Executive Director of the Colorado Department of Corrections v. Fetzer , 2017 Colo. LEXIS 556 ( 2017 )

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ADVANCE SHEET HEADNOTE
June 26, 2017
2017 CO 77No. 16SC361, Exec. Dir. of the Colo. Dep’t of Corr. v. Fetzer—Parole Eligibility.
The department of corrections petitioned for review of the court of appeals’
judgment reversing an order of the district court that denied Fetzer’s petition pursuant
to C.R.C.P. 106(a)(2). See Fetzer v. Exec. Dir. of the Colo. Dep’t of Corr., 2016 COA 7M,
___ P.3d ___, as modified on denial of reh’g (Apr. 7, 2016). Fetzer’s petition sought an
order compelling the recalculation of his parole eligibility date, asserting that the
department’s “governing sentence” method, which calculated his parole eligibility date
solely on the basis of the longest of his concurrent sentences, violated the statutory
requirement that his multiple sentences be treated as one continuous sentence. The
court of appeals reversed and remanded for recalculation, reasoning both that, contrary
to the department’s understanding, the statutory continuous sentence requirement
applies to concurrent as well as consecutive sentences and that the department’s
“governing sentence” method of calculation could not apply to Fetzer’s sentences
because they were all subject to the same statutory parole provisions.
The supreme court holds that, because the “governing sentence” theories that
have previously been sanctioned by this court have served to determine the statutory
parole and discharge provisions applicable to a single continuous sentence and the
manner in which those provisions can be meaningfully applied to it, rather than as an
alternative to the statutory continuous sentence requirement itself, the department
erred in simply substituting Fetzer’s longest sentence for the required continuous
sentence. Because, however, Fetzer’s multiple sentences are not all subject to the same
statutory parole provisions, as indicated in the court of appeals’ opinion, reference to a
governing sentence, or some comparable means of determining the applicable incidents
of his parole, may remain necessary to the calculation of Fetzer’s parole eligibility date.
The judgment of the court of appeals reversing the district court’s order is therefore
affirmed. Its remand order, directing the department to recalculate Fetzer’s parole
eligibility date in accordance with its opinion, however, is reversed, and the case is
remanded with directions that it be returned to the district court for further
proceedings.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2017 CO 77Supreme Court Case No. 16SC361
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA83
Petitioners:
Executive Director of the Colorado Department of Corrections and Warden for the Buena
Vista Correctional Facility,
v.
Respondent:
Raymond Lee Fetzer.
Judgment Affirmed in Part and Reversed in Part
en banc
June 26, 2017
Attorneys for Petitioners:
Cynthia H. Coffman, Attorney General
Nicole S. Gellar, Senior Assistant Attorney General
Denver, Colorado
Respondent Raymond Lee Fetzer, Pro Se
Buena Vista, Colorado
JUSTICE COATS delivered the Opinion of the Court.
¶1 The department of corrections petitioned for review of the court of appeals’
judgment reversing an order of the district court that denied Fetzer’s petition pursuant
to C.R.C.P. 106(a)(2). See Fetzer v. Exec. Dir. of the Colo. Dep’t of Corr., 2016 COA 7M,
___ P.3d ___, as modified on denial of reh’g (Apr. 7, 2016). Fetzer’s petition sought an
order compelling the recalculation of his parole eligibility date, asserting that the
department’s “governing sentence” method, which calculated his parole eligibility date
solely on the basis of the longest of his concurrent sentences, violated the statutory
requirement that his multiple sentences be treated as one continuous sentence. The
court of appeals reversed and remanded for recalculation, reasoning both that, contrary
to the department’s understanding, the statutory continuous sentence requirement
applies to concurrent as well as consecutive sentences and that the department’s
“governing sentence” method of calculation could not apply to Fetzer’s sentences
because they were all subject to the same statutory parole provisions.
¶2 Because the “governing sentence” theories that have previously been sanctioned
by this court have served to determine the statutory parole and discharge provisions
applicable to a single continuous sentence and the manner in which those provisions
can be meaningfully applied to it, rather than as an alternative to the statutory
continuous sentence requirement itself, the department erred in simply substituting
Fetzer’s longest sentence for the required continuous sentence. Because, however,
Fetzer’s multiple sentences are not all subject to the same statutory parole provisions, as
indicated in the court of appeals’ opinion, reference to a governing sentence, or some
comparable means of determining the applicable incidents of his parole, may remain
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necessary to the calculation of Fetzer’s parole eligibility date. The judgment of the court
of appeals reversing the district court’s order is therefore affirmed. Its remand order,
directing the department to recalculate Fetzer’s parole eligibility date in accordance
with its opinion, however, is reversed, and the case is remanded with directions that it
be returned to the district court for further proceedings.
I.
¶3 Raymond Fetzer, who was and remains in the custody of the Colorado
Department of Corrections as the result of multiple convictions, filed a petition in the
district court, pursuant to C.R.C.P. 106(a)(2), to compel the department to recalculate his
eligibility for parole. As reflected in the pleadings, Fetzer has been convicted, over a
period of years extending back to 1988, of aggravated robbery, first degree burglary,
robbery of the elderly, possession of a weapon by a previous offender, introducing
contraband, and three separate counts of aggravated robbery—menacing the victim.
These convictions have resulted in three concurrent sentences of 20 years each, with an
effective date of August 12, 1988; one sentence of 8 years, with an effective date of May
25, 1990, to be served concurrently with the previous sentences; one sentence of 18
months, with an effective date of November 25, 1991, to be served consecutively with all
previous sentences; one sentence of 22 years, with an effective date of June 17, 1999, to
be served concurrently with all previous sentences; and two sentences of 30 years each,
with effective dates of March 14, 2000, to be served concurrently with each other and
with all previous sentences.
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¶4 Fetzer alleged that by designating one of his 30-year sentences, being his
sentences with the longest incarceration effect, as the governing sentence, and
computing his parole eligibility date solely on the basis of that sentence, the department
failed to comply with a statutory requirement that all of his separate sentences be
treated as a single continuous sentence. Fetzer further alleged that if the department
had instead considered all of his convictions as one continuous sentence running from
the date of his first sentence, August 12, 1988, and had calculated his parole eligibility
date by allowing credits during each relevant time period according to the statutory
provisions in effect at the time, he would have become eligible to be considered for
parole several years earlier.
¶5 The department moved to dismiss on the grounds that the statutory continuous
sentence requirement applies only to consecutive sentences and that the incidents of
parole applicable to an inmate serving multiple concurrent sentences are to be
determined according to the “governing sentence” method. By considering Fetzer’s
longest concurrent sentence as the “governing sentence,” and not only applying the
particular parole provisions applicable to that sentence but applying them as if that
sentence were the only sentence currently being served by him, the department
calculated that Fetzer will not become eligible for parole until June 2019, and that he
will not reach his mandatory release date until August 2026.
¶6 The district court granted the department’s motion and dismissed the petition.
The court of appeals, however, reversed, concluding that the plain language of section
17-22.5-101 of the revised statutes, requiring as it does that all of an inmate’s separate
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sentences be construed as one continuous sentence, applies to all separate sentences,
whether ordered to be served concurrently or consecutively. Further, surveying this
court’s precedent, the intermediate appellate court concluded that the “governing
sentence” method is applicable only to inmates whose various sentences are subject to
conflicting parole provisions, and understanding all of Fetzer’s sentences to be subject
to the same parole provisions, it concluded that the “governing sentence” method
cannot apply to them. It therefore remanded for the department to recalculate Fetzer’s
parole eligibility date in accordance with its opinion.
¶7 The department of corrections petitioned for a writ of certiorari.
II.
¶8 For purposes of administering a criminal convict’s sentence, this jurisdiction has
long required that his separate sentences be construed as one continuous sentence. See,
e.g., In re Packer, 33 P. 578, 580 (Colo. 1893) (relying on “one continuous sentence” rule
from 1876 parole statute as support for imposing consecutive sentences for five
voluntary manslaughter convictions). Currently, section 17-22.5-101, C.R.S. (2016),
imposes a seemingly clear command: “For the purposes of this article, when any
inmate has been committed under several convictions with separate sentences, the
department shall construe all sentences as one continuous sentence.” Neither this
statute nor any of its predecessors, however, has ever provided guidance concerning
the eventuality of disparate statutory parole provisions otherwise applicable to the
various sentences comprising the mandated continuous sentence. Largely as the result
of a series of dramatic changes since the late 1970s in the nature and philosophy of
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criminal sentencing in this jurisdiction, including the treatment of parole supervision,
this court has been forced on a number of occasions to review the practices of the
department of corrections in administering the continuous sentence requirement.
¶9 Prior to 1979, criminal courts were required to sentence convicted felons to an
indeterminate term with fixed minimum and maximum limits, leaving the parole board
tremendous discretion within that range to determine whether, when, and for how long
to release an inmate to parole. See Ankeney v. Raemisch, 2015 CO 14, ¶ 9, 344 P.3d 847,
849–50. In 1979, however, the legislature enacted what has been referred to as a
“determinate sentencing system,” in which a felony offender was sentenced to a specific
term of years, with an additional statutorily mandated term of parole to be served upon
discharge from incarceration. Id.; Thiret v. Kautzky, 792 P.2d 801, 803–04 (Colo. 1990).
In that particular sentencing scheme, the parole board lost all discretion concerning
whether, when, and for how long to release an offender to parole. Thiret, 792 P.2d at
803–04. Importantly, when an inmate became “eligible” for parole under that
framework, he was also entitled to release to serve the statutorily prescribed period of
parole. Id.
¶10 In 1985, the legislature shifted its sentencing philosophy by enacting what has
been referred to as a “modified determinate sentencing system,” restoring much
discretion to the parole board to determine whether, when, and for how long to release
an otherwise eligible offender to parole, within a range extending from the date upon
which he became eligible for parole until the date upon which he had fully discharged
his sentence. See id.; Renneke v. Kautzky, 782 P.2d 343, 346 (Colo. 1989). Finally, in
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1993, the legislature fundamentally altered the sentencing system once more, this time
leaving discretion with the parole board to determine whether and when to release an
eligible offender to parole, any time before his release would be mandated, but
imposing statutorily prescribed periods of parole for most classes of offenders, which
parole terms then would become a separate component of the sentence, to be fully
served whether the offender had already completed the full term of incarceration to
which he was sentenced or not. Ankeney, ¶ 10, 344 P.3d at 850; People v. Norton, 63
P.3d 339, 343 (Colo. 2003). Each of these schemes reflects a different concept of parole,
with different characteristics concerning whether parole is part of or separate from the
sentence judicially imposed, whether early release is a right or a privilege, and whether
the term of parole supervision should be fixed or should vary with the circumstances
and behavior of each individual offender.
¶11 Over a similar period, the legislature enacted substantial, although not always
directly corresponding, changes to the statutes prescribing the calculation of both parole
eligibility and ultimate discharge dates. Before July 1979, the statutory scheme
provided for various credits capable of rendering an inmate eligible for parole before
reaching even the minimum limit of his indeterminate sentence. See Ankeney, ¶ 11, 344
P.3d at 850; §§ 17-22.5-201 to -203, C.R.S. (2016). For crimes committed after July 1, 1979,
but before 1990, the statutory scheme provided for good time and earned time credits,
which, although not constituting the actual service of his sentence, rendered the inmate
eligible for parole before serving his full determinate sentence. See Ankeney, ¶ 11, 344
P.3d at 850; §§ 17-22.5-301 to -307, C.R.S. (2016). By the very nature of the “determinate
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sentencing system” that existed until mid-1985, eligibility for parole alone mandated
release to a statutorily-predetermined period of parole. See Bynum v. Kautzky, 784
P.2d 735, 738–39 (Colo. 1989). Although largely the same regimen for providing credits
remained in place until 1990, eligibility for parole in the “modified determinate
sentencing system,” which became effective in mid-1985, no longer required release to a
predetermined period of parole but rather placed the matter in the discretion of the
parole board, permitting it to release an eligible inmate any time before reaching his
mandatory release date, for any period of parole not to exceed the time remaining
before reaching that mandatory release date. See Jones v. Martinez, 799 P.2d 385, 387
(Colo. 1990).
¶12 Finally, in 1990, the legislature added an entirely new scheme for parole
eligibility and discharge from custody, abandoning the concept of good time altogether,
in favor of a new formula for parole eligibility, making most felony offenders eligible
after the service of a prescribed percentage of the sentence imposed upon them—either
50% or 75%, depending upon the inmate’s particular crime and prior record of
convictions—less earned time granted in accordance with the provisions of the new
scheme. See Ankeney, ¶ 12, 344 P.3d at 850–51; §§ 17-22.5-401 to -406, C.R.S. (2016).
The new scheme was generally made applicable to all offenders sentenced for crimes
committed after July 1, 1979, thereby largely superseding the pre-1990 system of
eligibility and discharge, but because it expressly excluded certain pre-1990 offenders
who failed to meet specific criteria, it did not fully replace that pre-1990 system, and
instead coexists alongside it. See Ankeney, 2015 CO 14, 344 P.3d 847; § 17-22.5-406(3).
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¶13 In this legislative environment, it has not been uncommon to encounter inmates
suffering under separate sentences, imposed under different sentencing frameworks,
often with incompatible provisions governing the service of those sentences—
implicating, among other things, the relationship between incarceration and parole as
component parts of a sentence, the mandatory or discretionary nature of release to
parole, and the determination of both eligibility for parole and the actual service of a
sentence. In 1986, this court first approved the department’s reliance on the offense that
produces the longest incarceration effect to calculate the credits legislatively authorized
to reduce the actual amount of time convicted felons remained incarcerated. Price v.
Mills, 728 P.2d 715 (Colo. 1986). In Price, where the inmates suffered under both
indeterminate sentences with longer incarceration effects, under the pre-1979
sentencing statute, and concurrent shorter determinate sentences, under the post-1979
determinate sentencing system, in order to comply with the continuous sentence
requirement, the department applied a single system of credits from the pre-1979
statutes to a “composite ‘governing sentence,’” created by considering the sentences
together to arrive at a minimum governing sentence, equal to the inmates’ determinate
sentence, and a maximum governing sentence, equal to the maximum end of the
inmates’ indeterminate sentence. Id. at 718.
¶14 We concluded that the requirement for one continuous sentence “indicate[d] a
legislative decision that for purposes of administering the various time-reducing credits
defined by the General Assembly, the department must employ some type of hybrid or
‘composite’ sentence to which the credits may be applied.” Id. at 719. Finding that the
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legislature also intended that persons convicted of more than one offense not receive
double credits, we upheld the department’s solution, concluding that its interpretation
of its responsibility to administer all of these statutes was reasonable and contravened
no legislative or constitutional rights or policies. Id. Under such circumstances, we
held that the department’s “administrative interpretation of the statutes is entitled to
great weight.” Id. Two years later, despite recognizing that the pre- and post-1979
statutes might be interpreted to mandate separate good time credit calculations for the
defendant’s separate consecutive sentences, we reaffirmed our willingness to defer to
the department’s administrative interpretation, relying on the sentence with the longest
incarceration effect, even where the separate sentences were ordered to run
consecutively, as long as that interpretation was “reasonable and contravene[d] no
legislative or constitutional rights or policies.” People v. Broga, 750 P.2d 59, 63 (Colo.
1988).
¶15 In the ensuing decade, with regard to inmates with separate sentences at least
one of which would otherwise be subject to mandatory release upon becoming eligible
for parole and at least one of which would otherwise be subject to discretionary release
upon becoming eligible, we began to refer to governance of the continuous sentence by
the provisions applicable to the sentence with the longest incarceration effect as a
governing sentence “concept,” “rule,” “principle,” “theory,” or “analysis.” See Spoto v.
Dep’t of Corr., 883 P.2d 11, 14 (Colo. 1994); Vaughn v. Gunter, 820 P.2d 659, 662 (Colo.
1991). With regard to the determination of an inmate’s mandatory release date when
his continuous sentence included a sentence subject to mandatory parole as well as a
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sentence subject to discretionary parole, we concluded that a governing sentence
analysis was necessary when the sentences were ordered to run concurrently, Vaughn,
820 P.2d at 661–62; Thiret, 792 P.2d at 807–08, but was not necessary, and could not
control, when they were ordered to run consecutively, Badger v. Suthers, 985 P.2d 1042,
1043–44 (Colo. 1999); Spoto, 883 P.2d at 14–15. With regard to the latter situation, we
reasoned that regardless of the parole characteristics otherwise governing the longer
sentence, the effect of a sentence as to which parole was merely discretionary, following
consecutively upon a sentence as to which parole was mandatory, would necessarily be
to “nullify” or preclude the mandatory release of the inmate. Spoto, 883 P.2d at 15.
Because the inmate’s parole eligibility date in these pre- and post-1985 cases would be
governed by the same credit provisions in any event, the ultimate question before this
court was simply whether the inmate’s parole eligibility and mandatory release dates
would necessarily be identical.
¶16 We have, however, never suggested that there is only one governing sentence
“method” or “methodology,” which must apply to concurrent separate sentences for all
purposes and which may not apply to consecutive separate sentences for any purpose.
Similarly, we have never sanctioned a governing sentence methodology that would
permit the calculation of an inmate’s parole eligibility date solely on the basis of his
longest concurrent sentence, in lieu of a composite continuous sentence accounting for
all his separate sentences. Rather, the composite governing sentence has always
controlled as an application of—not a substitute for—the statutorily required one
continuous sentence. See, e.g., Vaughn, 820 P.2d at 661–62; Thiret, 792 P.2d at 808;
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Broga, 750 P.2d at 63; Price, 728 P.2d at 719. In those few cases in which we have
approved reliance on an inmate’s longest sentence to determine the applicable credit or
sentencing scheme, the longest or governing sentence has had either the earliest
effective date of all the inmate’s separate sentences or an effective date coinciding with
those of the inmate’s other separate sentences, and therefore the starting point of the
governing sentence coincided with the starting point of the composite continuous
sentence.
¶17 While the department’s interpretation of its responsibilities to administer
relevant statutory mandates is entitled to great weight, in this case the department
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 department makes clear that it considers its governing sentence method,
as applied to concurrent sentences, to be an exception to the statutory requirement,
mandated by the prior decisions of this court. As we have explained, the department
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.
III.
¶18 Beyond merely finding that the department erred in calculating Fetzer’s parole
eligibility date solely on the basis of his longest sentence, the court of appeals also
opined concerning the calculation of Fetzer’s parole eligibility date on remand. Of
particular note, the court of appeals summarily concluded, in apparent reference to the
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applicability of part 4 of article 22.5 to all but expressly excluded offenders whose
crimes were committed on or after July 1, 1979, that all of Fetzer’s sentences are subject
to the same parole provisions and that the governing sentence method, therefore,
cannot apply to them. Apart from the fact that both this court and the court of appeals
itself have determined that the novel governing sentence method advocated here by the
department violates the continuous sentence requirement and therefore may not be
applied under any circumstances, we believe a broad rule to the effect that no
governing sentence principle could ever be proper in administering part 4 would be
both precipitous and unnecessarily restrictive of the department’s discretion.
¶19 While part 4 of article 22.5 largely supersedes the credit provisions of part 3, it
contains numerous exclusions for offenders already incarcerated on June 7, 1990, which
are hardly straightforward and have not yet been fully and finally litigated. See
§ 17-22.5-406, C.R.S. (2016); see also Ankeney, ¶ 21 & n.15, 344 P.3d at 855 & n.15.
Perhaps even more importantly, the provisions of part 4 itself provide for the disparate
treatment of offenders, not only for purposes of parole eligibility but also based on such
considerations as the duration of parole, the possible consequences of revocation, and
the entitlement to ultimate discharge of sentence, based upon the particular time frame
in which their crimes were committed. See, e.g., §§ 17-22.5-403(1)–(3.5) (requiring
service of either 50% or 75% of sentence depending upon crime and offender’s criminal
record); 17-22.5-403(5) –(7) (dictating different permissible periods of parole for pre- and
post-1993 crimes); 17-22.5-403(8) (establishing different incidents of parole for sex
offenders); cf. Thiret, 792 P.2d at 803–07 (applying governing sentence when offenses
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were committed on same date but were nonetheless subject to more than one set of
parole rules). It is the responsibility of the department to fairly and consistently
administer an inmate’s statutorily required continuous sentence, whether disparate
provisions otherwise governing the inmate’s separate sentences result from subsequent
statutory amendments or not.
¶20 Because the department erroneously calculated Fetzer’s parole eligibility date on
the basis of his last and longest sentence alone, it has not yet been faced with calculating
and determining the various incidents of parole that should apply to a composite
continuous sentence encompassing all of his separate sentences. 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. Whether or not other systems of
determining the applicable parole statutes and applying them to the composite
continuous sentences mandated by section 17-22.5-101 might also be acceptable, unless
the methodology selected by the department contravenes a statute or the constitutional
rights of an inmate, it will be upheld. Price, 728 P.2d at 719.
IV.
¶21 Because the “governing sentence” theories that have previously been sanctioned
by this court have served to determine the statutory parole and discharge provisions
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applicable to a single continuous sentence and the manner in which those provisions
can be meaningfully applied to it, rather than as an alternative to the statutory
continuous sentence requirement itself, the department erred in simply substituting
Fetzer’s longest sentence for the required continuous sentence. Because, however,
Fetzer’s multiple sentences are not all subject to the same statutory parole scheme, as
indicated in the court of appeals’ opinion, reference to a governing sentence, or some
comparable means of determining the applicable incidents of his parole, may remain
necessary to the calculation of Fetzer’s parole eligibility date. The judgment of the court
of appeals reversing the district court’s order is therefore affirmed. Its remand order,
directing the department to recalculate Fetzer’s parole eligibility date in accordance
with its opinion, however, is reversed, and the case is remanded with directions that it
be returned to the district court for further proceedings.
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