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.

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.
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

¶ 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 Because we conclude that Cooley’s probation was revoked 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 
2

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 
3

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 
4

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. 
5

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 
6

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. 
7

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.
8

¶ 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, ¶ 
9

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 
10

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. 
11

¶ 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 nocontact 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 
12

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. 
13

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 
14

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 
15

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 
16

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.
17

¶ 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 
18

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 
19

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, 

 3 The 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. 
20

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 
21

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 
22

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.