Peo v. Milsap

24CA0940 Peo v Milsap 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0940
City and County of Denver District Court No. 11CR2695
Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James E. Milsap,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE LIPINSKY
Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 The Colorado Supreme Court painted with a broad brush in

Allman v. People by announcing that “when a court sentences a

defendant for multiple offenses in the same case, it may not impose

imprisonment for certain offenses and probation for others.” 2019

CO 78, ¶ 40, 451 P.3d 826, 835. On a single day in June 2021,

however, a divided supreme court announced five opinions that

carved out exceptions to Allman’s sweeping language when a court

imposes a prison sentence and a consecutive sentence on Sex

Offender Intensive Supervision Probation (SOISP) under the

Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA),

§§ 18-1.3-1001 to -1012, C.R.S. 2025. See People v. Rainey, 2021

CO 53, ¶ 16, 488 P.3d 1081, 1085; People v. Coleman, 2021 CO 52,

¶ 18, 488 P.3d 1086, 1090; People v. Lowe, 2021 CO 51, ¶ 17, 488

P.3d 1122, 1126; People v. Keen, 2021 CO 50, ¶ 40, 488 P.3d 1127,

1138; People v. Manaois, 2021 CO 49, ¶ 69, 488 P.3d 1099,

1116-17.

¶2 In two of the 2021 quintet of cases, the defendant was

convicted of a crime subject to a mandatory prison sentence and a

separate offense subject to SOISP. See Coleman, ¶¶ 4, 7, 20, 488

P.3d at 1088-91; Keen, ¶¶ 5, 8, 21, 36-39, 488 P.3d at 1131-33,

1
1137-38. In the other three cases, the defendant was not convicted

of any crime for which prison time was mandated. See Rainey, ¶ 5,

16 n.3, 488 P.3d at 1084, 1085 n.3; Lowe, ¶ 5, 488 P.3d at 1124;

Manaois, ¶ 8, 488 P.3d at 1104.

¶3 Today, we consider James E. Milsap’s argument that the

general rule of Allman — and not the exceptions to Allman

discussed in the five 2021 cases — applies when, like here, a

defendant pleads guilty to a crime that is not subject to a

mandatory prison sentence and to a crime that is subject to SOISP.

We conclude that, under these facts, consistent with the reasoning

of the 2021 cases, Allman does not bar imposing consecutive

sentences to the custody of the Department of Corrections (DOC)

and to SOISP.

¶4 Because we reject Milsap’s other contentions of error, we

affirm the district court’s order revoking his sentence to SOISP.

I. Background

¶5 While on probation for a previous felony, Milsap threatened his

girlfriend with a machete before sexually assaulting her. He was

charged with menacing and sexual assault.

2
¶6 Milsap pleaded guilty to added counts of second degree

assault (a class 4 felony) and attempted sexual assault (a class 5

felony) in exchange for dismissal of the original counts. In his plea

agreement, Milsap stipulated to a sentence within a range of five to

ten years in the custody of the DOC for second degree assault and a

consecutive eight years on SOISP for attempted sexual assault. The

district court imposed a ten-year prison sentence, followed by a

three-year parole period, and a consecutive eight-year SOISP

sentence. As Milsap’s release from prison approached, the

probation department sought clarification from the court as to

whether Milsap needed to serve the SOISP sentence consecutively to

or concurrently with the three-year parole term. In April 2019, the

court issued an order (the April order) saying that “[b]y agreement

of counsel and by this [o]rder of the [c]ourt, probation will run

concurrent to parole.” Milsap was later released to parole and

began serving his SOISP sentence. In November 2020, he signed a

document confirming his understanding of the conditions of SOISP,

including that “PROBATION WILL RUN CONCURRENT TO

PAROLE.”

3
¶7 In June 2021, Milsap’s probation officer filed a complaint to

revoke Milsap’s SOISP, alleging that he had violated its conditions

by testing positive for cocaine, being unsuccessfully discharged

from sex offender treatment, failing to attend probation

appointments, and leaving Colorado without permission. In

addition, the probation department received reports that Milsap had

never returned to Colorado. The court issued a warrant for Milsap’s

arrest in June 2021, but he was not arrested until March 2023.

Also in March 2023, the parole board discharged Milsap’s parole.

At the conclusion of a two-day hearing (the revocation hearing) on

the revocation complaint, Milsap argued that the prosecution had

presented insufficient evidence to establish that he had violated the

SOISP conditions. He additionally asserted that his sentence to

prison followed by SOISP was illegal and that the court had violated

his constitutional right to due process by modifying his sentence to

run SOISP concurrently with his parole term in his absence and

without his knowledge. According to Milsap, he was not present

when the court entered the April order, and, at the time, he believed

that his probation would not begin until after he completed his

parole.

4
¶8 The court determined that Milsap’s sentence to prison followed

by SOISP was not illegal. The court further said that, although the

April order changed Milsap’s sentence from consecutive to

concurrent, his due process rights were not violated because his

counsel had agreed to the modification, and Milsap did not object

when he learned of the change upon entering SOISP in November

2020. Finally, the court found that the prosecution had introduced

sufficient evidence to establish that Milsap had violated the

conditions of his SOISP sentence. At the resentencing hearing, the

court noted that Milsap had discharged his prison sentence. It then

revoked his SOISP sentence and resentenced him to four years in

the custody of the DOC on the attempted sexual assault conviction.

II. Analysis

¶9 Milsap contends that the district court erred by revoking his

SOISP sentence because (1) his original sentence to prison followed

by SOISP was illegal; (2) the court’s order modifying his SOISP

sentence to run concurrently with the parole component of his

prison sentence without his knowledge and outside his presence

violated his due process rights; and (3) he substantially complied

5
with the conditions of SOISP. We address — and reject — each of

Milsap’s assertions in turn.

A. Milsap’s Original Sentence Was Legal

¶ 10 In Allman, the supreme court concluded that, when a court

sentences a defendant for multiple offenses in the same case, the

court may not impose imprisonment for certain offenses and

probation for others. Allman, ¶¶ 3, 28, 33-40, 451 P.3d at 828,

833-35. The court explained that “[a] court’s power to sentence,

both to prison and probation, derives entirely from statute” and that

“the probation statute does not grant the courts the power to

impose sentences to both imprisonment and probation in a

multi-count case.” Id. at ¶ 28, 451 P.3d at 833.

¶ 11 In Manaois, the supreme court limited Allman to cases in

which the court sentences the defendant to prison and probation

under the general sentencing statutes following the defendant’s

convictions for multiple non-sex offenses. Manaois, ¶¶ 2-3, 488

P.3d at 1103. The supreme court explained in Manaois that

“Allman’s sentencing prohibition . . . does not apply in cases where

a defendant receives a prison sentence for a non-sex offense and a

consecutive SOISP sentence for a sex offense” in accordance with

6
SOLSA, which the court described as an “intricate and stand-alone

sentencing scheme.” Id. at ¶¶ 2-5, 22, 69, 488 P.3d at 1103, 1106,

1115-16.

¶ 12 In Keen, the supreme court extended Manaois’s exception to

Allman to those cases “where the defendant receives a prison

sentence for a non-sex offense and a consecutive probation

sentence for an offense that does not qualify as a ‘sex offense’ but

that nevertheless falls within SOLSA’s scope and requires

participation in SOISP.” Keen, ¶¶ 1-2, 19, 31, 40, 488 P.3d at 1130,

1133, 1136, 1138. An offense that does not meet SOLSA’s

definition of a “sex offense” but nonetheless falls within SOLSA’s

scope is referred to as a “sex-related offense[].” Id. at ¶ 1 n.1, 488

P.3d at 1130 n.1; Manaois, ¶ 46, 488 P.3d at 1110-11.

¶ 13 Milsap asserts that in Keen, Coleman, and Rainey, the

supreme court determined that the exceptions to Allman’s general

rule apply only when the defendant’s non-sex offense conviction

subjects the defendant to a mandatory prison sentence. He argues

that in each of these cases the defendant was convicted of a per se

crime of violence or an offense that met the definition of a crime of

violence because it involved serious bodily injury or the use of a

7
deadly weapon. See § 18-1.3-406(2)(a)(I), C.R.S. 2025; People v.

Banks, 9 P.3d 1125, 1130 (Colo. 2000) (explaining that an offense is

a per se crime of violence if the statute defining the offense

specifically requires crime of violence sentencing under section

18-1.3-406). Milsap argues that Allman controls when the

conviction for the non-sex offense — such as his second degree

assault conviction — does not require a prison sentence.

¶ 14 The breadth of the holdings in Manaois, Keen, Coleman, and

Rainey could not be clearer. In Manaois, the supreme court

clarified that Allman did not prohibit the imposition of consecutive

prison-SOISP sentences when a defendant is convicted of a non-sex

offense and a sex offense arising from the same incident. Manaois,

¶ 5, 488 P.3d at 1103. In Keen, the supreme court reiterated that

“Manaois teaches that the rule of Allman doesn’t apply in

multi-count cases where a defendant receives: (1) a prison sentence

for a non-sex offense; and (2) a consecutive probation sentence for a

‘sex offense’ pursuant to [SOLSA], requiring participation in

[SOISP].” Keen, ¶ 1, 488 P.3d at 1130. Keen stands for the

proposition that “Allman does not prohibit courts from sentencing a

defendant in a multi-count case to prison for a non-sex offense

8
followed by SOISP for another offense — regardless of whether the

latter is a sex offense requiring an indeterminate sentence or a

sex-related offense requiring a determinate sentence.” Id. at ¶ 2,

488 P.3d at 1130; see Rainey, ¶ 15, 488 P.3d at 1085; Coleman,

¶ 2, 488 P.3d at 1087; see also Snedeker v. People, 2025 CO 10,

¶ 3, 564 P.3d 301, 304 (“[W]hen a sentence is illegal under Allman

and a defendant has already served the prison portion of the

sentence, the court has the authority to reimpose a probationary

term because probation remains a legal sentencing option at

resentencing. . . . [I]t does not violate Allman for a court to sentence

a defendant to imprisonment in one case and probation in a

separate case.”).

¶ 15 In Keen and Coleman, the defendants pleaded guilty to

non-sex offenses that were per se crimes of violence. Keen, ¶¶ 8,

36, 488 P.3d at 1131-32, 1137; Coleman, ¶ 7, 488 P.3d at 1089. In

upholding the legality of the sentences imposed in those

cases — prison followed by SOISP — the supreme court said that its

decisions were “buoyed by the crime of violence statute, which is

implicated by” the defendants’ convictions for “non-sex offense[s]”

and requires prison sentences. Coleman, ¶¶ 4, 20, 488 P.3d at

9
1088, 1090-91; Keen, ¶¶ 5, 21, 36-39, 488 P.3d at 1131, 1133,

1137-38. But the court expressly recognized that the defendants’

convictions for crimes of violence were not the basis for its

decisions. The court explained that because the defendants were

sentenced for crimes of violence, the crime of violence statute

provided “additional support” or “an independent basis” for

concluding that Allman’s prison-probation restriction did not apply.

Coleman, ¶¶ 4, 20, 488 P.3d at 1088, 1090-91 (“[W]e view the crime

of violence statute as permitting prison-probation sentences where

a defendant . . . is sentenced for a crime of violence and a

non-violent crime in the same case.”); see Keen, ¶ 39, 488 P.3d at

1138. Milsap maintains, incorrectly, that the defendant in Rainey

was convicted of a non-sex offense that subjected him to mandatory

imprisonment under the crime of violence statute. In Rainey, ¶ 5,

488 P.3d at 1084, the defendant pleaded guilty to child abuse,

which is not a per se crime of violence. See § 18-6-401, C.R.S.

2025. And simply because an offense meets the statutory definition

of a crime of violence does not mean that a defendant convicted of

that offense is necessarily subject to crime of violence sentencing.

See § 18-1.3-406(3), (5); Banks, 9 P.3d at 1130 (“[C]rime of violence

10
sentencing . . . applies when . . . the prosecution pleads and proves

use, or possession and threatened use, of a deadly weapon, or

serious bodily injury . . . .”).

¶ 16 The Rainey court expressly acknowledged that, because the

defendant did not plead guilty to a crime of violence, the crime of

violence statute was “immaterial to [its] analysis.” Rainey, ¶ 16 n.3,

488 P.3d at 1085 n.3. Thus, in Rainey, the supreme court did not

rely on Keen’s crime of violence analysis to uphold the challenged

sentence. Id.

¶ 17 Milsap further fails to acknowledge that, in Manaois, the

supreme court upheld the imposition of consecutive prison-SOISP

sentences even though the defendant was convicted of a non-sex

offense that was not a crime of violence. See Manaois, ¶¶ 3-6, 8,

488 P.3d at 1103-04. In upholding the sentences, the Manaois

court recognized that, when a defendant is convicted of a sex

offense and a non-sex offense arising out of the same incident,

SOLSA places only one restriction on the sentences that may be

imposed: “[I]f the court sentences a defendant to prison for the sex

offense, it must order that sentence and the sentence for the other

offense (whether to prison or probation) to be ‘served consecutively

11
rather than concurrently.’” Id. at ¶ 57, 488 P.3d at 1113 (emphasis

added) (quoting § 18-1.3-1004(5)(a), C.R.S. 2025).

¶ 18 Because the crime of violence statute only provided a

nonessential, independent basis to support the supreme court’s

holdings in Keen and Coleman, and because the court did not rely

on the statute to reach the same conclusion in Manaois and Rainey,

we reject Milsap’s assertion that the exceptions to Allman only apply

when a non-sex offense conviction subjects the defendant to

mandatory imprisonment under the crime of violence statute.

¶ 19 We note that, in his reply brief, Milsap purports to clarify the

Allman argument in his opening brief, asserting that he did not

solely rest the mandatory imprisonment argument in his opening

brief on offenses for which imprisonment is required under the crime

of violence statute. He claims that he asserted in his opening brief

that Keen, Coleman, and Rainey do not apply when a non-sex

offense conviction subjects a defendant to mandatory imprisonment

on any legal basis. But we do not discern this broader argument in

Milsap’s opening brief. See People v. Grant, 174 P.3d 798, 803

(Colo. App. 2007) (explaining that we decline to consider an

argument asserted for the first time in a reply brief). Further,

12
Milsap presents no argument or authority to support his contention

that the 2021 exceptions to Allman do not apply when a defendant

is sentenced to mandatory imprisonment under a legal basis other

than the crime of violence statute. See People v. Houser, 2020 COA

128, ¶ 24, 490 P.3d 863, 869-70 (noting that we will not consider a

bald legal proposition presented without argument or development).

¶ 20 In any event, we are not convinced that Milsap’s attempt to

narrow Allman’s exceptions to those cases in which the non-sex

offense mandates a prison sentence can be squared with the

supreme court’s holdings in the 2021 quintet. Rather, as explained

above, in those decisions, the supreme court held that, when a

defendant receives a prison sentence for a non-sex offense followed

by an SOISP sentence for a sex offense or a sex-related offense, “[s]o

long as the probation sentence in that scenario falls within the

confines of SOLSA (as does every SOISP sentence), Allman’s

sentencing restriction is inapplicable.” Rainey, ¶ 2, 488 P.3d at

1083; Coleman, ¶ 2, 488 P.3d at 1088; Keen, ¶ 2, 488 P.3d at 1130.

¶ 21 In light of our conclusion that the 2021 quintet governs this

case, we must next determine whether, as the People argue,

Milsap’s conviction for class 5 felony attempted sexual assault is a

13
“sex offense” governed by SOLSA and subject to Manaois or whether

it is a “sex-related offense” subject to Keen. Under the applicable

statutes, class 5 felony attempted sexual assault is a not a sex

offense for purposes of SOLSA. See § 18-1.3-1003(5)(a)(I)(A), (b),

C.R.S. 2025 (an attempt to commit a sex offense is a sex offense for

purposes of SOLSA if such criminal attempt would constitute a

class 2, 3, or 4 felony). Rather, it is a sex-related offense subject to

SOISP. See § 18-1.3-1007(1)(a), C.R.S. 2025 (“[T]he court shall

require a person, as a condition of probation, to participate in the

intensive supervision probation program established pursuant to

this section if the person is convicted of . . . [c]riminal

attempt . . . to commit any of the offenses specified in section

18-1.3-1003(5)(a), which attempt . . . would constitute a class 5

felony.”); see also Manaois, ¶¶ 40, 46, 488 P.3d at 1109-11 (holding

that a defendant convicted of a sex-related offense is subject to

SOISP under section 18-1.3-1007(1)(a)); Keen, ¶ 25, 488 P.3d at

1134-35 (same). Therefore, Milsap’s sentences fall squarely within

the scope of Keen. For these reasons, we hold that the court was

authorized to sentence Milsap to prison on his second degree

14
assault conviction followed by SOISP on his attempted sexual

assault conviction. See Keen, ¶¶ 1-2, 40, 488 P.3d at 1130, 1138.

B. Even if the District Court Modified Milsap’s Sentence,
the Modification Does Not Require Reversal

¶ 22 Milsap next argues that the court improperly modified his

sentence when it entered the April order, in which the court said

that his SOISP sentence would run concurrently with the parole

component of his prison sentence, and that the court violated his

due process rights by entering the April order outside his presence

and without his knowledge. We assume for purposes of our

analysis that Milsap preserved this argument even though he did

not object to the April order when he purportedly first became

aware of it upon entering SOISP in November 2020. See People v.

Miller, 113 P.3d 743, 749 (Colo. 2005) (“[C]onstitutional harmless

error analysis is reserved for those cases in which the defendant

preserved his claim for review by raising a contemporaneous

objection.”). But even if he did not preserve the argument, Milsap’s

failure to object would not preclude us from considering whether

the court violated his constitutional rights by modifying his

sentence if he lacked the opportunity to object when he learned of

15
the April order. See Crim. P. 51 (“[I]f a party has no opportunity to

object to a ruling or order, the absence of an objection does not

thereafter prejudice him.”); Zoll v. People, 2018 CO 70, ¶ 17, 425

P.3d 1120, 1125 (applying constitutional harmless error when the

defendant did not have an opportunity to contemporaneously

object).

¶ 23 Nonetheless, assuming, without deciding, that the April order

constituted a sentence modification and that the court violated

Milsap’s constitutional due process rights by entering the order, see

Zoll, ¶ 19, 425 P.3d at 1126; People v. Oglethorpe, 87 P.3d 129, 133

(Colo. App. 2003), we conclude that any such error does not require

reversal.

¶ 24 “[W]e review trial errors of constitutional dimension that were

preserved by objection for constitutional harmless error.” Hagos v.

People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119; see also Zoll, ¶ 15,

425 P.3d at 1125 (holding that a violation of a defendant’s due

process rights presents a constitutional issue). Such an error

requires reversal unless the reviewing court can say the error was

harmless beyond a reasonable doubt. Hagos, ¶ 11, 288 P.3d at

119. The State bears the burden of proving that an error was

16
harmless beyond a reasonable doubt. Id. (Although the People do

not argue harmlessness in this appeal — they solely argue that the

court did not modify Milsap’s sentence — the prosecutor argued

harmlessness at the revocation hearing by noting that “the change

from consecutive to concurrent . . . worked to . . . Milsap’s

advantage by not extending his sentence beyond the conclusion of

his period of parole.” We can affirm on any ground supported by

the record even if the court did not rely on or contemplate that

ground. People v. Ray, 2025 CO 42M, ¶ 29, 575 P.3d 400, 419.)

¶ 25 First, we are convinced that, as the prosecutor explained, the

modification of Milsap’s sentence to run SOISP concurrently with

his parole term inured to his benefit. When given the opportunity

to explain how the proceeding would have been different if Milsap

had knowledge of, or been present for, the sentence modification,

defense counsel declined to comment on whether Milsap “would

have objected [to the sentence modification] and had a sentence run

even longer by virtue of a consecutive probation sentence.” See

People v. Hernandez, 2019 COA 111, ¶ 24, 487 P.3d 1095, 1101

(“[I]f particular facts show that the defendant’s presence would be

17
useless or only slightly beneficial, proceeding in the defendant’s

absence will be harmless beyond a reasonable doubt.”).

¶ 26 Second, even if Milsap was not directly notified of the April

order at the time the court entered it, the record reflects that

defense counsel received notification of, and agreed to, the sentence

modification. See Zoll, ¶¶ 22, 25, 425 P.3d at 1127 (holding that a

violation of the defendant’s due process rights was harmless beyond

a reasonable doubt in part because defense counsel was present

for, and represented the defendant at, the relevant proceeding).

¶ 27 Finally, as the prosecutor argued, even if Milsap did not learn

of the sentence modification until he entered SOISP, he did not

timely assert his objection to the April order as impermissibly

entered without his knowledge and outside his presence. Milsap’s

failure to timely object suggests that he approved of the sentence

modification when he learned of it. See People v. Petschow, 119

P.3d 495, 499 (Colo. App. 2004) (explaining that, without the

contemporaneous objection rule, “a defendant could intentionally

withhold an objection to a constitutional deficiency, on appeal

argue that the error was not harmless beyond a reasonable doubt,

and thus, unfairly manipulate the judicial process”).

18
¶ 28 Thus, we conclude that any violation of Milsap’s due process

rights when the court entered the April order was harmless beyond

a reasonable doubt.

¶ 29 Lastly, despite framing his argument as a constitutional due

process violation claim, Milsap also relies on the statutory notice

requirement under section 18-1.3-204(4)(a), C.R.S. 2025. To the

extent Milsap intended to assert a separate statutory notice

violation, see, e.g., People v. Calderon, 2014 COA 144, ¶¶ 24-28,

356 P.3d 993, 996-97, we conclude that, for the reasons set forth

above, Milsap failed to establish prejudice resulting from the alleged

violation. See People v. Cardenas, 2015 COA 94M, ¶ 18, 411 P.3d

956, 962 (“Harmless error analysis generally applies to violations of

statutory rights.”); see also Crim. P. 52(a) (requiring that, when

reviewing for harmless error, “[a]ny error, defect, irregularity, or

variance which does not affect substantial rights shall be

disregarded”); Hagos, ¶ 12, 288 P.3d at 119 (“Under [the

nonconstitutional harmless error] standard, reversal is required

only if the error affects the substantial rights of the parties.”).

19
C. The District Court Did Not Err
by Revoking Milsap’s SOISP Sentence

¶ 30 We next consider — and reject — Milsap’s argument that the

court erred by granting the probation officer’s complaint to revoke

Milsap’s SOISP sentence.

¶ 31 Probation is a privilege, not a right. Byrd v. People, 58 P.3d

50, 55 (Colo. 2002). “The issues for determination in a probation

revocation proceeding are whether the defendant has violated a

valid condition of his . . . probation and, if so, what action is

appropriate in light of the violation.” People v. Ickler, 877 P.2d 863,

866 (Colo. 1994).

¶ 32 “The question whether probation has been violated is one of

fact for the trial court . . . .” People v. Elder, 36 P.3d 172, 173 (Colo.

App. 2001). We defer to a court’s factual findings if competent

evidence in the record supports them. People v. Pitts, 13 P.3d 1218,

1221 (Colo. 2000).

¶ 33 A court possesses the discretion to revoke or continue the

probation of an offender who violates a condition of probation.

§ 16-11-206(5), C.R.S. 2025; Elder, 36 P.3d at 173-74. In

determining whether to revoke probation, “the sentencing court

20
balances the probationer’s interest in demonstrating a responsible

lifestyle with society’s interest in seeking protection against the

possibility of recidivism.” Byrd, 58 P.3d at 55. The decision to

revoke a defendant’s probation is within the court’s discretion, and

we will not disturb it unless “the trial court’s judgment is against

the manifest weight of the evidence.” Elder, 36 P.3d at 173-74.

¶ 34 Milsap does not challenge the court’s finding that he violated

his SOISP conditions. Rather, he asserts that the court’s revocation

of his SOISP sentence was against the manifest weight of the

evidence because he substantially complied with the SOISP

conditions: (1) he only had one positive drug test; (2) he did not

appear on time for one scheduled appointment with his probation

officer, although he met with the officer at a different appointment

later that same day; (3) he had obtained permission to leave

Colorado to attend his sister’s funeral, although he left the state

before signing the required documents; and (4) he was compliant

with sex offender treatment until he left Colorado for the funeral.

We perceive no error.

¶ 35 At the revocation hearing, a probation supervisor testified that

Milsap submitted one drug test positive for cocaine and that he

21
missed two appointments with his probation officer. The supervisor

acknowledged that, after missing one of the appointments, Milsap

attended an appointment later that same day.

¶ 36 The probation supervisor further testified that Milsap left

Colorado to travel to his sister’s funeral without approval because

he had not submitted a safety plan or secured a travel permit.

Furthermore, after leaving the state, Milsap stopped communicating

with the probation department.

¶ 37 In addition, the probation supervisor testified that Milsap

failed to complete sex offender treatment successfully. The

prosecution submitted as an exhibit the discharge report from

Milsap’s sex offender treatment facility. Contrary to Milsap’s

representation, he was not in compliance with his treatment at the

time he left Colorado:

This unsuccessful discharge is in response to
Mr. Milsap’s violation of treatment and
intervention contracts, accrual of absences
while on intervention contracts, going to
unapproved locations, tattooing without
permission from his Community Supervision
Team (CST), accessing the internet and social
media without permission or monitoring
services in place, and a lack of transparency
with his treatment team.

22
¶ 38 The report says that, although Milsap “initially reported

motivation and desire to be compliant in treatment,” he accrued ten

absences, four of which occurred while he was on a “no-tolerance

treatment intervention contract.” According to the report, Milsap

demonstrated “a pattern of poor communication skills, a lack of

accountability for his responsibility while in treatment and in the

community, a lack of motivation to adhere to rules and restrictions

of supervision and treatment, and a lack of transparency with his

CST.” This behavior was problematic because “[o]ffense-specific

treatment is only effective when a person is willing to engage in the

process, demonstrates compliance with supervision and treatment

requirements, and possesses the internal motivation to make

effective change.” The last part of the report contains a detailed

explanation of Milsap’s noncompliance with treatment.

¶ 39 For these reasons, the report concludes that Milsap “does not

appear appropriate for community-based offense-specific treatment

at this time and may benefit from a higher level of structure or

containment.” After the supervisor testified, the prosecution called

Milsap as a witness. Milsap invoked his Fifth Amendment right to

remain silent in response to the following questions: (1) whether he

23
was aware of, and signed, the conditions of SOISP; (2) whether he

asked probation if he could travel to Oklahoma; (3) whether he

failed to appear for a probation appointment; (4) whether he

stopped reporting to, and communicating with, probation; and

(5) whether he was unsuccessfully discharged from sex offender

treatment. See Byrd, 58 P.3d at 56-57 (concluding that because

“the rights extended to a probationer are significantly reduced when

compared to the accused facing criminal charges,” the Fifth

Amendment “permits a probationer to decline to answer specific

questions at the revocation hearing, but this refusal to answer may

be used against [him] to revoke probation”). Thus, Milsap’s

invocation of his Fifth Amendment rights at the revocation hearing

further supported the probation officer’s arguments for revocation

of Milsap’s SOISP sentence. The court found that Milsap violated

his SOISP conditions by leaving the state without authorization,

failing to report to probation, and being unsuccessfully discharged

from sex offender treatment. At the resentencing hearing, the court

indicated that it had reviewed the record, an updated sex-offense

specific evaluation, and an updated presentence investigation

report that “outline[d] [Milsap’s] history prior to this case and then

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subsequent to this case.” And, significantly, the court noted that

Milsap had recently been charged with new offenses against “a

separate intimate partner.” The court found that Milsap’s

underlying conduct was a “significant event” and that he had been

involved in another incident involving the same woman he had

threatened with a machete and sexually assaulted. The court also

referenced comments Milsap made during his sex-offense specific

evaluation, including his recognition that he had difficulty

controlling his anger and coping when things did not go his way.

¶ 40 The court then revoked Milsap’s SOISP sentence and

resentenced him to four years in the DOC. The court explained

that, in crafting the appropriate sentence, it had considered

Milsap’s previous criminal acts against the victim. The court

further noted that a probation sentence would not be feasible

because Milsap was subject to DOC sentences in separate criminal

cases. Lastly, the court recognized that the DOC offered programs

that could assist Milsap in addressing the issues he identified in his

evaluation.

¶ 41 On this record, we are not convinced that Milsap substantially

complied with his SOISP conditions or that, even if he did

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substantially comply with them, the court’s revocation of Milsap’s

SOISP sentence was against the manifest weight of the evidence.

See People v. Loveall, 231 P.3d 408, 416 (Colo. 2010) (“[A]ny single

probation violation could justify a district court’s decision to

revoke . . . .”); Ickler, 877 P.2d at 866-67 (holding that the court did

not abuse its discretion by revoking the defendant’s probation

because the defendant failed to participate in and cooperate with

treatment); People v. Nance, 221 P.3d 428, 433 (Colo. App. 2009)

(“Since a defendant is not entitled to probation upon resentencing,

he . . . has every incentive to abide by the terms of probation to

avoid incarceration.”).

III. Disposition

¶ 42 The order is affirmed.

JUDGE DUNN and JUDGE KUHN concur.

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