People v. Black

Justice MULLARKEY

delivered the Opinion of the Court.

We granted certiorari to consider whether the court of appeals erred in remanding this case to the trial court to determine whether the parole eligibility scheme, as applied to persons convicted of sex offenses occurring between July 1, 1979, and July 1, 1985, violates the equal protection clause. People v. Black, 894 P.2d 767 (Colo.App.1994). We find no violation of the equal protection clause and therefore reverse the judgment of the court of appeals.

I.

Defendant Earl S. Black (Black) was' convicted in 1984 of one count of first-degree sexual assault, § 18-3-402, 8B C.R.S. (1978 & 1988 Supp.), and one count of crime of violence, § 16-11-309, 8A C.R.S. (1982 Supp.), for a sexual assault that he committed in 1983. Black was sentenced to a term of 14 years’ imprisonment plus one year of mandatory parole.

In August 1989, Black, pro se, filed a Crim. P. 35(c) motion claiming that he had served his entire sentence and that his release on parole was mandatory. The trial court denied the motion, and the court of appeals affirmed the trial court’s order. See People v. Black, (ColoApp. No. 89CA1840, August 16, 1990) (not selected for official publication).

In February 1993, Black, through counsel, filed another Crim. P. 35(c) motion claiming that his sentence was illegal because it included a period of mandatory parole and because it violated both the due process and equal protection clauses. The trial court denied the motion, but modified Black’s sentence by deleting the one-year mandatory parole requirement. Black appealed.

The court of appeals found that any illegality was eliminated by the trial court’s deletion of the parole requirement, and rejected Black’s due process claim. People v. Black, 894 P.2d at 771. However, the court of appeals held that Black had alleged facts supporting an “as applied” equal protection claim and remanded the ease to the trial court for development of the facts. Id. at 772. The court of appeals instructed the trial court to determine whether the relevant sentencing scheme “as applied to this defendant, creates disparate treatment without a rational basis for such disparity.” Id. The People’s petition for certiorari review was subsequently granted by this court as to the following issue:

Whether the court of appeals erred in remanding this ease to the trial court to determine whether the parole eligibility scheme as applied to sex offenders violates the Equal Protection Clause.

II.

Black’s equal protection theory is that the applicable sentencing scheme treats him more harshly than it treats other persons who have been convicted of both sex offenses and more serious crimes. In Thiret v. Kautzky, 792 P.2d 801 (Colo.1990), we explained in detail the operation of the sentencing statutes for crimes committed between July 1, 1979, and July 1, 1985, which is the relevant time period for the present case. For most offenses, the determinate sentencing laws provide that parole is mandatory. That is, an inmate who has earned sufficient good time and earned time credits toward completion of Ms sentence is entitled to be released on parole and the Colorado State Parole Board (Parole Board) has no discretion to deny parole. Thiret v. Kautzky, 792 P.2d at 803-805.

Sentences for sex offenses, however, are not subject to mandatory parole. An inmate serving a sentence for conviction of a sex offense also earns good time and earned time credits but such credits serve only to make the inmate eligible for parole. The Parole Board retains discretion to release the inmate on parole and may require an inmate to serve the entire sentence in incarceration. Thiret v. Kautzky, 792 P.2d at 805-806.

TMs statutory mixture of mandatory and discretionary parole provisions has given rise to questions in the cases of inmates who are serving concurrent sentences for multiple crimes when the underlying crimes are subject to different treatment for purposes of parole. In Thiret, for example, the defendant was sentenced concurrently to a ten-year sentence with mandatory parole for attempted murder and a four-year sentence with discretionary parole for sexual assault on a child. Id. at 805. We rejected the prosecution’s contention that the defendant was subject to a “hybrid” sentence of ten years with discretionary parole. Id. at 808. Instead, we found the governing sentence rule of Price v. Mills, 728 P.2d 715 (Colo. 1986), to be dispositive. Id. Under the governing sentence rule, the longest of an inmate’s concurrent sentences and its parole provisions prevails. Because Thiret was eligible for parole on his ten-year mandatory parole sentence, we ordered him released on parole. Thiret v. Kautzky, 792 P.2d at 808.

A similar issue was raised in Vaughn v. Gunter, 820 P.2d 659 (Colo.1991), where the inmate was serving concurrent sentences for crimes occurring both before and after July 1, 1985, when mandatory parole was statutorily abolished. Again, we applied the gov-ermng sentence rule and held that the inmate’s parole eligibility was determined by the longest sentence, wMch in that case carried a mandatory parole provision. We rejected the prosecution’s argument that the governing sentence rule should be abandoned because it would produce absurd results. We noted that the governing sentence rule in fact had been applied to the defendant by the Department of Corrections, that no reasonable alternative rule was proposed, and that the longest sentence carried the greatest potential incarceration time. Id. at 662.

The case now before us presents a related but different issue from those considered in Thiret and Vaughn. Because Black received a single fourteen-year sentence for a sex offense subject to discretionary parole, Ms case does not present the problem of concurrent sentences with different parole provisions like Thiret and Vaughn. The Parole Board, exercising its discretion, has declined to parole Black and he has served his entire sentence in incarceration.¹

Black contends that because of the statutory mixture of mandatory and discretionary parole, he has been treated more harshly than others who have committed more serious crimes and that tMs disparate treatment violates Ms right to equal protection. He contends that other offenders who have been convicted of both a sex offense subject to discretionary parole and another more serious crime will serve less time in incarceration than he will because the longer sentences for the more serious crimes will be the governing sentences and such sentences are subject to mandatory parole. The court of appeals, in accepting Black’s “as-applied” equal protection theory, remanded the case so that Black could present evidence of other offenders’ sentences to prove that Black was punished more severely than other, more culpable offenders.

We find it unnecessary to remand this case for the presentation of evidence because we agree that the scenario described by Black and summarized above can occur under the determinate sentencing law applicable to crimes committed between July 1, 1979, and July 1, 1985. Construing Black’s argument as a facial equal protection challenge to the provisions of discretionary parole for sex offenses subject to that law, we reject his argument and uphold the constitutionality of the law.

III.

Black’s equal protection analysis is an attempt to extend the theory first adopted by this court in People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975), where we held that “[a] statute which prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like situations is violative of a person’s right to equal protection of the laws.” Calvaresi found that the culpable mental states required for reckless manslaughter and criminally negligent homicide were indistinguishable and invalidated the classification of the first crime as a felony and the second crime as a misdemeanor. Id. at 282-283, 534 P.2d at 318-319. In subsequent cases, however, we declined to use that equal protection analysis as a means to review the legislature’s ranking of crimes for purposes of punishment. For example, in People v. Morgan, 637 P.2d 338 (Colo.1981), the court rejected an equal protection challenge to the felony murder statute. The defendant contended that felony murder could not constitutionally be punished more severely than criminally negligent homicide because criminally negligent homicide was the more serious of the two crimes. The defendant’s argument regarding the relative seriousness of the two crimes was based on his correct observation that felony murder did not require proof of a culpable mental state but criminally negligent homicide did require such proof. Id. at 345. We rejected the defendant’s argument and held that the legislature was free to determine the severity of the punishment to be imposed on separately defined crimes:

The legislature may provide that a homicide committed during defendant’s participation in a felony shall be punishable as first-degree murder. This legislative decision is in no way rendered arbitrary by a legislative determination that criminally negligent homicide, although requiring a culpable mental state, is a less serious offense.

Id. (citation omitted). Recent cases have applied the equal protection analysis to cases involving different punishments for the same or very closely related crimes. See, e.g., People v. Nguyen, 900 P.2d 37 (Colo.1995) (invalidating the “attempt” section of the second degree assault statute); Smith v. People, 852 P.2d 420 (Colo.1993) (invalidating different penalties for second degree assault). Black cites no case in which the equal protection classifications invalidated have involved different combinations of crimes. There was no equal protection violation in Morgan and there is none in the case now before us because persons who commit different crimes and different combinations of crimes are not similarly situated.²

The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated. Harris v. The Ark, 810 P.2d 226 (Colo.1991). An equal protection challenge must fail if persons alleging disparate treatment are not similarly situated. Western Metal Lath v. Acoustical & Constr. Supply, Inc., 851 P.2d 875, 880 (Colo. 1993).

Black’s equal protection claim does not meet the threshold test. Black and persons who have been convicted of only sex offenses are not similarly situated to those sex offenders who committed multiple offenses during the same time period and who received longer concurrent sentences for the other crimes. They are not similarly situated because inmates in the two categories have committed different crimes, and the multiple offenders will not always be released prior to Black or treated less harshly. Black and persons in his position become parole-eligible and actually may be granted discretionary parole after a shorter period of incarceration than a sex offender whose sentence is governed by a longer concurrent sentence imposed for a non-sex offense. Thus, Black has failed to prove disparate treatment of similarly situated classes.

Even assuming that Black meets the similarly situated test, his equal protection challenge fails the rational basis test. In the absence of a classification that infringes on a fundamental right, creates a suspect class, or creates a classification subject to an intermediate level of scrutiny, such as illegitimacy and gender, “persons may be treated differently without violating equal protection guarantees if the statutory classification has some reasonable basis in fact and bears a rational relationship to a legitimate state purpose.” Dove v. Delgado, 808 P.2d 1270, 1274 (Colo. 1991). Here, the sentencing scheme at issue does not infringe on a fundamental right, create a suspect classification, or involve an intermediate level of scrutiny. Thus, we examine its validity under a rational basis standard of review.

Under that standard, a presumption of constitutionality attaches to a statute and the party asserting the unconstitutionality of the statute bears the burden of proving its invalidity beyond a reasonable doubt. Dove, 808 P.2d at 1274. The question is whether the classification bears a reasonable relationship to a legitimate governmental interest. Harris, 810 P.2d at 233. Here, the legitimate governmental interest is public safety. As we recognized in Vaughn, a longer sentence with a mandatory parole provision is a more serious sentence than a shorter sentence with a discretionary parole provision. This is so because an offender on parole is still serving a sentence of imprisonment and is subject to reincarceration for a parole violation. Vaughn v. Gunter, 820 P.2d at 662. Black attacks the reasoning of Vaughn by arguing that release on mandatory parole with the prospect of being rein-carcerated for a parole violation is far less onerous and much more desirable to an offender than facing discretionary parole with the possibility of continuous incarceration. Black’s subjective assessment of the relative merits of mandatory and discretionary parole does not make the sentencing scheme irrational. Longer sentences still carry the greater potential for incarceration and shorter sentences still have earlier eligibility for parole. That an inmate such as Black may serve his entire sentence in incarceration does not demonstrate that the sentencing scheme is not rationally related to the protection of public safety.

Finally, we reject the People’s alternative argument that the Parole Board has complete discretion to grant or deny parole to all persons serving sentences for sex offenses regardless of any concurrent sentences they may be serving. The discretionary parole provisions of section 17-2-201(5)(a), 8A C.R.S. (1986), apply to convictions for sex offenses, and we see no basis to conclude that a person who has been concurrently sentenced for a sex offense loses the right to mandatory parole on a longer, otherwise governing sentence. Thiret v. Kautzky, 792 P.2d at 808; Vaughn v. Gunter, 820 P.2d at 662. Rather, we agree with the People that Black has failed to prove beyond a reasonable doubt that the parole eligibility scheme, as applied to persons convicted of sex offenses occurring between July 1, 1979, and July 1, 1985, violates the equal protection clause.

The judgment of the court of appeals is reversed, and the case is remanded with directions to reinstate the order of the district court denying Black’s petition for a writ of habeas corpus.

LOHR, J., concurs in part and dissents in part. ERICKSON and KIRSHBAUM, JJ., join in the concurrence and dissent.

1 . Generally, an appellate court will decline to render an opinion on the merits of an appeal when events subsequent to the underlying litigation have rendered the issue moot. Humphrey v. Southwestern Development Co., 734 P.2d 637 (Colo.1987).

Exceptions to this general rule are those cases in which an otherwise moot matter is capable of repetition, yet evading review, and those cases involving matters of great public importance or an allegedly recurring constitutional violation. Id. Although Black was scheduled for discharge in July 1995 and by now has served his term and been released, the issue presented here is capable "of repetition but may evade review. Massey v. People, 736 P.2d 19 (Colo.1987); People v. Quinonez, 735 P.2d 159 (Colo.1987); Urevich v. Woodard, 667 P.2d 760 (Colo. 1983). We thus elect to issue an opinion and not dismiss this case as moot.

2 . Black’s definition of the classifications at issue has varied. For example, his brief in this court states that he "challenges the disparate treatment of inmates like himself convicted of a single sex offense and the more lenient treatment of inmates who are: (a) convicted of the same offense plus an additional offense; or (b) convicted of kidnapping involving sexual assault; or (c) convicted of felony assault involving sexual assault.” He also challenges "the irrationality of the present sentencing scheme which results in a person being treated more or less harshly depending on the date on which they are sentenced." In his Crim. P. 35(c) motion, Black alleged that he was denied equal protection "because he is treated more harshly than inmates who are identically situated except for the fact that they have been convicted of sexual assault plus an additional offense.”