Executive Director of the Colorado Department of Corrections v. Fetzer

Citations: 2017 CO 77; 396 P.3d 1108; 2017 WL 2729857; 2017 Colo. LEXIS 556Docket: 16SC361

Court: Supreme Court of Colorado; June 26, 2017; Colorado; State Supreme Court

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Opinions from the Colorado Supreme Court are publicly accessible through the Judicial Branch and the Colorado Bar Association websites. In the case of Executive Director of the Colorado Department of Corrections v. Fetzer (2017 CO 77, No. 16SC361), the Department of Corrections sought a review after the court of appeals reversed a district court decision that denied Fetzer's petition under C.R.C.P. 106(a)(2). Fetzer argued that the Department’s method for calculating parole eligibility, which used the longest concurrent sentence, violated the statute requiring that multiple sentences be treated as one continuous sentence. The court of appeals found that the continuous sentence requirement applies to both concurrent and consecutive sentences and that the Department's method was inappropriate for Fetzer's case. The Supreme Court affirmed the court of appeals' judgment but reversed its remand order for recalculation. The Supreme Court clarified that while the governing sentence theory should not replace the continuous sentence requirement, a governing sentence may still be necessary for determining parole eligibility due to the differing statutory parole provisions applicable to Fetzer's multiple sentences. The case is remanded to the district court for further proceedings.

The court of appeals reversed and remanded for recalculation, determining that the statutory continuous sentence requirement applies to both concurrent and consecutive sentences, contrary to the department's interpretation. The department erred by applying its “governing sentence” calculation method to Fetzer’s sentences, as all were subject to the same statutory parole provisions, which necessitated consideration of a continuous sentence rather than substituting the longest sentence. However, since not all of Fetzer’s sentences were subject to the same parole provisions, using a governing sentence or similar method may still be required to determine his parole eligibility date. The court affirmed the reversal of the district court's order but reversed the remand order to recalculate Fetzer’s parole eligibility and instructed that the case be returned to the district court for further proceedings.

Fetzer, who has multiple convictions dating back to 1988, filed a petition to compel the Colorado Department of Corrections to recalculate his parole eligibility. His convictions include aggravated robbery and first-degree burglary, resulting in several concurrent and consecutive sentences. Fetzer claimed that the department's designation of one of his longer sentences as the governing sentence violated the requirement to treat all sentences as a single continuous sentence, affecting his eligibility for parole. The department had argued that the continuous sentence requirement only applies to consecutive sentences and that the incidents of parole for concurrent sentences should follow the governing sentence method.

Fetzer's parole eligibility was calculated based on his longest concurrent sentence, determining he would not be eligible for parole until June 2019 and would not reach his mandatory release date until August 2026. The district court dismissed his petition, but the court of appeals reversed this decision, asserting that the statute requires all separate sentences to be treated as a single continuous sentence, applicable to both concurrent and consecutive sentences. The appellate court noted that the "governing sentence" method only applies when sentences have conflicting parole provisions, which was not the case for Fetzer. Consequently, the appeal court remanded for recalculation of his parole eligibility. The legal framework in this jurisdiction mandates treating multiple sentences as continuous, a principle established since the 19th century, but has faced challenges due to evolving sentencing laws. Prior to 1979, sentences were indeterminate with significant discretion for parole boards. The introduction of a determinate sentencing system in 1979 restricted parole board discretion, and subsequent legislative changes in 1985 reintroduced some discretion within specific parameters.

In 1993, the legislature revised the sentencing system, granting the parole board discretion to release eligible offenders to parole at any time prior to their mandatory release, while establishing statutory parole periods that must be served irrespective of the completion of the incarceration term. This revision created a distinct separation between parole and the judicially imposed sentence. Over the years, various changes have been made to the statutes governing parole eligibility and discharge dates. Prior to July 1979, inmates could receive credits allowing parole eligibility before serving the minimum sentence. From July 1979 to 1990, good time and earned time credits allowed earlier parole eligibility without serving the full sentence. The "determinate sentencing system" in place until mid-1985 mandated release to a fixed parole period upon eligibility. However, the "modified determinate sentencing system" introduced in mid-1985 transferred the decision of release to the parole board, enabling earlier releases without a predetermined parole duration. In 1990, a new parole eligibility scheme was established, eliminating good time credits and instead making most felony offenders eligible for parole after serving 50% or 75% of their sentence, adjusted for earned time. This new framework applied primarily to offenses committed after July 1, 1979, but did not fully replace the pre-1990 system, leading to situations where inmates serve sentences under different, often conflicting, legislative frameworks concerning parole and incarceration.

In 1986, the court endorsed the department's practice of using the offense leading to the longest incarceration to compute time-reducing credits for convicted felons, as established in *Price v. Mills*. In *Price*, inmates with both indeterminate and determinate sentences had their credits applied to a composite governing sentence that combined aspects of both sentencing systems, aligning the minimum governing sentence with the determinate sentence and the maximum with the indeterminate sentence. The court determined this hybrid approach was necessary for compliance with the continuous sentence requirement and concluded that the department's interpretation of the statutes was reasonable and aligned with legislative intent, thus deserving of deference.

Two years later, in *People v. Broga*, the court reaffirmed its support for the department's interpretation, allowing the longest incarceration sentence to dictate credit calculations even for consecutive sentences, provided this interpretation remained reasonable and upheld legislative and constitutional rights. Over the next decade, the court referred to this approach as a governing sentence concept, especially regarding inmates with both mandatory and discretionary release sentences. In cases where sentences ran concurrently, the governing sentence analysis was deemed necessary; however, for consecutive sentences, it was not applicable. In the latter scenario, the court reasoned that the discretionary nature of parole on the subsequent sentence would negate the mandatory release from the prior sentence, leading to the conclusion that the inmate’s parole eligibility dates would be governed by the same credit provisions, ultimately questioning if those dates would be identical.

The governing sentence methodology does not imply a singular approach applicable to all concurrent or consecutive sentences. It does not endorse calculating an inmate's parole eligibility based solely on the longest concurrent sentence, but rather emphasizes a composite continuous sentence that encompasses all separate sentences. The composite governing sentence should apply as an implementation of the required continuous sentence, not as a replacement. In cases where the longest sentence has been used to determine credit or sentencing, it coincides with the effective dates of the inmate's other sentences.

The department's interpretation of statutory mandates regarding the continuous sentence requirement does not align with the governing sentence method it applies to Fetzer's parole eligibility, which it incorrectly views as an exception sanctioned by prior court decisions. The court of appeals found the department's calculations erroneous and indicated that all of Fetzer's sentences should adhere to the same parole provisions, rendering the governing sentence method inapplicable.

While part 4 of article 22.5 supersedes previous credit provisions, it includes exclusions for offenders incarcerated as of June 7, 1990, which complicates its application. Furthermore, part 4 allows differential treatment of offenders based on crime timing, influencing aspects such as parole eligibility, duration, and discharge entitlement, with specific requirements varying based on the nature of the crime and the offender's history.

Section 17-22.5-403(8) outlines specific parole rules for sex offenders, referencing the case Thiret, which determined that offenses committed on the same date could still be governed by multiple sets of parole regulations. The department is tasked with administering an inmate’s continuous sentence equitably, regardless of any conflicting statutory amendments. In Fetzer's case, the department incorrectly calculated his parole eligibility by only considering his longest sentence, failing to address the various parole incidents applicable to his composite continuous sentence that includes all separate sentences. The court emphasizes that the department's administrative interpretations hold significant weight, and its discretion in applying sentencing theories is acknowledged, provided it does not violate statutes or constitutional rights. The court previously sanctioned the use of "governing sentence" theories to establish applicable parole provisions, highlighting that the department erred by merely using Fetzer's longest sentence instead of the required continuous sentence. As Fetzer's multiple sentences fall under different parole schemes, determining the governing sentence or an equivalent method for calculating his parole eligibility remains necessary. The court affirms the court of appeals' judgment reversing the district court's order but reverses its remand for recalculating Fetzer's parole eligibility, directing the case back to the district court for further proceedings.