21SC52- Owens v. Carlson ( 2022 )

 The supreme court concludes that, under the specific circumstances present,
the DOC is required to determine the parole eligibility date for the defendant’s one
continuous sentence by employing a hybrid system that effectuates both of the
calculation rules. Consequently, the DOC must apply the 50% rule to the sentence
subject to that rule and the 75% rule to the two sentences subject to that rule. After
doing so, the DOC must combine the resulting calculations to determine the parole
eligibility date for the defendant’s single continuous sentence. This system at once
honors the two different calculation rules and the one-continuous-sentence
requirement.
Because the court of appeals erroneously approved the non-hybrid
methodology used by the DOC to calculate the defendant’s parole eligibility date,
the judgment is reversed. However, because the DOC has since recalculated the
defendant’s parole eligibility date, and because the new calculation is consistent
with this opinion, no further action is required. Accordingly, the matter is
remanded with instructions to simply return the case to the district court.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2022 CO 33Supreme Court Case No. 21SC52
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 19CA890
Petitioner:
Nathanael E. Owens,
v.
Respondents:
Mary Carlson, Scott Dauffenbach, and Dean Williams.
Judgment Reversed
en banc
June 21, 2022
Attorneys for Petitioner:
Squire Patton Boggs (US) LLP
Brent R. Owen
Samuel B. Ballingrud
Denver, Colorado
Attorneys for Respondents:
Philip J. Weiser, Attorney General
Nicole Gellar, First Assistant Attorney General
Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF
JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE
GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 There is an old saying that lawyers can’t do math. While this is a tired
stereotype, there is no question that some lawyers and math just don’t mix. See
Jackson v. Pollion, 733 F.3d 786, 788 (7th Cir. 2013) (Posner, J.) (“Innumerable are
the lawyers who explain that they picked law over a technical field because they
have a ‘math block’ . . . .”). For that reason, much like the “some assembly
required” warning on certain products, we start off by cautioning that there is
“some math required” in this opinion. Fear not, however, for it is simple math
and instructions are included.
¶2 This case calls on us to review the method of calculation employed by the
Colorado Department of Corrections (“DOC”) to determine the parole eligibility
date for Nathanael E. Owens, who is serving three consecutive prison sentences.
There is no dispute that Colorado law requires that Owens’s sentences be treated
as a single continuous sentence for purposes of calculating his parole eligibility
date. What complicates matters is that one of Owens’s sentences is subject to a
statutory provision that renders him parole eligible after serving 50% of the
sentence, while the other two sentences are subject to a statutory provision that
renders him parole eligible after serving 75% of those sentences. So, is Owens
eligible for parole after serving 50%, 75%, or some other percentage of his one
continuous sentence?
2
¶3 The DOC applied the 75% rule to all three of Owens’s consecutive sentences,
reasoning that two of them were subject to that rule. But, in so doing, it applied
the 75% rule to the sentence that was subject to the 50% rule. A division of the
court of appeals nevertheless approved this methodology. It held that the DOC
had discretion to apply just one calculation rule (the 75% rule) to the entirety of
Owens’s single continuous sentence.
¶4 We recognize that the DOC is vested with broad discretion in deciding how
to calculate the parole eligibility date for an inmate’s one continuous sentence. But
we’ve made clear that such discretion isn’t unfettered and does not permit the
DOC to violate a legislative enactment. Because the methodology selected by the
DOC and approved by the division here contravened two statutory provisions (the
50% rule it failed to apply and the 75% rule it applied without authority), we
cannot uphold it.
¶5 Instead, we agree with Owens that, under the specific circumstances
present, the DOC is required to determine the parole eligibility date for his one
continuous sentence by employing a hybrid system that effectuates both of the
calculation rules. Consequently, the DOC must apply the 50% rule to the sentence
subject to that rule and the 75% rule to the two sentences subject to that rule. After
doing so, the DOC must combine the resulting calculations to determine the parole
eligibility date for Owens’s single continuous sentence. This system at once
3
honors the two different calculation rules and the one-continuous-sentence
requirement.
¶6 Where we part ways with Owens is his alternative contention that none of
his sentences fall within the scope of the 75% calculation rule. Contrary to Owens’s
assertion, his two sentences for aggravated robbery are governed by the 75% rule.
¶7 Because the division erroneously approved the non-hybrid methodology
used by the DOC to calculate Owens’s parole eligibility date, we reverse.
However, because the DOC has since recalculated Owens’s parole eligibility date,
and because the new calculation is consistent with this opinion, no further action
is required. Accordingly, we remand with instructions to simply return the case
to the district court.
I. Facts and Procedural History
¶8 Owens is serving three consecutive prison sentences in the DOC totaling 24
years: a 4-year sentence for vehicular eluding (a class 5 felony) and two 10-year
sentences for aggravated robbery (class 3 felonies). The DOC initially determined
Owens’s parole eligibility date by using a hybrid method: calculating 75% of each
of his sentences for aggravated robbery (75% of 10 years or .75 x 10 = 7.5 years);
calculating 50% of his sentence for vehicular eluding (50% of 4 years or .50 x 4 = 2
years); and combining the resulting calculations (7.5 years + 7.5 years + 2 years =
4
17 years). That led the DOC to conclude that Owens would be eligible for parole
after serving 17 years of his one continuous sentence.
¶9 Pursuant to C.R.C.P. 106(a)(2), Owens sued several employees of the DOC
seeking a writ of mandamus on the ground that the DOC had improperly
calculated his parole eligibility date. Specifically, Owens challenged the DOC’s
application of the 75% rule to his aggravated robbery sentences.
¶10 The DOC filed a motion to dismiss. First, it took issue with Owens’s
allegation that the 75% rule didn’t apply to his aggravated robbery sentences.
Second, it announced that it had recalculated Owens’s parole eligibility date by
treating his three sentences as one continuous sentence and applying the 75% rule
to the composite 24-year sentence, resulting in a parole eligibility date about a year
later than the originally calculated date (75% of 24 years or .75 x 24 = 18 years).
The DOC justified its change of heart by pointing to our recent decision in
Executive Director of the Colorado Department of Corrections v. Fetzer, 2017 CO 77, ¶ 2,
396 P.3d 1108, 1109, where we held that the one-continuous-sentence mandate in
section 17-22.5-101, C.R.S. (2021), applies to the calculation of parole eligibility
5
dates.1 Because the DOC believed that its new calculation rendered Owens’s claim
moot, and because, regardless, it viewed Owens’s motion as falling short of
showing a clear right to the extraordinary relief requested, it maintained that
Owens could not shoulder his heavy burden under C.R.C.P. 106(a)(2).
¶11 In response, Owens asserted that the 75% rule didn’t apply to his aggravated
robbery sentences because, in his view, that rule applied only to sentences
imposed on inmates who had a previous conviction for a crime of violence, and he
had no such previous conviction. Thus, urged Owens, the 50% rule applied to all
three of his sentences.
¶12 The district court granted the DOC’s motion and dismissed the case. After
identifying the arduous burden set forth in C.R.C.P. 106(a)(2), it determined that
Owens had failed to establish that he had “a clear right” to have his parole
eligibility date calculated by applying the 50% rule to all his sentences.
¶13 Owens appealed, and a division of the court of appeals affirmed. Owens v.
Williams, 2020 COA 177, ¶ 3, 490 P.3d 1050, 1051. Like the district court, the
division concluded that Owens hadn’t met his heavy burden of demonstrating that
1Section 17-22.5-101 provides that “when any inmate has been committed under
several convictions with separate sentences, the [DOC] shall construe all sentences
as one continuous sentence.”
6
he had a clear right to have the 50% rule applied to all his sentences. Id. at ¶ 28,
490 P.3d at 1054. Consequently, held the division, the DOC could apply the 75%
rule to determine the parole eligibility for Owens’s one continuous sentence,
“notwithstanding the fact that Owens is also serving a sentence for an offense that
doesn’t fall” within the ambit of the 75% calculation rule. Id. at ¶ 3, 490 P.3d at
1051. According to the division, “[p]er Fetzer, under these circumstances, the DOC
had discretion to apply the seventy-five percent rule to the one composite,
continuous twenty-four-year sentence.” Id. at ¶ 22, 490 P.3d at 1053.
¶14 Judge Berger authored a special concurrence. He joined the majority
because he felt that its reading of Fetzer was “not unreasonable.” Id. at ¶ 30,
490 P.3d at 1054 (Berger, J., specially concurring). But he wrote separately to
explain why a wide grant of discretion to the DOC in this case was neither
necessary nor consistent with the statutory scheme. Id. at ¶ 31, 490 P.3d at 1054.
Although acknowledging that the DOC has discretion in administering this state’s
prisons, he opined that “when the General Assembly has definitively spoken on a
subject and has displaced discretion, courts have a duty to enforce the law as
written, not to grant either unlimited or even circumscribed discretion to executive
branch officials to rewrite statutes.” Id. at ¶ 31, 490 P.3d at 1055. Judge Berger
then observed that it was feasible “to apply the legislative rules to each of the
sentences that comprise the one continuous sentence and remain faithful to the
7
one continuous sentence rule.” Id. at ¶ 35, 490 P.3d at 1055. This hybrid method
of calculation, he said, would honor the legislature’s exclusive authority to set the
rules for parole eligibility without preventing the DOC from also complying with
the one-continuous-sentence statutory requirement. Id.
¶15 Apparently believing that Fetzer did not allow the division to require the
DOC to use the hybrid system of calculation, Judge Berger suggested that our
court may wish to “take a second look at this.” Id. at ¶ 39, 490 P.3d at 1056. After
all, added Judge Berger, “the supreme court is not itself bound by Fetzer.” Id. In
the alternative, Judge Berger thought that the General Assembly could clarify what
it meant when it passed the statutory provisions at play here. Id.
¶16 Judge Berger’s special concurrence convinced the DOC that the hybrid
method is a reasonable means of calculating an inmate’s parole eligibility date in
a manner that doesn’t run afoul of the one-continuous-sentence mandate. Hence,
prompted by Judge Berger’s concurrence, the DOC recalculated Owens’s parole
eligibility date using the hybrid method (the original calculation method it had
employed).
¶17 Owens nevertheless filed a petition for certiorari in our court. And we
agreed to review the following issue:
Whether, to calculate the parole eligibility date for an inmate serving
consecutive sentences, the Department of Corrections must give effect
to each parole eligibility statute that governs an inmate’s sentences or
whether the Department of Corrections may choose, in its discretion,
8
to apply one parole eligibility statute to the entirety of an inmate’s one
continuous sentence.
¶18 Before our court, Owens maintains that the 50% rule applies to all three of
his sentences. In the alternative, he asks us to hold that the DOC is required to
employ the hybrid method of calculation to determine his parole eligibility date.
The Attorney General counters that the DOC’s most recent calculation renders
Owens’s appeal moot, but even if it doesn’t, the division got this one right.
II. Analysis
¶19 We begin with a brief refresher on the principles implicated in suits for
mandamus relief. We then address the Attorney General’s contention that the
issue before us is moot because the DOC is already giving inmates, including
Owens, the benefit of the hybrid method, which was its long-standing means of
calculating parole eligibility before Fetzer. After explaining why the Attorney
General is mistaken, we turn to the calculation of Owens’s parole eligibility date.
Though we disagree with Owens that he’s entitled to have the 50% rule applied to
his sentences for aggravated robbery, we agree with him that, given the specific
circumstances present, the DOC is required to use the hybrid method of
calculation to determine the parole eligibility date for his one continuous sentence.
9
A. Suits for Mandamus Relief
¶20 C.R.C.P. 106(a)(2) permits a person to petition the district court for an order
to compel a . . . governmental body . . . to perform an act which the
law specially enjoins as a duty resulting from an office, trust, or
station, or to compel the admission of a party to the use and
enjoyment of a right or office to which he is entitled, and from which
he is unlawfully precluded by such . . . governmental body.
¶21 Mandamus is an extraordinary remedy that requires public officials to
perform plain legal duties they owe by virtue of their offices. Bd. of Cnty.
Comm’rs v. Cnty. Rd. Users Ass’n, 11 P.3d 432, 437 (Colo. 2000). While mandamus
is available to compel the performance of “a purely ministerial duty involving no
discretionary right” and requiring no “exercise of judgment,” it is not available to
compel the performance of a task that “is discretionary or involves the exercise of
judgment.” Id. An individual seeking mandamus relief bears a demanding
burden requiring satisfaction of a three-part test: (1) the individual must have “a
clear right” to the relief sought; (2) the party sued must have “a clear duty” to
perform the act requested; and (3) there can be no other remedy available. Id.¶22 We inspect Owens’s request with these tenets in mind. Before we get to the
crux of the matter, however, we take a brief hiatus to dispose of the Attorney
General’s mootness claim.
10
B. The Issue We Confront Is Not Moot
¶23 The Attorney General argues that Owens’s challenge to the application of
the 75% rule to his one continuous sentence is moot because the DOC has already
recalculated his parole eligibility date in accordance with the hybrid system. We
are unpersuaded for two reasons.
¶24 First, the dispute between the parties is more nuanced than the Attorney
General implies. Owens’s position isn’t that the DOC, in its discretion, should use
the hybrid method to calculate parole eligibility. It’s that the DOC has no
discretion in this case because, under the specific circumstances present, it is
required by law to use the hybrid method of calculation. Were we to dismiss
Owens’s appeal as moot, the DOC would be free to change its mind yet again and
recalculate Owens’s parole eligibility date without using the hybrid system. See
Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (“The voluntary
cessation of challenged conduct does not ordinarily render a case moot because a
dismissal for mootness would permit a resumption of the challenged conduct as
soon as the case is dismissed.”).
¶25 Second, the parties disagree about whether the 75% rule applies to the
sentences for the class 3 felony aggravated robbery convictions. The DOC says it
does; Owens says it doesn’t. There’s nothing moot about this issue. And, as we
discuss next, resolving it requires us to interpret several statutory provisions.
11
C. Statutory Provisions Governing Parole Eligibility on
Class 3 Felony Aggravated Robbery Sentences
¶26 Owens claims that his aggravated robbery sentences are subject to the 50%
rule. And since it is uncontested that he is eligible to be paroled on his vehicular
eluding sentence after he serves 50% of it, he asserts that we don’t even need to
reach the question related to the hybrid method of calculation. As the division
ruled, however, Owens misreads section 17-22.5-403, C.R.S. (2021).
¶27 Relevant here, subsection (1) of the statute provides that a person sentenced
for a felony that’s not a class 1 felony is eligible for parole “after such person has
served fifty percent of the sentence imposed.”2 However, under
subsection (2.5)(a), “[n]otwithstanding subsection (1) of this section,” a person
sentenced for certain crimes, including aggravated robbery, committed no earlier
than July 1, 2004, “shall be eligible for parole after such person has served seventy-
five percent of the sentence imposed.” Subsection (2.5)(b) then states that
paragraph (a) applies only to:
(I) A person convicted and sentenced for a crime listed in
paragraph (a) of this subsection (2.5) that is a class 2 or class 3 felony
offense; or
2 Throughout this opinion, we omit mention of earned time credit (or any other
credit) that may be authorized. Consequently, our parole eligibility calculations
do not account for authorized credit.
12
(II) A person convicted and sentenced for a crime listed in
paragraph (a) of this subsection (2.5) that is a class 4 or class 5 felony
offense, which person has previously been convicted of a crime of
violence as defined in section 18-1.3-406, C.R.S.
¶28 Read in its entirety, then, subsection (2.5) plainly requires applying the 75%
rule, instead of the 50% rule, to a sentence imposed for a class 2 or 3 felony
aggravated robbery or to a sentence imposed for a class 4 or 5 felony when the
inmate has previously been convicted of a crime of violence. Owens concedes that
he is serving sentences for two class 3 felony aggravated robberies. Therefore,
those sentences clearly come within the scope of subsection (2.5)(b)(I) and are
subject to the 75% rule.
¶29 Owens contends, however, that since the offenses listed in paragraph (a) are
all class 2 or 3 felonies, subparagraphs (I) and (II) in paragraph (b) must be read
conjunctively, notwithstanding the disjunctive “or” between them. Otherwise,
says Owens, subparagraph (I), which makes the 75% rule applicable to the crimes
identified in paragraph (a) that are class 2 or 3 felonies, adds nothing and is robbed
of all independent force.
¶30 But Owens cites no authority in support of his position, and we are aware
of none. More importantly, reading “or” as “and” in paragraph (b), as he urges,
would significantly alter the meaning of the statute. So amended, the statute
would require applying the 75% rule to a sentence imposed for one of the crimes
listed in paragraph (a) that is a class 2, 3, 4, or 5 felony when the inmate has been
13
previously convicted of a crime of violence. Even assuming inartful drafting by
the legislature, we have no authority to rewrite a statute. DePierre v. United States,
564 U.S. 70, 82 (2011) (“That we may rue inartful legislative drafting, however,
does not excuse us from the responsibility of construing a statute as faithfully as
possible to its actual text.”). Thus, we are beholden to the clear language of
subsection (2.5) and must effectuate it as written. See In re Marriage of Mack,
2022 CO 17, ¶ 14, 507 P.3d 524, 528 (“When the statutory language is clear, we
must enforce it as written.”).
¶31 Because Owens’s convictions for aggravated robbery are class 3 felonies, we
conclude that the sentences he is serving on those convictions are subject to the
75% rule set forth in subsection (2.5). The fact that he doesn’t have a prior
conviction for a crime of violence is of no moment to this determination.
D. Under the Specific Circumstances Present, the DOC Is
Required to Use the Hybrid Method to Calculate Owens’s
Parole Eligibility Date
¶32 Having decided that Owens’s sentences for aggravated robbery are subject
to the 75% rule in subsection (2.5), and there being no dispute that Owens’s
sentence for vehicular eluding is subject to the 50% rule in subsection (1), the issue
becomes: Which of these two calculation rules applies to Owens’s parole
eligibility? Or do they both apply? We reiterate that the parties agree, and we
14
concur, that the DOC must treat Owens’s three sentences as “one continuous
sentence.” See § 17-22.5-101; Fetzer, ¶ 17, 396 P.3d at 1113.
¶33 After recognizing that the DOC had to comply with the one-continuous-
sentence statute, the division noted that one of Owens’s sentences was governed
by the 50% rule while the other two sentences were governed by the 75% rule.
Owens, ¶¶ 17, 22, 490 P.3d at 1053. But the division concluded that, “[p]er
Fetzer, . . . the DOC had discretion to apply the seventy-five percent rule to the one
composite, continuous twenty-four-year sentence.” Id. at ¶ 22, 490 P.3d at 1053.
In doing so, the division implied that, had the DOC chosen instead to exercise its
discretion by applying the 50% rule to Owens’s one composite, continuous
sentence, that determination, too, would have survived scrutiny. See id. But
because it couldn’t be said that the DOC had “a clear duty” to apply the 50% rule
to the one composite, continuous sentence, the division held that Owens could not
prevail on his C.R.C.P. 106(a)(2) claim. Id. at ¶¶ 22, 28, 490 P.3d at 1053–54. The
division erred.
¶34 In deferring to the DOC’s mode of calculation, the division felt handcuffed
by Fetzer. See id. at ¶ 27, 490 P.3d at 1054. Even Judge Berger was under the
impression that Fetzer posed an insuperable barrier for Owens. Id. at ¶ 34, 490 P.3d
at 1055 (Berger, J., specially concurring). We, however, read Fetzer differently.
15
¶35 There is no question that we recognized in Fetzer that the DOC has broad
discretion in calculating parole eligibility for inmates:
As we have indicated in the past, in light of the practicalities inherent
in administering the complex of sentencing and parole mandates
imposed by statute, the department’s administrative interpretations
are entitled to great weight. We have in the past held the
department’s decision to apply some form of governing sentence
theory, or some other theory or device altogether, in administering
the relevant class of composite continuous sentences to be a matter
within its expertise and discretion.
Fetzer, ¶ 20, 396 P.3d at 1113. As Judge Berger commented, the discretion vested
in the DOC “is necessary to run a large government department, particularly a
corrections department.”3 Owens, ¶ 31, 490 P.3d at 1054–55.
3 Owens asserts that the DOC deserves no deference at all because it doesn’t
engage in rulemaking or otherwise act like other agencies. While the DOC does
not function like other agencies, legion precedent establishes that it nevertheless
has broad discretion in the management of our state’s prisons and in the
placement, assignment, management, discipline, and classification of inmates
housed in those prisons. See, e.g., Diehl v. Weiser, 2019 CO 70, ¶ 7, 444 P.3d 313, 316
(recognizing that “we give considerable deference to the DOC’s interpretation of
the statutory scheme for inmate and parole time computations”); Reeves v. Colo.
Dep’t of Corr., 155 P.3d 648, 651 (Colo. App. 2007) (“The DOC has broad discretion
over the classification and rehabilitation of inmates and the management of
prisons.”). Such discretion is by legislative design. See Wisdom Works Counseling
Servs., P.C. v. Colo. Dep’t of Corr., 2015 COA 118, ¶ 36, 360 P.3d 262, 268 (observing
that to protect the DOC’s discretion, section 17-1-111, C.R.S. (2021), states that
“provisions of [the corrections title] relating to the placement, assignment,
management, discipline, and classification of inmates shall not be subject” to the
statutory provisions setting forth rulemaking procedures for agencies (alteration
in original)).
16
¶36 But in Fetzer, immediately after discussing the wide discretion the DOC
enjoys in the parole arena, we cautioned that a methodology selected by the DOC
would not be upheld if it “contravene[d] a statute or the constitutional rights of an
inmate.” Fetzer, ¶ 20, 396 P.3d at 1114. In support of this proposition, we cited
Price v. Mills, 728 P.2d 715, 719 (Colo. 1986), a case we had discussed at length
earlier in that opinion.
¶37 Price involved an action brought by inmates who questioned the methods
used by the DOC to calculate certain credits established by the legislature to
reduce the actual amount of time convicted felons served in prison. 728 P.2d at
716. The inmates there were affected both by indeterminate sentences with longer
incarceration terms under the pre-1979 sentencing scheme and by concurrent
determinate sentences under the post-1979 sentencing scheme. Id. at 716–18. To
comply with the one-continuous-sentence requirement, the DOC had applied a
single system of credits to a composite governing sentence, which it had created
by considering the sentences together to arrive at a minimum governing sentence
and a maximum governing sentence, with the former equaling the inmates’
determinate sentence and the latter equaling the inmates’ indeterminate sentence.
Id. at 718.
¶38 Importantly, we recognized in Fetzer that we upheld the DOC’s solution in
Price because the DOC’s “interpretation of its responsibility to administer” the
17
different statutes in question “was reasonable and contravened no legislative or
constitutional rights or policies.” Fetzer, ¶ 14, 396 P.3d at 1112. We said that,
“[u]nder such circumstances,” we were comfortable declaring that the DOC’s
“‘administrative interpretation of the statutes [was] entitled to great weight.’” Id.
(quoting Price, 728 P.2d at 719). Emphasizing this message one more time, we
went on to observe that two years after Price, we “reaffirmed our willingness to
defer to the [DOC’s] administrative interpretation . . . as long as that interpretation
was ‘reasonable and contravene[d] no legislative or constitutional rights or
policies.’” Id. (second alteration in original) (quoting People v. Broga, 750 P.2d 59,
63 (Colo. 1988)).
¶39 And in Fetzer itself, we disavowed the DOC’s “governing sentence” method,
which calculated Fetzer’s parole eligibility date solely on the basis of the longest
of his concurrent sentences, stressing that the DOC could not contravene the
one-continuous-sentence statutory requirement:
While the [DOC’s] interpretation of its responsibilities to administer
relevant statutory mandates is entitled to great weight, in this case the
[DOC] offers no interpretation of the continuous sentence
requirement consistent with the governing sentence method it uses to
calculate Fetzer’s parole eligibility. Quite the contrary, the [DOC]
makes clear that it considers its governing sentence method . . . to be
an exception to the statutory requirement, mandated by the prior
decisions of this court. As we have explained, the [DOC] errs in
construing the precedents of this court as having sanctioned its
current governing sentence method at all, much less as having
directed that it be applied in lieu of the continuous sentence
requirement of section 17-22.5-101.
18
Fetzer, ¶ 17, 396 P.3d at 1113. Because the DOC had failed to adhere to a legislative
enactment, we ultimately affirmed the judgment of the court of appeals reversing
the district court’s dismissal of Fetzer’s C.R.C.P. 106(a)(2) claim. Id. at ¶ 21,
396 P.3d at 1114.
¶40 Accordingly, as pertinent here, we broke no new ground in Fetzer.
Concordant with our longstanding jurisprudence, we merely reasoned that,
notwithstanding the deference we generally afford the DOC’s interpretation of its
statutory responsibilities, the DOC could not violate a legislative enactment. Id. at
¶ 20, 396 P.3d at 1113–14. Because the parole eligibility calculation method
selected by the DOC contravened the one-continuous-sentence statute, we
declined to uphold it. Id.
¶41 Here, the method of calculation approved by the division contravened both
subsections (1) and (2.5). Subsection (1) requires applying the 50% rule to Owens’s
sentence for vehicular eluding. And subsection (2.5) prohibits applying the 75%
rule to that sentence. Hence, by applying the 75% rule to Owens’s vehicular
eluding sentence, the division violated both statutory provisions. It follows that,
notwithstanding the DOC’s wide discretion, the division mistakenly approved the
calculation of Owens’s parole eligibility date based solely on the 75% rule.
¶42 We note that the parties spar over our recent statement in Diehl v. Weiser,
2019 CO 70, ¶ 24, 444 P.3d 313, 319, that when there is not “absolute statutory
19
clarity, we will defer to the DOC’s interpretation unless it is unreasonable.” In our
view, this is much ado about nothing in the case before us. First, even assuming
the statutory provisions we confront lack absolute clarity, we have already
determined that the method of calculation accepted by the division violated
subsections (1) and (2.5). Thus, that calculation method cannot be deemed
reasonable. Second, Owens failed to preserve this issue, as he raises it for the first
time now. And third, the Attorney General does little more than summarily assert
that the statutory provisions in question lack absolute clarity, and we are unwilling
to assume that such is the case simply because it is not easy to effectuate them
simultaneously.4
¶43 That there is some difficulty in applying subsection (1) to the eluding
sentence and subsection (2.5) to the aggravated robbery sentences, while at the
same time adhering to the one-continuous-sentence statutory requirement,
doesn’t mean that the statutory provisions under inspection are ambiguous. They
4Owens asks us to consider backing away from the quoted statement in Diehl and
to provide further guidance on the level of deference owed to the DOC’s
interpretation of a statutory provision, including one that’s ambiguous. But that’s
a bridge we don’t have to cross today. In this case, it suffices to hold that, no matter
what level of deference the DOC deserves, its method of calculating parole
eligibility cannot contravene a statutory provision.
20
aren’t. Actually, each one is clear as day. And we agree with Judge Berger that
the hybrid method allows us to enforce all of them.
¶44 Therefore, we now hold that, under the circumstances of this case, the DOC
is required to calculate the parole eligibility date for Owens’s one continuous
sentence by employing a hybrid system that effectuates both of the calculation
rules.5 Consequently, the DOC must apply the 50% rule to the vehicular eluding
sentence and the 75% rule to the two aggravated robbery sentences. After doing
so, the DOC must combine the resulting calculations to determine the parole
eligibility date for Owens’s single continuous sentence. This system at once
honors the two different calculation rules and the one-continuous-sentence
requirement.
¶45 Doing the math under the hybrid method of calculation: 75% of the two
consecutive sentences for aggravated robbery comes out to 15 years (75% of 10
years = 7.5 years, and 7.5 years + 7.5 years = 15 years); 50% of the sentence for
vehicular eluding comes out to 2 years (50% of 4 years = 2 years); and combining
5 We underscore that our holding requiring the hybrid method of calculation is
limited to the circumstances before us: consecutive sentences, at least one of which
is subject to one calculation rule and at least one of which is subject to a different
calculation rule. The DOC, in its discretion, may be able to use a different method
of calculation in other circumstances, so long as that method doesn’t violate any
legislative or constitutional rights or policies.
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those calculations comes out to 17 years (15 years + 2 years = 17 years). So, Owens
should be eligible for parole after serving 17 years of his one continuous sentence.
¶46 Our 17-year parole eligibility calculation matches the DOC’s most recent
calculation. It’s also the calculation for which Owens alternatively advocates.
Therefore, no other action is required.
III. Conclusion
¶47 Because the division erred in approving a method of calculating parole
eligibility that contravened two statutory provisions, we reverse. While the DOC
is vested with broad discretion in determining parole eligibility, that discretion
isn’t unbounded; the DOC may not contravene a legislative enactment. Under the
specific circumstances of this case, the DOC must employ the hybrid method to
calculate Owens’s parole eligibility date in order to effectuate all of the pertinent
statutory provisions. Since the DOC has already recalculated Owens’s parole
eligibility date using the hybrid system, we remand with instructions to simply
return the case to the district court.
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