process rights afforded to a defendant

during the revocation process. See People v. Melnick, 2019 COA 28,

¶¶ 8-9. However, Colorado appellate courts have “consistently

declined” to review contentions challenging discretionary decisions

of the CDOC or the parole board pursuant to Crim. P. 35 because

such claims are not encompassed by that rule. Id. at ¶ 7.

¶ 14 Additionally, as relevant here, “[s]ex offender classification

hearings are quasi-judicial proceedings subject to review under

C.R.C.P. 106(a)(4).” Jones, 222 P.3d at 380. A complaint pursuant

to C.R.C.P. 106(a)(4) must be filed in a district court no later than

“28 days after the final decision of the [governmental] body.”

C.R.C.P. 106(b).

B. Analysis

¶ 15 Roark asserts that the CDOC unlawfully classified him as an

S-4 sex offender because he wasn’t convicted of a sex offense. He

argues that the parole board therefore couldn’t legally require him

to participate in sex offender treatment or revoke his parole for

being terminated from such treatment. The People argue that the

8
postconviction court, bound by this court’s precedent, properly

concluded that it lacked jurisdiction to consider this claim under a

Crim. P. 35(c) petition. See C.A.R. 35(e). We agree with the People.

¶ 16 In McMurrey, the defendant was classified as an S-4 sex

offender after undergoing a CDOC clinical needs assessment. 39

P.3d at 1222. The defendant, through court-appointed counsel,

challenged his sex offender classification by filing a Crim. P. 35(c)

motion with the district court. Id. at 1223. Similar to the

arguments Roark raised in his postconviction motion, the defendant

in McMurrey argued that the sex offender classification affected his

“liberty interests” and violated his right to due process. Id.

¶ 17 The McMurrey division noted that “S-4 offenders” are

“individuals whose history indicates sexual assaults or deviance for

which they may not have been convicted” and may include

individuals who accepted a plea bargain where the underlying

factual basis of the crime involved a sex offense. Id. at 1224; see

Murphy, 381 F. App’x at 829-30. The McMurrey division concluded

that, because the CDOC was authorized by statute and its own

regulations to classify inmates not convicted of sex offenses as sex

offenders, the defendant’s due process claim was a challenge to the

9
CDOC’s general statutory authority and discretion, as well as to its

authority as applied to the defendant. 39 P.3d at 1224; see also

§ 16-11.7-105(1) (requiring an adult sex offender to receive

treatment as part of placement on parole based on CDOC

recommendations after sentencing); § 16-11.7-102(1), (2)(a)(II)

(defining “adult sex offender” to include a defendant convicted “of

any criminal offense, the underlying factual basis of which involves

a sex offense”). The division concluded that the defendant’s claims

weren’t properly brought under Crim. P. 35(c). McMurrey, 39 P.3d

at 1225.

¶ 18 The division in Jones also addressed circumstances similar to

those raised by Roark’s postconviction motion. In Jones, the

division addressed the defendant’s Crim. P. 35(c) challenge to his

parole revocation for noncompliance with a parole condition

requiring him to participate in sex offender treatment based on his

classification as an S-4 sex offender. 222 P.3d at 378-79. Similar

to Roark, the defendant in Jones also challenged his classification

as an S-4 sex offender based on facts underlying a non-sex offense

conviction. Id. at 379.

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¶ 19 Affirming the district court’s denial of the defendant’s Crim. P.

35(c) motion, the Jones division noted that “[s]ex offender

classification hearings are quasi-judicial proceedings subject to

review under C.R.C.P. 106(a)(4).” 222 P.3d at 380. And, the

division concluded, “even if considered a complaint filed pursuant

to C.R.C.P. 106(a)(4),” the defendant’s challenge to his sex offender

classification was untimely because it was filed over three years

after the CDOC’s classification decision — well beyond the

jurisdictional time limit indicated in C.R.C.P. 106(b). Id.; see also

Auxier v. McDonald, 2015 COA 50, ¶ 12 (“The limitations period

prescribed by Rule 106(b) is jurisdictional and cannot be tolled or

waived.”).

¶ 20 Despite acknowledging McMurrey and Jones, Roark urges us

to consider the following language in Bertrand v. Kopcow, 199 F.

Supp. 3d 1278, 1283 (D. Colo. 2016): “Colorado courts have not

permitted challenges to parole conditions without first challenging

the original sex offender classification. Their reasoning appears to

assume that the classification, if valid, authorizes essentially any

parole condition. Such reasoning is dubious . . . .” We aren’t

persuaded.

11
¶ 21 Bertrand is a federal district court case, and its dicta isn’t

binding on us. Cf. People v. Dunlap, 975 P.2d 723, 743 (Colo. 1999)

(noting federal district court must accept state appellate courts’

interpretation of state law). And while we aren’t bound by decisions

of other divisions of this court, People v. Snelling, 2022 COA 116M,

¶ 49 n.2, we find the reasoning of McMurrey and Jones persuasive

and decline to depart from it under the facts of this case.

¶ 22 Thus, we conclude that, consistent with McMurrey and Jones,

Roark was required to challenge his sex offender classification

under C.R.C.P. 106, rather than Crim. P. 35(c). He didn’t do so.

The parole board therefore had the authority to impose the parole

condition requiring him to participate in sex offender treatment.

Jones, 222 P.3d at 380. Even if the postconviction court had

liberally construed Roark’s postconviction motion as a challenge to

the CDOC’s and the parole board’s authority under Rule 106,

Roark’s challenge was several decades too late. Id. Accordingly, the

court didn’t err by concluding it lacked jurisdiction to consider this

claim and denying Roark’s request for a hearing.

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IV. The Parole Revocation Hearing Didn’t Violate Roark’s Due
Process Rights

A. Additional Background

¶ 23 When Roark received the complaint approximately two months

before the hearing, it alleged one violation — that he failed to

comply with the condition requiring him to “follow the directives of

and cooperate with” his parole officer by being terminated from sex

offender treatment through RSA. The complaint — which contained

Roark’s signature certifying that he’d read it — was accompanied by

two documents advising him of his right to (1) legal counsel;

(2) testify; (3) present witnesses and documentary evidence;

(4) subpoena adverse witnesses; and (5) cross-examine adverse

witnesses. The advisements also stated, “THE INITIAL

APPEARANCE MAY BE A FULL EVIDENTIARY HEARING,” and

“YOU SHOULD, THEREFORE, BE PREPARED TO DEFEND

AGAINST THE CHARGE(S) ALLEG[ED].” Roark’s signature also

appeared at the bottom of each of the advisements.

¶ 24 When the hearing began, the hearing officer affirmed that

Roark had received, reviewed, and understood the complaint and

the advisements that accompanied it. The hearing officer also

13
discussed with Roark his evidentiary rights, such as his right to

present evidence and witnesses and his ability to waive legal

counsel and proceed with self-representation.

B. Applicable Legal Principles

¶ 25 “[T]he revocation of parole is not part of a criminal prosecution

and thus the full panoply of rights due a defendant in such a

proceeding does not apply to parole revocations.” People v. Loveall,

231 P.3d 408, 414 (Colo. 2010) (quoting Morrissey v. Brewer, 408

U.S. 471, 480 (1972)). However, the Colorado Supreme Court has

adopted “minimum requirements of due process” at parole

revocation hearings. People v. Atencio, 525 P.2d 461, 462 (Colo.

1974) (quoting Morrissey, 408 U.S. at 489). As relevant here, these

minimum requirements include (1) written notice of the claimed

violations of parole; (2) an opportunity to present witnesses and

documentary evidence; and (3) the right to confront and

cross-examine adverse witnesses. Id.; see § 17-2-103(8)-(9)(a),

C.R.S. 2025.

C. Analysis

¶ 26 Roark asserts that his due process rights were violated during

the parole revocation process because he (1) was denied notice of

14
the grounds for revocation; (2) wasn’t permitted to present

witnesses or evidence; and (3) wasn’t provided an opportunity to

cross-examine Officer Connaghan. We reject these assertions for

three reasons.

¶ 27 First, as noted above, the complaint expressly informed Roark

of his alleged parole violation and the supporting basis, i.e., that

Roark had been terminated from sex offender treatment for

noncompliance. Roark affirmed on the record that he had received

a copy of the complaint and had read and understood it. The

complaint itself contains Roark’s signature under a statement

certifying that he had read the complaint and the accompanying

advisements. Furthermore, Roark’s postconviction motion

acknowledges that he received, read, and understood the complaint,

which showed his termination from sex offender treatment as the

justification for the parole revocation proceedings. Thus, the record

demonstrates that Roark received notice of the grounds for

revocation of his parole — his termination from sex offender

treatment through RSA — and we reject his assertion otherwise.

¶ 28 Second, the record belies Roark’s assertion that he wasn’t

permitted to present witnesses or evidence other than his own

15
testimony. On at least three occasions during the hearing, the

hearing officer asked Roark if he had “anything further.” Roark

never indicated that he had any documentary evidence or witnesses

contradicting his admission that he had been discharged from sex

offender treatment through RSA. Likewise, the record doesn’t

demonstrate that Roark subpoenaed any witnesses or had

witnesses available at the hearing despite receiving notice of his

rights well in advance of the hearing. Thus, Roark wasn’t denied

the opportunity to present evidence or witnesses; he merely chose

not to do so.

¶ 29 Third, we disagree with Roark that he wasn’t provided with an

opportunity to cross-examine Officer Connaghan. During the

dispositional phase of the hearing, Officer Connaghan testified

before Roark’s turn to speak. While it’s true that the hearing officer

restricted Roark’s time to present mitigation of his guilty plea,

Roark could’ve used the allotted time to cross-examine Officer

Connaghan. Instead, Roark chose to use the time that the hearing

officer gave him to testify regarding the barriers he faced when

attempting to reintegrate into society after being incarcerated for

forty-two years. Regardless, the hearing officer asked Roark

16
multiple times if he had “anything further.” At no time did Roark

ask any questions of Officer Connaghan.

¶ 30 Because the record demonstrates that Roark was afforded the

“minimum requirements of due process” before and at his parole

revocation hearing, Atencio, 525 P.2d at 462 (quoting Morrissey,

408 U.S. at 489), he wasn’t entitled to an evidentiary hearing on

this claim, and the court therefore didn’t err by denying him one.

V. Enforcement of the Thirty-Day Deadline to Appeal the Parole
Board’s Revocation Decision Isn’t Arbitrary and Capricious

A. Applicable Legal Principles

¶ 31 When the parole board revokes a person’s parole, the final

disposition must be reduced to writing, and “[t]he parolee shall be

advised by the board of the final decision at the conclusion of the

hearing” or within five working days of the hearing.

§ 17-2-201(9)(b), C.R.S. 2025. A copy of the parole board’s final

order must be delivered to the parolee “within ten working days

after the completion of the hearing.” Id. “If the parolee decides to

appeal the decision to revoke his parole, such appeal shall be filed

within thirty days of such decision.” § 17-2-201(9)(c).

17
¶ 32 The parole board is an administrative entity. § 17-2-201(1)(a);

§ 24-1-105, C.R.S. 2025. As an administrative entity, the parole

board’s exercise of discretion is reviewed under an “arbitrary and

capricious” standard, meaning that the parole board acts in an

arbitrary and capricious manner if it (1) doesn’t use “reasonable

diligence and care” to receive evidence that it is authorized to

consider; (2) doesn’t give “candid and honest consideration” to the

evidence it receives; and (3) takes action based on conclusions from

the evidence that a reasonable person couldn’t reach if that person

was “fairly and honestly considering the evidence.” Rice v. Auraria

Higher Educ. Ctr., 131 P.3d 1096, 1100 (Colo. App. 2005).

B. Analysis

¶ 33 In addition to arguing that the postconviction court should

have conducted an evidentiary hearing to determine whether the

enforcement of the thirty-day revocation appeal deadline was

arbitrary and capricious, Roark asserts the postconviction court

should’ve held a hearing on whether he timely received a written

copy of the December 2020 revocation decision and whether he was

timely advised of his right to appeal that decision.

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¶ 34 As a threshold matter, we note that Roark’s latter two

arguments don’t appear to be preserved. Roark didn’t raise these

issues in his postconviction motion, nor does the court appear to

have otherwise addressed the timeliness of Roark’s receipt of the

written revocation decision or whether he was timely advised of his

right to appeal it. See Forgette v. People, 2023 CO 4, ¶ 21 (“[A]

party must present the trial court with ‘an adequate opportunity to

make findings of fact and conclusions of law on any issue before [an

appellate court] will review it.’” (citation omitted)); see also C.A.R.

28(a)(7)(A) (noting that an appellant’s brief must indicate “whether

the issue was preserved, and if preserved, the precise location in

the record where the issue was raised and where the court ruled”).

Regardless, the record demonstrates that the hearing officer

informed Roark why his parole was being revoked at the end of the

revocation hearing. See People v. Elder, 36 P.3d 172, 174 (Colo.

App. 2001) (holding that oral findings made on the record detailing

the reason for revocation and evidence in support thereof can be a

constitutionally adequate substitute for written findings). And the

hearing officer attempted to advise Roark of his right to appeal, but

Roark wouldn’t listen and instead responded with profanities.

19
¶ 35 Regarding Roark’s remaining assertion, “[i]t is only when the

[parole] [b]oard has failed to exercise its statutory duties that the

courts of Colorado have the power to review the [parole] [b]oard’s

actions.” In re Question Concerning State Jud. Rev., 610 P.2d at

1341. Roark hasn’t cited — nor have we found — any authority

demonstrating that the parole board has discretion to accept a

parolee’s appeal after the statutorily mandated deadline passes.

Thus, we conclude the parole board didn’t fail to exercise its

statutory duty. Rather, by denying Roark’s untimely appeal, it

acted consistently with section 17-2-201(9)(c)’s requirement that a

parolee wishing to appeal a parole board’s revocation decision do so

within thirty days of the decision.

¶ 36 We acknowledge that Roark appears to have believed that the

parole board’s May 2021 decision, rather than the hearing officer’s

December 2020 decision, was the decision from which the

thirty-day deadline to appeal started to run. He was incorrect.

And, because we don’t have a copy of Roark’s appeal in the record,

it’s not clear whether his June 2021 appeal was intended to be an

appeal of the hearing officer’s December 2020 revocation decision or

the parole board’s May 2021 decision rejecting his reauthorization

20
for parole. Regardless, even assuming without deciding that the

parole board has the discretion to accept an appeal that is

otherwise untimely under section 17-2-201(9)(c), given our

conclusions in Part III.B above about the parole board’s authority to

impose offense-specific parole conditions, there was no reason for it

to exercise such discretion in this case. We thus reject Roark’s

assertion that section 17-2-201(9)(c)’s thirty-day appeal deadline is

arbitrary and capricious generally or as applied to him. The

postconviction court therefore didn’t err by denying him an

evidentiary hearing on this issue raised in his postconviction

motion.

VI. The Parole Board’s Decision in May 2021 Didn’t Violate Double
Jeopardy

A. Applicable Legal Principles

¶ 37 Colorado appellate courts have consistently considered parole

a privilege; “no prisoner is entitled to it as a matter of right.” In re

Question Concerning State Jud. Rev., 610 P.2d at 1341 (citation

omitted); People v. Gallegos, 914 P.2d 449, 451 (Colo. App. 1995)

(noting Colorado recognizes parole as a privilege); accord People v.

Taylor, 74 P.3d 396, 400 (Colo. App. 2002). Furthermore, because

21
revocation of a defendant’s parole is administrative in nature, “it

does not constitute punishment, but simply reaffirms the original

sentence and requires the defendant to serve it in custody.” People

v. Sa’ra, 117 P.3d 51, 58 (Colo. App. 2004); see Gallegos, 914 P.2d

at 451. And due to the administrative character of a parole

revocation proceeding, the protections of the Double Jeopardy

Clause aren’t triggered. See Gallegos, 914 P.2d at 451.

B. Analysis

¶ 38 Roark argues that the parole board’s May 2021 denial of his

re-parole violated the Double Jeopardy Clause because it punished

him for charges that were dismissed in 1982 and increased his

reincarceration from 180 days to 1 year. See People v. Tanner, 2023

COA 97, ¶ 6 (noting that the Double Jeopardy Clause protects

against multiple punishments for the same offense); see also

§ 17-2-201(14) (providing that “[t]he [parole] board shall consider

the parole of a person whose parole is revoked . . . for a technical

violation . . . at least once within one hundred eighty days after the

revocation” if the person’s release date is more than nine months

from the date of the person’s revocation). We aren’t persuaded for

two reasons.

22
¶ 39 First, as discussed in Part III.B above, the CDOC has the

authority and discretion to classify a defendant as a sex offender for

treatment purposes when, as here, the underlying facts of a

defendant’s conviction involved a sex offense, even if the conviction

itself wasn’t for a sex offense. See McMurrey, 39 P.3d at 1224.

¶ 40 Second, the parole board’s decision to revoke Roark’s parole

wasn’t punishment but merely reaffirmed his original sentence to

life in prison and required him to serve it in custody unless he was

reauthorized for parole. Sa’ra, 117 P.3d at 58; see Gallegos, 914

P.2d at 451. Notably, section 17-2-201(14) provides that “[t]he

[parole] board shall consider the parole of a person whose parole is

revoked . . . for a technical violation . . . at least once within one

hundred eighty days after the revocation,” but it doesn’t restrict the

parole board’s ability to defer any subsequent review period for a

period of time. And, given Colorado’s longstanding precedent that

parole is a privilege, not a right, and that revocation of parole

doesn’t constitute new or additional punishment for the same

conduct for which a person was already convicted, see Gallegos,

914 P.2d at 451, we fail to see — nor does Roark explain — how the

23
parole board’s decision to defer review of his appropriateness for

re-parole violates the Double Jeopardy Clause.

¶ 41 Roark thus failed to allege facts that, even if accepted as true,

would entitle him to relief, and the postconviction court didn’t err

by declining to set this claim for a hearing.

VII. Disposition

¶ 42 The order is affirmed.

JUDGE J. JONES and JUDGE KUHN concur.

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