v. Cooley

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
June 25, 2020

2020COA101

No. 17CA1331, People v. Cooley — Criminal Law — Sentencing
— Probation; Constitutional Law — Right of Familial
Association

A division of the court of appeals considers what findings a

trial court must make before imposing a condition of probation

barring the probationer from having contact with his children.

Under the circumstances of this case, the division holds that the

trial court needed to make a record finding of compelling

circumstances before imposing a condition prohibiting the

probationer from having familial contact.
COLORADO COURT OF APPEALS 2020COA101

Court of Appeals No. 17CA1331
El Paso County District Court No. 14CR3909
Honorable Scott Sells, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Jacobs Cooley,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE GROVE
Furman and Berger, JJ., concur

Announced June 25, 2020

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The conditions of a sex offender’s probation often exist at the

intersection between public safety and the offender’s constitutional

rights. In this appeal, we are asked to determine whether the

district court made findings sufficient to support conditions of

defendant John Jacobs Cooley’s sex offender intensive supervision

probation (SOISP) prohibiting him from interacting with his own

children without approval from his probation officer. After finding

that he had violated these provisions, the district court revoked

Cooley’s probation and sentenced him to an indeterminate term of

two years to life in the custody of the Department of Corrections

(DOC). Because we conclude that Cooley’s probation was revoked

for the violation of a probationary term that requires a specific

justification, and because the record contains no such justification,

we reverse the district court’s order and remand the case for further

proceedings.

I. Background

¶2 Alleging that he had sexually assaulted an adult, the People

charged Cooley with two counts of second degree kidnapping, two

counts of sexual assault, two counts of unlawful sexual contact,

two counts of robbery, one count of theft, and three habitual

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 criminal counts. After reaching a plea agreement with the

prosecution, Cooley pleaded guilty to one count of sexual assault,

and, consistent with the parties’ stipulation, the district court

sentenced Cooley to SOISP for a term of ten years to life.

¶3 Cooley’s SOISP came with twenty-eight “Additional Conditions

of Probation for Adult Sex Offenders” (Additional Conditions).

Condition 4 of the Additional Conditions stated:

You shall have no contact with any children
under the age of 18, including your own
children, nor attempt contact except under
circumstances ordered by the Court and
approved in advance and in writing by the
probation officer in consultation with the
community supervision team. Contact
includes correspondence, written or verbal
[sic], telephone contact, or any communication
through a third party.

Condition 5 provided:

If you have incidental contact with children,
you will be civil and courteous to the children
and immediately remove yourself from the
situation. You will discuss the contact at your
next treatment session and your next
probation appointment.

¶4 The district court referenced these conditions at Cooley’s

providency hearing, informing Cooley that he would undergo a child

contact assessment (CCA) “to determine whether it’s appropriate for

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 you to be around your own children or any child under the age of

18.” The record before us, however, contains no evidence that a

CCA was ever performed.

¶5 For reasons irrelevant to this appeal, the district court revoked

and reinstated Cooley’s probation a year after he was first

sentenced. At resentencing, the court imposed the same Additional

Conditions, including Conditions 4 and 5. Five months after that,

the probation department filed another revocation complaint, this

time alleging that Cooley had violated Conditions 4 and 5 by talking

to his young daughter in his car after church.

¶6 After a hearing, the district court found that Cooley had

violated Conditions 4 and 5, revoked his probation, and set the case

for a sentencing hearing. At sentencing, citing Cooley’s repeated

failure to comply with his probation’s conditions, the court revoked

Cooley’s probation and sentenced him to an indeterminate term of

two years to life in the custody of DOC.

¶7 Cooley asserts that Conditions 4 and 5 are invalid — and thus

could not form the basis for his revocation — because they violate

his constitutional right to familial association, see United States v.

Burns, 775 F.3d 1221 (10th Cir. 2014), and are not reasonably

3
 related to his rehabilitation and the purposes of probation. § 18-

1.3-204(2)(a)(XV), C.R.S. 2019; see also People v. Brockelman, 933

P.2d 1315, 1318-21 (Colo. 1997). We only reach the constitutional

challenge to Condition 4 because we conclude first that the district

court’s findings did not establish a violation of Condition 5.1

Turning then to Condition 4, we hold that the existing record does

not establish the existence of compelling circumstances necessary

to impose the restrictions on familial association that the condition

includes. We therefore reverse the district court’s order revoking

Cooley’s probation.

II. Condition 5

¶8 We need not reach Cooley’s constitutional challenge to

Condition 5 because we conclude that the district court’s findings

do not establish that he violated it.

1 We note that while Condition 5, by its plain terms, does not
necessarily implicate Cooley’s right to familial association, it could
be applied in a way that infringes on that right. We do not consider
the constitutionality of Condition 5 as applied, however, because we
conclude that the district court’s findings did not establish that
Cooley violated that provision.

4
 A. Preservation and Standard of Review

¶9 Cooley concedes that defense counsel did not object to the

district court’s finding that he had violated Condition 5. Reviewing

for plain error, we will reverse only if the district court committed

an error that “(1) is obvious, (2) prejudices a substantial right, and

(3) casts serious doubt on the judgment’s reliability.” People v.

Roletto, 2015 COA 41, ¶ 29.

B. Analysis

¶ 10 The district court found that Cooley violated Condition 5 “by

not immediately reporting” the contact he had with his daughter.

Cooley argues that this was plain error because Condition 5 did not

require him to immediately report the interaction.

¶ 11 We agree. By its terms, Condition 5 did not require Cooley to

“immediately report[]” the contact with his daughter. Rather,

Condition 5 states in its entirety that “[i]f you have incidental

contact with children, you will be civil and courteous to the children

and immediately remove yourself from the situation. You will

discuss the contact at your next treatment session and your next

probation appointment.” The term “immediately” clarifies what the

probationer must do in the event of incidental contact — remove

5
 himself from the situation. “Immediately” does not modify the next

sentence, which instead directs the probationer to discuss the

contact with his treatment provider and probation officer at his next

appointment with each.

¶ 12 The error was plain. It was obvious because the district court

found that Cooley violated a requirement that the plain language of

Condition 5 did not impose. See People v. Pollard, 2013 COA 31M,

¶ 40 (holding that an error is obvious if it contravenes a clear

statutory command). It was also substantial and cast serious

doubt on the reliability of the judgment. As we discuss below, the

record does not support the imposition of Condition 4, and Cooley’s

violation of Condition 4 was the only other basis for the revocation

petition. We therefore cannot conclude that, had it correctly

applied the provisions of Condition 5, the district court would have

nonetheless found a violation and revoked Cooley’s probation.

¶ 13 To be clear, we do not suggest that there was insufficient

evidence to establish a violation of Condition 5. Rather, we hold

only that the factual findings that the district court made do not

support its conclusion that Cooley violated Condition 5’s

restrictions.

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 III. Condition 4

¶ 14 Next, Cooley argues that, because Condition 4 infringes on his

right to familial association, his violation of that condition could not

serve as the basis for revocation of his probation. We agree.

A. Preservation

¶ 15 Before reaching the merits of Cooley’s arguments, we consider

the People’s assertion that Cooley either affirmatively waived or

failed to preserve his constitutional challenge.

1. Affirmatively Waived

¶ 16 The People first assert that Cooley’s counsel waived his

constitutional challenge by telling the district court in argument

that the constitutionality of Condition 4 was “not necessarily” before

it. At the second sentencing hearing, defense counsel told the court

that

I think . . . absent the Court making specific
findings at Mr. Cooley’s last sentencing . . .
that he shouldn’t . . . for some specific reason
have contact with his daughter, as required
under [Burns,] . . . that violating his probation
based on contact with his own daughter is
unconstitutional as well. I know that is not
necessarily before the Court but we want to
make that record and the case needs to be
preserved for appellate purposes.

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¶ 17 It is not clear why, given the argument surrounding the

statement, defense counsel told the court that the constitutionality

of Cooley’s probation conditions was not before it. Indeed, a

revocation hearing arising from the violation of allegedly

unconstitutional conditions of probation would seem to be an ideal

time for such a challenge. See People v. Ickler, 877 P.2d 863, 866

(Colo. 1994) (“The issues for determination in a probation

revocation proceeding are whether the defendant has violated a

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

appropriate in light of the violation.”) (emphasis added).

¶ 18 Nonetheless, Cooley’s counsel did raise the constitutionality of

the conditions at the hearing, he cited relevant case law, and he

stated that he wished to preserve the issue for appeal, thereby

“present[ing] [the district court] with an adequate opportunity to

make findings of fact and conclusions of law” on the issue. People

v. Melendez, 102 P.3d 315, 322 (Colo. 2004). And we certainly

cannot say that counsel’s misunderstanding as to which issues

were properly before the district court amounted to an “intentional

relinquishment of a known right.” People v. Rediger, 2018 CO 32, ¶

8
 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.

1984)). Thus, Cooley did not waive the issue.

2. Cooley’s Constitutional Challenge Was Timely Raised

¶ 19 The People next argue that even if Cooley did not affirmatively

waive the issue, he did not raise it in a timely or sufficient manner,

and thus it was not preserved. This is so, the People claim, because

Cooley did not object to Condition 4 at the time it was imposed, and

because even if Cooley’s counsel mentioned the issue “in passing”

at hearings, Cooley never “issu[ed] a developed challenge[.]” We

disagree with both assertions.

¶ 20 Legal arguments can be preserved for appeal by raising them

at various times throughout the trial proceedings. See Berra v.

Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)

(holding that party preserved appellate argument by asserting it in

closing argument); People v. Silva, 987 P.2d 909, 913 (Colo. App.

1999) (presenting sum and substance of argument preserves the

argument for appellate review). The purpose of the

contemporaneous objection rule is to conserve judicial resources by

alerting the district court to a particular issue in order to give the

court an opportunity to correct any error that could otherwise

9
 jeopardize a defendant’s right to a fair trial. People v. Pahl, 169

P.3d 169, 183 (Colo. App. 2006).

¶ 21 At Cooley’s second revocation hearing (the one at issue here),

while cross-examining Cooley’s probation officer, defense counsel

asked how the Burns decision applied to Cooley’s case:

Q: And you’re familiar with the Burns case?

A: I am.

Q: And there was a memorandum that went
out in March of last year that talked about the
Court needing – (inaudible) – to make specific
findings that it was inappropriate for someone
to have contact with their children.

A: That’s true.

Q: Okay. And you were at Mr. Cooley’s last
sentencing hearing and those findings were
made?

A: There was no discussion regarding contact
with his children, is that what you are asking?

Q: Yes.

A: Okay. I’m sorry, yes

Later, at that same hearing, Cooley’s counsel again brought up the

Burns decision, this time in argument, as discussed earlier in Part

III.A.1. The district court did not rule on the constitutionality of the

conditions at that hearing.

10
¶ 22 Defense counsel presented more argument on this issue at the

sentencing hearing following Cooley’s second revocation. Counsel

cited to Burns again and argued that “placing the condition on Mr.

Cooley not to have contact with his child . . . violate[d] his

fundamental right or liberty interest . . . . [O]n that ground[] I don’t

think there should have even been a violation.” At that hearing, the

People also acknowledged the Burns decision — and its applicability

to the proceedings — on three separate occasions.

¶ 23 The People argue now that Cooley should have objected to

Condition 4 “when the court first imposed the condition” or “the first

time the court revoked . . . his probation and reinstated the no-

contact provision.” Objecting at either of those times, they assert,

would have “allowed for appellate review at a time appropriate to

determining whether the condition could continue to validly serve

as the basis for a restraint.” We agree that Cooley could have —

and perhaps should have — raised this challenge at the time the

conditions were first imposed, or at his first revocation/sentencing

hearing when the conditions were reimposed. However, his failure

to do so did not deprive the district court of the opportunity to

properly consider and rule upon the issue. To be sure, Cooley’s

11
 counsel raised the issue several times at both the revocation and

sentencing hearings underlying this appeal. Because the issue was

raised when the district court had an adequate opportunity to

decide the issue, Cooley preserved it for appellate review.

3. Cooley’s Constitutional Challenge was Adequately Developed

¶ 24 We also conclude that Cooley sufficiently developed his

constitutional challenge. An adequate objection allows the district

court a meaningful chance to prevent or correct the error and

creates a record for appellate review. Martinez v. People, 2015 CO

16, ¶ 14. Raising the “sum and substance” of an argument is

sufficient to preserve it. In re Estate of Ramstetter, 2016 COA 81,

¶ 68. An objection is sufficiently specific when it draws the court’s

attention to the asserted error. Martinez, ¶¶ 13-14.

¶ 25 Defense counsel and the prosecution both acknowledged the

holding of the Tenth Circuit in Burns. Further, defense counsel laid

out the argument clearly and made the argument more than once.

This development was sufficient to alert the district court to the

issue.

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 B. Standard of Review

¶ 26 We consider de novo whether a probation condition is

constitutional or statutorily authorized. People v. Devorss, 277 P.3d

829, 835 (Colo. App. 2011). We review a district court’s decision to

revoke probation, however, for an abuse of discretion. Ickler, 877

P.2d at 866. A district court abuses its discretion when its decision

is manifestly arbitrary, unreasonable, or unfair, or misapplies or

misconstrues the law. People v. Ehrnstein, 2018 CO 40, ¶ 13.

¶ 27 We review trial errors of constitutional dimension that were

preserved by objection for constitutional harmless error. Krutsinger

v. People, 219 P.3d 1054, 1058 (Colo. 2009). These errors require

reversal unless the reviewing court is “able to declare a belief that

[the error] was harmless beyond a reasonable doubt.” Hagos v.

People, 2012 CO 63, ¶ 11 (quoting Chapman v. California, 386 U.S.

18, 24 (1967)).

C. Specific Findings Were Necessary

¶ 28 The People argue that Condition 4 was valid because

conditions of probation may, in certain situations, infringe on

fundamental liberty interests. We agree with this general

proposition, but that is not the issue before us. Rather, the issue

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 we confront here is what process, if any, district courts must follow

before imposing conditions that infringe on an offender’s

fundamental constitutional rights.

¶ 29 Relying in large part on the Tenth Circuit’s opinion in Burns,

775 F.3d 1221, Cooley argues that Condition 4 unconstitutionally

infringes on his constitutional right to familial association by

prohibiting him from interacting with his own children. Although

he acknowledges that compelling circumstances can justify

restrictions on a probationer’s right to familial association, he

contends that nothing in the record supports the limitations created

by Condition 4 or establishes that those conditions are the least

restrictive available means to accomplish his probation’s legitimate

purpose.

¶ 30 In Burns, the defendant was convicted of possession of child

pornography and sentenced to sixty-three months in prison with

five years of supervised release. Id. at 1222. Similar to Condition 4

here, Burns’s supervised release (i.e., probation) barred him from

contact with any minors, including his daughter. Id. Arguing that

the condition violated his fundamental constitutional right to

familial association, Burns appealed the district court’s decision to

14
 impose it. Id. Reviewing for plain error, the Tenth Circuit reversed,

holding that “when a court imposes a special condition that invades

a fundamental right or liberty interest, the court must justify the

condition with compelling circumstances.” Id. at 1223. Because

the district court had not made any such findings, it improperly

imposed the condition restricting Burns’s familial contact during

probation.

¶ 31 While we are not bound by Burns, divisions of this court —

consistent with its holding — have previously recognized that a

condition of probation that infringes upon a constitutionally

protected right must be tailored to accomplish the probation’s

legitimate purpose. See People v. Forsythe, 43 P.3d 652, 654 (Colo.

App. 2001); see also People v. Bolt, 984 P.2d 1181, 1183-84 (Colo.

App. 1999). To evaluate the validity of similar restrictions, those

opinions have considered a set of factors laid out by our supreme

court in Brockelman, 933 P.2d 1315: (1) whether the restriction is

reasonably related to the underlying offense; (2) whether the

restriction is punitive to the point of being unrelated to

rehabilitation; (3) whether the restriction is unduly severe and

restrictive; (4) whether the defendant may petition the court to lift

15
 the restriction temporarily when necessary; and (5) whether less

restrictive means are available. See id. at 1319 (evaluating the

validity of probationer’s geographical restrictions); see also

Forsythe, 43 P.3d at 654 (applying the Brockelman factors when

evaluating the constitutionality of a probation condition that

restricted probationer’s unsupervised contact with her children).

¶ 32 Our difficulty in this case is that the record contains

insufficient information to apply these factors. A completed CCA

would be the ideal resource (although, depending on the remainder

of the record, not necessarily an essential one in every case), but

Cooley was never administered a CCA. It is on this shortcoming

that we find Burns persuasive.2

2 Colorado’s Sex Offender Management Board (SOMB) has reached
the same conclusion. After United States v. Burns, 775 F.3d 1221
(10th Cir. 2014), was published, the SOMB issued a memorandum
acknowledging that a general prohibition on contact between sex
offenders and their children was no longer best practice. The
memorandum recognized that the Burns decision created a
presumption in favor of sex offenders having contact with their
children that could only be overcome in compelling circumstances.
See Colo. Sex Offender Mgmt. Bd., Position Regarding A Sex
Offender’s Contact with His or Her Own Child (Mar. 18, 2016),
https://perma.cc/4ZFA-35CP.

16
¶ 33 Implicit in the approach adopted in Brockelman is that a court

striking a balance between the terms of probation and an offender’s

constitutional rights will have adequate information available to

support its exercise of discretion. See Forsythe, 43 P.3d at 654

(“The record shows that defendant had a longstanding history of

being unwilling or unable to provide safe and adequate care for her

young children.”); see also People v. Lientz, 2012 COA 118, ¶¶ 17-

18 (detailing record evidence in support of conclusion that the

conditions of probation were reasonably related to the defendant’s

rehabilitation or the purposes of probation).

¶ 34 Here, however, the record includes almost no such evidence.

In the absence of a CCA, we look to the remaining record for

findings that could justify Condition 4, but find virtually none. At

Cooley’s first sentencing hearing, the district court stated:

I’m going to sentence you to probation for ten
years to life on sexual offender intensive
supervised probation. You are to abide by all
conditions of the adult sex offender treatment
program, abide by the computer use program.
You are to register as a sex offender. You are
to enroll in offense specific treatment as
directed by your supervising probation officer,
cooperate with all conditions of treatment;
have no contact with anyone under the age of

17
 18 without prior approval of the supervising
probation officer and treatment team.

There was no discussion about, or any objection to, Condition 4.

The district court did not address what, if any, compelling

circumstances led to the decision to restrict Cooley’s ability to see

his daughter.

¶ 35 Subsequent proceedings offer little additional information. At

Cooley’s first revocation and resentencing hearing, the district court

simply stated that it was “revoking and regranting probation for the

same ten years to life with all the SOISP conditions that previously

were imposed.” And in the revocation and resentencing hearings

that gave rise to this appeal, the court likewise did not outline its

reasons for imposing Condition 4.

¶ 36 With so little to go on — and without any immediately

apparent connection between Cooley’s offense and the need to

restrict his familial contact — we lack a sufficient record to apply

the Brockelman factors. Thus, like many other courts, we hold that,

at least in situations where the need for such restrictions is not

18
self-evident,3 conditions of probation that infringe on a defendant’s

fundamental constitutional rights must be supported by a specific

finding that (1) compelling circumstances require their imposition

and (2) less restrictive means are not available. See, e.g., United

States v. Doyle, 711 F.3d 729, 732-33 (6th Cir. 2013) (holding that

a trial court errs procedurally “if it fails, at the time of sentencing,

to state in open court its rationale for mandating a special condition

of supervised release”); United States v. Hobbs, 710 F.3d 850, 854

(8th Cir. 2013) (holding that while conditions requiring defendants

to receive permission from a probation officer before contacting

their own children are permissible, “an ‘individualized inquiry,’ and

a ‘particularized showing’ of need for the condition, is required in

each case” (quoting United States v. Springston, 650 F.3d 1153,

1156 (8th Cir. 2011))); United States v. Wolf Child, 699 F.3d 1082,

1089-94 (9th Cir. 2012) (requiring the district court to make

“enhanced” findings before imposing a special condition that

implicates the defendant’s constitutional rights); Simants v. State,

3The need for restrictions in some situations is obvious — for
example, it is difficult to imagine that continued familial contact
would be appropriate for a defendant who sexually assaulted a child
or stepchild living in his or her household.

19
 329 P.3d 1033, 1039 (Alaska Ct. App. 2014) (holding that “the

constitutional importance of a person’s right to maintain familial

relationships” required trial court to affirmatively demonstrate that

the defendant was a danger to her children before restricting

familial contact as a condition of probation); Ex parte Fineberg, Nos.

PD-1024-17 & PD-1025-17, 2018 WL 4762386, at *6 (Tex. Crim.

App. Oct. 3, 2018) (unpublished opinion) (finding that before

imposing terms of probation depriving a defendant of her

fundamental right to care, custody, and management of her own

child, the trial court “should have first afforded Appellant proper

procedural due process in the form of a hearing”). But see United

States v. Schewe, 603 F. App’x 805, 812 (11th Cir. 2015) (rejecting

need for heightened procedures or strict scrutiny when a special

condition burdens a constitutional right).

D. Remedy

¶ 37 Cooley contends that the lack of evidentiary support requires

us to reverse his revocation and remand the case with instructions

to the district court to amend or eliminate Condition 4. The People

respond that, if we do not affirm Cooley’s revocation, we should

20
 remand the case so that the district court may assess whether

Condition 4 is appropriate in light of this opinion.

¶ 38 We have concluded that the district court’s findings did not

establish a violation of Condition 5, and that the existing record

does not establish that Condition 4 was constitutionally imposed.

For that reason, we must reverse the revocation of Cooley’s

probation.

¶ 39 We decline, however, to instruct the district court to amend or

eliminate Condition 4. Certainly, as the record stands, that

condition may not be imposed. But on remand, the district court

may reconsider whether Condition 4 is warranted. Once there is

sufficient information, the court may, as outlined in Brockelman,

consider whether any restrictions are adequately tailored to

accomplish the probation’s legitimate purpose. If the restriction

passes statutory and constitutional muster, the court may reimpose

Condition 4. If they do not, then the district court should amend or

eliminate the offending conditions.

IV. Conclusion

¶ 40 Because the record lacks adequate justification for the

imposition of Condition 4, and because the district court’s findings

21
 did not demonstrate that Cooley had violated Condition 5, we

reverse the district court’s order revoking Cooley’s probation and

resentencing him to the DOC.

¶ 41 We remand the case to the district court so that it may take

the steps necessary to determine whether Condition 4 should be

part of Cooley’s SOISP in the future, and if so, to make the requisite

findings in support of that conclusion. If the district court

determines that circumstances do not justify the imposition of

Condition 4, then the terms of Cooley’s probation should be

amended accordingly.

JUDGE FURMAN and JUDGE BERGER concur.

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