This case involves an appeal of a habeas corpus proceeding regarding whether good time credits should be applied to an inmate's mandatory release date. The Colorado Department of Corrections and the district court disagree on this issue. The Department of Corrections argues that the district court misapplied good time credits by discharging both the inmate's sentence and mandatory parole based on the credits, contrary to statute and prior Colorado Supreme Court decisions. The inmate argues the district court properly interpreted the law to discharge his sentence and parole. The Colorado Supreme Court will determine which interpretation of good time credits is correct.
This case involves an appeal of a habeas corpus proceeding regarding whether good time credits should be applied to an inmate's mandatory release date. The Colorado Department of Corrections and the district court disagree on this issue. The Department of Corrections argues that the district court misapplied good time credits by discharging both the inmate's sentence and mandatory parole based on the credits, contrary to statute and prior Colorado Supreme Court decisions. The inmate argues the district court properly interpreted the law to discharge his sentence and parole. The Colorado Supreme Court will determine which interpretation of good time credits is correct.
This case involves an appeal of a habeas corpus proceeding regarding whether good time credits should be applied to an inmate's mandatory release date. The Colorado Department of Corrections and the district court disagree on this issue. The Department of Corrections argues that the district court misapplied good time credits by discharging both the inmate's sentence and mandatory parole based on the credits, contrary to statute and prior Colorado Supreme Court decisions. The inmate argues the district court properly interpreted the law to discharge his sentence and parole. The Colorado Supreme Court will determine which interpretation of good time credits is correct.
Denver, CO 80203 On Appeal from Honorable Judge David M. Thorson, District Court Fremont County Case No. 2012CV22 RANDAL ANKENEY,
Petitioner-Appellee,
v.
RICK RAEMISCH, EXECUTIVE DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS; LOU ARCHULETTA, WARDEN OF THE FREMONT CORRECTIONAL FACILITY,
Respondents-Appellants. COURT USE ONLY Supreme Court Case No: 2013SA336 JOHN W. SUTHERS, Attorney General JAMES W. QUINN, First Assistant Attorney General, * Ralph L. Carr Colorado Judicial Center 1300 Broadway, Floor Denver, CO 80203 Telephone: (720) 508-6610 Facsimile: (720) 508-6032 E-Mail: [email protected] Registration Number: 46394 *Counsel of Record OPENING BRIEF
DATE FILED: May 27, 2014 5:00 PM FILING ID: 3E508D814C331 CASE NUMBER: 2013SA336 TABLE OF CONTENTS
PAGE i STATEMENT OF THE ISSUES ............................................................... 1 STATEMENT OF THE CASE .................................................................. 2 I. Nature of the Case ........................................................................... 2 II. Course of proceedings and disposition of the case below ................ 3 STATEMENT OF THE FACTS ................................................................ 5 SUMMARY OF ARGUMENT ................................................................... 6 ARGUMENT ............................................................................................. 7 I. The Court of Appeals erroneously concluded that good time should be credited toward an inmates mandatory release date ................................................................................................... 7 A. Standard of review ......................................................................... 7 B. Overview ......................................................................................... 7 C. Changes in Colorados statutory parole schemes over time ....... 10 D. Earned time credit is applied to an inmates mandatory release date, but good time credit is not ...................................... 21 E. The error in the Ankeney decision ............................................... 24 II. The district court erred in concluding that it had jurisdiction to discharge Ankeneys three year mandatory parole after two months when the Parole Board was not a party to the proceedings. .................................................................................... 32 A. Standard of review. ...................................................................... 32 B. The district court lacked personal jurisdiction over the Parole Board to order the discharge Ankeneys three year mandatory parole after Ankeney had only served two months of mandatory parole ........................................................ 32 CONCLUSION ........................................................................................ 34 TABLE OF AUTHORITIES
PAGE ii CASES Academy of Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456 (Colo. 2001) ....................................................................... 22 Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug. 22, 2013)(unpublished) ................................................................. passim Badger v. Suthers, 985 P.2d 1042 (Colo. 1999) ................................ 15, 27 Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989) ................................. 16, 17 Cardiel v. Brittian, 833 P.2d 748 (Colo. 1992) ........................................ 33 Colo. Dept. of Corrs., Parole Div. ex rel. Miller v. Madison, 85 P.3d 542 (Colo. 2004) .............................................................................. 7 Craig v. People, 986 P.2d 951 (Colo. 1999) ............................................. 15 Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo. Mar. 3, 2011) ..................................................................................................... 20 Hughes v. Jones, 3 P.2d 1074 (1931) ...................................................... 32 In re Marriage of Malwitz, 99 P.3d 56 (Colo. 2004) ............................... 32 Jones v. Martinez, 799 P.2d 385 (Colo. 1990) ......................................... 16 Klein v. Coblentz, No. 96-1289 WL 767538, at *4; 1997 U.S. App. LEXIS ................................................................................................... 20 Linker v. Linker, 470 P.2d 882 (1970) .................................................... 32 Lusero v. Welt, 223 Fed. Appx 780 (10th Cir. 2007) ........................ 19, 20 Meyers v. Price, 842 P.2d 229 (Colo. 1992) ....................... 8, 16, 21, 22, 24 Nowak v. Suthers et al., 320 P.3d 340 (Colo. 2014) ................................ 18 People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998), cert. granted, judgment affirmed without opinion (Colo. 2000) ................................. 33 People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992) ........................... 17 People v. Luther, 58 P.3d 1013 (Colo. 2002) ................... 23, 24, 28, 29, 33 TABLE OF AUTHORITIES
PAGE iii People v. McCreadie, 938 P.2d 528 n.6 (Colo. 1997) ................................ 8 People v. McCullough, 6 P.3d 774 (Colo. 2000) ...................................... 21 People v. Norton, 63 P.3d 339 (Colo. 2003) ........................... 13, 14, 27, 29 People v. Watson, 892 P.2d 388 (Colo. App. 1994), cert. denied (Colo. 1995) ........................................................................................... 16 Rather v. Suthers, 973 P.2d 1264 (Colo. 1999), cert denied, 528 U.S. 834 (1999) ....................................................................................... 8 Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989) ......................... 16, 17, 30 Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990) ................................. passim Thorson v. Colorado Dept. of Corrs., 801 P.2d 540 (Colo. 1990) ........... 16 Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App. 1999) ................ 32 Verrier v. Colo. Dept of Corrs., 77 P.3d 875 (Colo. App. 2003) ................ 8 Wiedemer v. People, 784 P.2d 739 (Colo. 1989) ...................................... 16 STATUTES 13-17.5-103(1), C.R.S. (2012) .......................................................... 15, 26 16-11-310, C.R.S. (repealed 1988) .................................................. 15, 27 17-22.5-301(2), C.R.S. (2013) .......................................................... 16, 30 17-22.5-301(3), C.R.S. (2013) .................................................... 16, 17, 30 17-22.5-402, C.R.S. (2013) .................................................................... 17 17-22.5-402(2), C.R.S. (2013) ................................................................ 17 17-22.5-402(1), C.R.S. (2013) ................................................................ 17 17-22.5-403, C.R.S. (2013) .................................................................... 19 17-22.5-403(1), C.R.S. (2013) .................................................................. 9 17-22.5-403(3), C.R.S. (2013) ................................................................ 17 17-22.5-403(3.5), C.R.S. (2013) ............................................................. 17 TABLE OF AUTHORITIES
PRIOR RELATED APPEAL Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug. 22, 2013)(unpublished)
Respondents-Appellants Rick Raemisch and Lou Archuletta, 1
through the Colorado Attorney General, respectfully submit the following Opening Brief. STATEMENT OF THE ISSUES This is a direct appeal of a habeas corpus proceeding. The case was originally filed as an action seeking habeas corpus and mandamus relief. The district court dismissed the claim based upon Respondents Motion to Dismiss or in the Alternative Motion for Summary Judgment. Petitioner Ankeney sought review by the court of appeals. The court of appeals erroneously reversed and remanded after analyzing the mandamus claim. Noting that it lacked jurisdiction with respect to the habeas claim, the court of appeals instructed the district court on remand to reconsider Ankeneys habeas claim. Acting upon the court of appeals direction, the district court, in contravention of statute and
1 Tom Clements, the former Executive Director of the Colorado Department of Correction was murdered on March 19, 2013. In addition, Rae Timme retired from the Colorado Department of Corrections. Pursuant to C.A.R. 43(c) Rick Raemisch, Clementss successor, and Lou Archletta, Timmes successor, are automatically substituted as the Respondents-Appellees. 2
prior Supreme Court decisions, applied good time credits to Ankeneys sentence discharge date as opposed to his parole eligibility date. The district court granted Ankeney habeas relief, discharging both his sentence and his mandatory parole. The issues on appeal are: 1. Whether the court of appeals and district court erred in concluding that good time credits apply to an inmates discharge date thus releasing an inmate after service of half of the imposed sentence and eliminating discretionary parole.
2. Whether the district court erred in concluding that it had jurisdiction to discharge Ankeneys three year mandatory parole after two months when the Parole Board was not a party to the proceedings. STATEMENT OF THE CASE I. Nature of the Case At the time this case was initially filed, Petitioner-Appellee Ankeney was incarcerated at the Fremont Correctional Facility. Ankeney filed a Petition for Writ of Habeas Corpus and Complaint Pursuant to C.R.C.P. 106 seeking release from incarceration. In his Petition/Complaint, Ankeney asserted that the Colorado Department of Corrections miscalculated his mandatory release date, which he calculated to have been November 19, 2011. Ankeney asked the district 3
court to order Respondents-Appellants to calculate his mandatory release date - specifically, to compel the award of all earned time and good time, statutorily mandated or otherwise earned or awarded so that he could begin serving his mandatory parole period associated with his sentence. See Petition for Writ of Habeas Corpus and Complaint pursuant to C.R.C.P. 106, CD pp. 1-10. 2
II. Course of proceedings and disposition of the case below Respondents filed a Motion to Dismiss, or in the Alternative Motion for Summary Judgment. See Motion to Dismiss, CD at pp. 66- 76. After Ankeney responded to the motion, the district court issued an order denying Ankeneys request for habeas relief, concluding that he failed to plead facts stating a prima facie case for habeas corpus relief. See Order at pp. 97-99. Later, the district court dismissed Ankeneys mandamus claim, based on his inability to pay the required filing fee, which, the court found, was not waivable under section 13-17.5-103(1), C.R.S. 2012. The district court further concluded that Ankeney failed to
2 Citations to the electronic record are to the specific document and page number on the CD that was furnished by the Clerk of the Supreme Court. 4
state a claim upon which mandamus relief could be granted because Ankeney did not have a clear right to the deduction of good time in calculating his mandatory release date. See Order, CD at pp. 126-129. Ankeney sought review by the court of appeals. The court of appeals reversed and remanded after analyzing the mandamus claim. Noting that it lacked jurisdiction with respect to the habeas claim, the court of appeals specifically instructed the district court on remand to reconsider the habeas claim. See Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930, Aug. 22, 2013, CD at pp. 194-203. Shortly after the court of appeals decision, on August 28, 2013, Ankeney was granted discretionary parole. He agreed to the parole conditions, signed his Parole Agreement, and began serving his three year period of mandatory parole on August 28, 2013. See Parole Order, CD at p. 223. Later on October 11, 2013, counsel for Ankeney filed a Forthwith Motion for Hearing, requesting that the district court schedule a hearing regarding Ankeneys habeas corpus petition. See Forthwith Motion, CD at pp. 209-210. On November 14, 2013, the district court held a hearing. Acting upon the directives of the court 5
appeals, the district court granted habeas relief ordering that Ankeney had served both the incarceration and mandatory parole periods of his sentence and ordered his release and discharge from mandatory parole supervision. Order Granting Habeas Corpus Relief, CD at pp. 249-251. This direct appeal of the district courts ruling granting habeas relief followed. STATEMENT OF THE FACTS In January 2008, Ankeney, a former attorney, was delivered to the diagnostic unit of the CDOC, to serve the following sentence imposed by the district court in Larimer County in criminal case number 06CR1548: eight years for child abuse negligently cause serious bodily injury, a class four felony. The CDOC received additional mittimuses for Ankeney for the following sentences imposed by the district court in Arapahoe County in criminal case number 06CR125: two years jail, for third degree sexual assault, a class one misdemeanor; three years for stalking emotional distress, a class five felony. Id. at 5. The two- year jail sentence and three-year CDOC sentence were to run concurrent to each other and to the eight-year sentence imposed in 6
connection with 06CR1548. Id. Additionally, Ankeney was sentenced to 24 months of mandatory parole for the class 5 stalking felony. Id. Ankeneys discretionary parole eligibility date was calculated to occur November 9, 2010, and his mandatory release date was April 19, 2014. Ankeney was considered for early discretionary parole by the Colorado Board of Parole in hearings held August 30, 2010; August 29, 2011; August 6, 2012; and September 21, 2012. On each occasion the Parole Boards decision was to defer and reconsider in one year. On August 5, 2013, the Parole Board ordered Ankeneys parole to begin on his mandatory parole date of August 28, 2013. Upon release to parole, Ankeney began serving a three year period of mandatory parole as required by statute on his class 4 felony conviction, and as ordered by the sentencing court in Larimer case 06CR1548. SUMMARY OF ARGUMENT The unpublished decision of the Colorado Court of Appeals in Ankeney v. Raemisch et al., Case No. 12CA1930, Colorado Court of Appeals (Aug. 22, 2013) (unpublished) is in error. The court of appeals in Ankeney was mistaken in its analysis of the applicable statutes and 7
case law regarding the application of good time and earned time credits toward an inmates mandatory release date. In addition, after remand, the district court improperly discharged Ankeneys three year mandatory parole period without jurisdiction over the Colorado Parole Board. ARGUMENT I. The Court of Appeals erroneously concluded that good time should be credited toward an inmates mandatory release date.
A. Standard of review.
When the facts are not in dispute and a district court resolves a habeas petition based solely upon the district courts interpretation of the relevant statutes and case law, the district courts decision is subject to de novo review. See Colo. Dept. of Corrs., Parole Div. ex rel. Miller v. Madison, 85 P.3d 542, 544 (Colo. 2004). B. Overview. The Court of Appeals construction of Colorado law regarding the proper application of time credit is flawed. In Colorado, there are two 8
types of time credit that may be awarded to inmates: good time credit and earned time credit. Good time credits are awarded for good conduct in prisons, such as obeying rules; earned time credits may be awarded for substantial progress in rehabilitation or work programs. Rather v. Suthers, 973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S. 834 (1999); People v. McCreadie, 938 P.2d 528, 531 n.6 (Colo. 1997). 3
It is undisputed that Ankeney committed his crimes after 1993. See Mittimuses, CD at pp. 58-65. During his incarceration, according to Ankeney, he was awarded good time credit, which was applied to determine his parole eligibility date, the date that he first became eligible to be considered by the Parole Board for release to parole, at the Parole Boards discretion. However, good time credit was not applied toward the calculation of his mandatory release date, the date that the incarceration portion of his sentence concluded and on which he was to
3 Although Colorado statutes make an inmate eligible for good time and earned time credit, they do not confer any entitlement to earned time credits. Meyers v. Price, 842 P.2d 229, 231 (Colo. 1992) (acknowledging the CDOCs discretionary authority to award good time and earned time credits). This has been the law in Colorado even after the 1993 amendment to the relevant parole statutes. Verrier v. Colo. Dept of Corrs., 77 P.3d 875, 878 (Colo. App. 2003). 9
be released to serve the mandatory parole period applicable to his sentence. 4
This was appropriate pursuant C.R.S. 17-22.5-403(1), which states that any person sentenced for a class 2 through class 6 felony, or any unclassified felony, shall be eligible for parole after such person has served fifty percent of the sentence imposed upon such person, less any time authorized for earned time granted pursuant to section 17- 22.5-405. C.R.S. 17-22.5-403(1) (emphasis added). On its face, 17- 22.5-403(1) applies to an inmates eligibility date for discretionary parole, not an inmates mandatory release date. The court of appeals erroneously concluded that Ankeney was entitled to have the good time credit that he had accrued applied his mandatory release date. As delineated below, the reasoning of that decision is flawed. Ankeney was not entitled to have good time credit applied to his mandatory release date, and he was not entitled to immediate release.
4 As noted above, Ankeney was released on discretionary parole prior to the expiration of the incarceration portion of his sentence. 10
C. Changes in Colorados statutory parole schemes over time.
To understand the manner in which good time credit is applied toward the calculation of the date upon which a prisoner becomes eligible for release to parole at the discretion of the Parole Board, in contrast to the date than a prisoner has a right to release from incarceration independent of the decision of the Parole Board, it is helpful to review the significant changes in the statutory parole scheme since the 1970s. See Thiret v. Kautzky, 792 P.2d 801, 804-805 (Colo. 1990). The handling of sentences to incarceration and parole has undergone several major shifts since 1979, due to statutory enactments by the General Assembly, which have impacted the manner in which good time credits and earned time credits are applied to an inmates sentence. Id. Three of these major shifts were explained and discussed by the Colorado Supreme Court in Thiret v. Kautzky. Id. Prior to 1979, prisoners received indeterminate sentences, and release to parole was entirely at the discretion of the Parole Board. Id. at 804. Under this system, good time credits merely determined the 11
date on which the inmate became eligible to be considered for release to parole, at the discretion of the Parole Board. Id. Then, in 1979, the legislature adopted new determinate sentencing laws, that departed from the previous discretionary parole system, and, in effect, adopted a system of mandatory parole. Id. The effect of this legislation, when taken as a whole, was to remove discretion from the Parole Board over the decision to release a prisoner to parole, and to tie release to parole to the accumulation of time served, earned time credits, and good time credits. Id. Then, in 1985, the General Assembly again enacted legislation affecting parole. Pursuant to this legislation, the General Assembly once again granted the Parole Board discretion to grant or deny parole prior to the expiration of a prisoners sentence. Id. at 805. As a result, for prisoners serving sentences for crimes committed after July 1, 1985, good time credit only applies to determine the date upon which they become eligible for release to parole, at the Parole Boards discretion. Id. 12
After explaining the statutory shifts regarding the handling of parole, this Court in Thiret identified the following categories and the application of good time credits as follows: Thus, in Colorado, with respect to the statutory scheme governing parole, we have three general classes of persons now serving sentences in our prisons: 1. Those serving sentences for crimes committed prior to July 1, 1979. 2. Those serving sentences for crimes committed on or after July 1, 1979 but before July 1, 1985. 3. Those serving sentences for crimes committed on or after July 1, 1985. Upon accruing sufficient credits to become eligible for parole, persons fitting under the first and third categories may be granted or denied parole at the discretion of the Parole Board. Good time and earned time credits earned by an inmate towards his release, for persons coming under these categories, merely establish the date of parole eligibility. A person fitting under the second category, however, must be paroled upon reaching the parole date as determined by deducting vested good time and earned time credits from the persons sentence. Id. at 805 (emphasis added). As a result, under Thiret, prisoners like Ankeney who are serving sentences for crimes committed after July 1, 13
1985, (the third category) are only entitled to have good time credit applied toward their parole eligibility dates. In discussing these different approaches to the handling of parole in Thiret, this Court utilized descriptive labels regarding the differing parole schemes, including what it referred to as discretionary parole and mandatory parole. Id. at 804-805. However, since this Court issued its decision in Thiret, statutory sentencing laws were again amended in 1993. The General Assembly created a new sentencing scheme, such that for most felony offenses (Felony 2 through Felony 6), there is both an incarceration period as well as a pre-determined period of mandatory parole that also applies to those felony sentences. See People v. Norton, 63 P.3d 339, 343 (Colo. 2003). The 1993 changes to the law continue to afford the Parole Board the discretion to release inmates to parole prior to completing the entire term of the incarceration portions of their sentences, which is consistent with the 1985 amendments returning discretion over release to parole prior to completion of the incarceration portion of the sentence to the Parole Board; however, the length of term of parole to be served is set by 14
statute and correlated to the level of felony. Id. Accordingly, the Parole Board retains the discretion to release a prisoner before the natural expiration of the incarceration portion of his sentence, or to decline to release a prisoner until the expiration of the prisoners term of incarceration. In that event, when the prisoner finishes serving the incarceration portion of his sentence, the prisoner is released to serve the mandatory period of parole applicable to his sentence, as set forth by the 1993 statutory mandate. Id. In this way, the General Assembly kept the discretion afforded to the Parole Board pursuant to the statutory amendments of 1985, but standardized the length of the parole applicable to a particular sentence. However, this was not a return to the mandatory parole system discussed in Thiret (which was the parole system applicable to prisoners serving sentences for crimes committed between July 1, 1979, and July 1, 1985), because under that parole scheme, the Parole Board had no discretion regarding the date on which an inmate was released to parole. Thiret, 792 P.2d at 804. In contrast, even under the amendments made in 1993, the Parole Board still has the discretion to 15
release an inmate to parole prior to the expiration of the incarceration portion of his sentence. See Craig v. People, 986 P.2d 951, 959 (Colo. 1999). However, if the Parole Board declines to do so, the inmate must then serve a mandatory period of parole after completing the incarceration portion of his sentence. Id. As a result of these subsequent amendments, the terminology employed by the Court in Thiret regarding discretionary and mandatory parole can be confusing, and no longer adequately differentiates between all of the different parole schemes. Indeed, in a 2007 case, this Court expressly noted that [i]t is important to distinguish between mandatory parole as used in the sense that an offender must be released or placed on parole upon expiration of a sentence less good time and earned time deductions, see C.R.S. 16-11- 310 (repealed 1988); Thiret v. Kautzky, 792 P.2d 801, 804 & n.6, 805 (Colo. 1990); and mandatory period of parole meaning a period of parole that an offender must serve following his or her discharge from imprisonment, see C.R.S. 18-1-105(1)(a)(V), 6 C.R.S. (1998). Badger v. Suthers, 985 P.2d 1042, 1043 (Colo. 1999). 16
Nevertheless, this Court has repeatedly held that, for all crimes committed before July 1, 1979, and after July 1, 1985, good time credits are only relevant in determining the parole eligibility date and are not to be used to determine the date that an inmate is entitled to release. Bynum v. Kautzky, 784 P.2d 735, 738-39 (Colo. 1989) (Applying 17- 22.5-301 (2), for crimes committed between July 1, 1981 and July 1, 1985); Jones v. Martinez, 799 P.2d 385, 387-88 (Colo. 1990) (same); Thorson v. Colorado Dept. of Corrs., 801 P.2d 540, 541 (Colo. 1990) (same); Wiedemer v. People, 784 P.2d 739, 740 (Colo. 1989) (same); Renneke v. Kautzky, 782 P.2d 343, 344 (Colo. 1989) (Applying 17-22.5- 301 (3) for crimes committed on or after July 1, 1985); Meyers v. Price, 842 P.2d 229, 231-32 (Colo. 1992) (same). As explained by the Court, save for the exception of prisoners falling into the second category identified in Thiret (those sentenced for crimes occurring between July 1, 1979, and July 1, 1985), good time and earned time credits do not constitute service of sentence, but only serve the purpose of determining an inmates parole eligibility date. People v. Watson, 892 P.2d 388, 390 (Colo. App. 1994), cert. denied (Colo. 1995) (Applying 17-22.5-301 (3), 17
C.R.S.). Any other interpretation would render the parole statutes meaningless because an inmate would be already entitled to discharge when he is eligible for discretionary parole. Bynum v. Kautzky, 784 P.2d at 738-39. See also, People v. Grenemyer, 827 P.2d 603, 606-08 (Colo. App. 1992) (Applying cases cited above to all crimes committed on or after July 1, 1979 and rejecting ex post facto and equal protection challenges). 5
5 Section 16-11-310, C.R.S., was repealed in 1988. 1988 Colo. Sess. Laws, p. 715. In addition, the Colorado Supreme Court has held that the statute, when construed in conjunction with the parole eligibility statutes, was merely intended to apply good time credits to the parole eligibility date rather than the discharge date. Bynum v. Kautzky, 784 P.2d at 737-39. The Colorado Supreme Court has also held that, to the extent 310s provisions appeared to imply that good time credits could be applied to the calculation of the discharge date, the enactment of 17-22.5-301 (3), C.R.S. in 1985 superseded that statute. Renneke v. Kautzky, 782 P.2d at 344-45. Section 17-22.5-402, which addresses discharge from custody, states, Notwithstanding subsection (1) of this section, the full term for which an inmate is sentenced shall be reduced by any earned time granted pursuant to section 17-22.5-405, except as provided in section 17-22.5-403(3) and (3.5). 17-22.5-402(2). Pursuant to the language of this statute, if the CDOC grants earned time, the earned time that it grants to an inmate should be deducted from that inmates sentence. The omission of the term good time from this statutory provision further indicates that the legislature does not intend good time credit to be deducted from the mandatory release date. 18
In a recent published decision, Nowak v. Suthers et al., 320 P.3d 340 (Colo. 2014), this Court emphasized that the Parole Board has the discretion to grant or deny an inmate release to parole on their parole eligibility date. Nowak was an inmate who was serving sentences for felonies committed in 2003 and 2006. The majority of the issues that the Nowak decision addresses issues that are not germane to this case. However, this Court emphasized the point that the Parole Board still has the discretion to grant or deny parole to an inmate before the expiration of their sentence, on the inmates parole eligibility date. At the end of the Nowak decision, on p. 38, the Court stated: After the [parole eligibility date] is calculated, the parole board has the ultimate discretion to grant or deny parole based on the totality of the circumstances, including but not limited to the factors set forth in section 17-22.5-404(4), C.R.S. (2013)such as the actuarial risk of re-offense, the offender's institutional conduct, the adequacy of the offender's parole plan, aggravating or mitigating factors from the criminal case, and whether the offender has previously absconded or escaped, or attempted to do so, while on community supervision.
Indeed, there are several statutory provisions that remain in effect currently that discuss how the Parole Board should exercise its 19
discretion C.R.S. 17-22.5-404(4) discusses factors for the Parole Board to consider in exercising its discretion. C.R.S. 17-22.5-403, 17-22.5- 404(7)(a) discusses how frequently the Parole Board should consider inmates for release to discretionary parole if they chose to deny the individual parole, on annual and triennial bases. Application of good time to an inmates discharge date renders these statutes meaningless, because the offender is eligible for release on the same date as he is eligible for discretionary parole. In addition, the federal courts that have applied Colorado law regarding the application of good time credit have also determined that except for individuals who are serving sentences for crimes committed between July 1, 1979, and July 1, 1985, good time credits only apply toward the date on which a prisoner becomes eligible for release to discretionary parole. In a more recent decision that was decided long after the 1993 amendments, the Tenth Circuit, applying Colorado law, held that good time credits do not count toward sentence reduction, but only toward ones parole eligibility date. Lusero v. Welt, 223 Fed. Appx 780, 784 (10th Cir. 2007). Thus, [a prisoners] loss of good time credits 20
[does] not inevitably increase[ ] the duration of his sentence, and accordingly does not give rise to a right to due process. Lusero, 223 Fed. Appx at 784 (quoting Klein v. Coblentz, No. 96-1289, 1997 WL 767538, at *4; 1997 U.S. App. LEXIS 32757, (10th Cir. Nov. 19, 1997)). See also Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo. Mar. 3, 2011) (In Colorado, good time credits generally do not result in a mandatory reduction in sentence; rather, they affect only a prisoners parole eligibility date, i.e., the date upon which the parole board can make its discretionary determination as to a prisoners release on parole.). Thus, the applicable published case law consistently holds that good time credit applies only toward the calculation of the date that an inmate is parole eligible the date that he is eligible for consideration to release to discretionary parole. Good time credit does not constitute service of ones sentence, and it should not be applied toward the date that an inmate is entitled to release, the only exception being those prisoners serving sentences for crimes committed between July 1, 1979, and July 1, 1985. 21
D. Earned time credit is applied to an inmates mandatory release date, but good time credit is not. There may be some confusion as to the application of time credits toward parole eligibility dates and mandatory release dates caused by statements in the case law that both good time and earned time credits only apply to an inmates parole eligibility date. Though the Colorado Supreme Court stated in 1992 in Meyers v. Price that both good time and earned time serve only to determine an inmates parole eligibility date, since at least 1995 the Colorado General Assembly has amended the statutes concerning earned time to clarify the legislatures intent that earned time be deducted from an inmates sentence. The General Assembly is presumed cognizant of judicial interpretations of statutes. When the statute is subsequently amended, it is presumed that the General Assembly was aware of the current case law and that the Legislature intended to change the law. People v. McCullough, 6 P.3d 774, 778 (Colo. 2000). This presumption can be overcome by evidence from the legislative history showing that the General Assembly merely intended to clarify an ambiguity contained in the statute. Academy of 22
Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456, 464 (Colo. 2001). In 1995, the legislature amended subsection 5 of C.R.S. 17-22.5- 405 to provide that inmates who were sentenced for non-violent felonies after July 1, 1993, shall be eligible for earned time credit while on parole, though such inmates are not eligible for earned time if they are re-incarcerated following the revocation of their parole. See Session Laws of Colorado, First Regular Session 1995, C.R.S. 17-22.5-405(5). Time served on parole is, by definition, time served after the parole eligibility date has already passed. If earned time were to continue to only be applied to determine the parole eligibility date, as the court held in Meyers v. Price, then the amendment making non-violent parolees eligible for earned time credit would be meaningless. Their parole eligibility dates have, by definition, already come and gone, and any additional earned time granted to them while they are serving parole would be moot if earned time only served to calculate the parole eligibility date. 23
Any lingering doubt as to the legislatures intent was removed in 2009, when the legislature again amended C.R.S. 17-22.5-405. In 2009, the legislature added three subsections to this section. Pursuant to newly added subsection 6, the parole board and the time computation office of the CDOC are required to schedule earned release time for inmates convicted of Class 4 and 5 felonies up to sixty days prior to the mandatory release date and for inmates convicted of class 6 felonies up to thirty days prior to the mandatory release date for inmates who meet certain criteria. C.R.S. 17-22.5-405(6) (emphasis added). As explained above, the parole eligibility date is the date on which an inmate becomes eligible to be released to discretionary parole; the mandatory release date is the date on which an inmate has completed serving the incarceration portion of his sentence if the inmate has not previously been released to parole. People v. Luther, 58 P.3d 1013, 1017 (Colo. 2002) (In addressing the mandatory period of parole [under the 1993 amendments], the General Assembly clearly stated that the parole board maintains exclusive authority to grant parole.). The mandatory release date, as a rule, occurs long after the parole eligibility date. See 24
id. As with awarding parolees earned time, it makes no sense to require the CDOC to schedule an earned time review 60 to 30 days before the mandatory release date if earned time serves only to determine the parole eligibility date, which has already come and gone. As a result, the portion of the Courts holding in Meyers v. Price stating that earned time only serves to determine an inmates parole eligibility date has been abrogated by the amendments to C.R.S. 17- 22.5-405. However, the language of these amendments to these statutes does not abrogate the Courts holding as to the proper application of good time credit. Therefore, the cases holding that good time credit should be applied toward an inmates parole eligibility date remain good law. E. The error in the Ankeney decision. The division of the court of appeals in Ankeney was mistaken in its analysis of the applicable statutes and case law regarding the application of good time and earned time credits toward an inmates mandatory release date. In the Ankeney decision, the court of appeals interpreted the decision in Thiret v. Kautzky so as to mean that the 25
application of good time credits is determined by whether an inmate is serving a sentence subject to a discretionary parole scheme or a mandatory parole scheme. Ankeney, at 6-7. The court of appeals collapsed the three categories of prisoners that this Court identified in Thiret into these two categories, apparently characterizing the first and third categories identified in Thiret (prisoners serving sentences for crimes committed before July 1, 1979 and after July 1, 1985) as being discretionary parole schemes, and characterizing the second category identified in Thiret (prisoners serving sentences for crimes committed between July 1, 1979 and July 1, 1985) as being a mandatory parole scheme. Id. The court of appeals then concluded that prisoners sentenced after the 1993 statutory amendments, who receive both an incarceration portion of their sentence and a period of mandatory parole, fall within a mandatory parole scheme. Id. at 8. Therefore, according to the court of appeals, good time credit must be applied toward the date that Ankeney must be released to serve his mandatory parole. Id. at 9. 26
The court of appeals opinion in Ankeney is flawed. The reasoning of the court of appeals appears to have been entirely based on its determination that all sentencing schemes fall into one of two categories, either discretionary parole schemes or mandatory parole schemes. 6 Further, significantly, the court of appeals erroneously determined that the 1993 amendments reinstituted mandatory parole, and determined that for this reason, good time credit must be applied toward an inmates release date, under the holding in Thiret. Ankeney, at 9. However, the court of appeals was incorrect that the 1993 amendments reinstated the mandatory parole scheme discussed in Thiret that applies to prisoners sentenced between July 1, 1979, and July 1, 1985. As noted above, the labels mandatory parole and discretionary parole utilized by the Colorado Supreme Court in Thiret no longer accurately label all of the differing parole schemes enacted by the General Assembly since the late 1970s. The 1993 amendments
6 In quoting from the Thiret decision, the court of appeals replaced the Colorado Supreme Courts use of the terms first category, second category, and third category with the terms discretionary parole scheme and mandatory parole scheme. Ankeney, at 7. 27
created a parole scheme that is different and distinct in critical respects from the mandatory parole scheme that governs sentences for crimes committed between July 1, 1979, and July 1, 1985. As the Colorado Supreme Court stated, [i]t is important to distinguish between mandatory parole as used in the sense that an offender must be released or placed on parole upon expiration of a sentence less good time and earned time deductions, see C.R.S. 16-11-310 (repealed 1988); Thiret v. Kautzky, 792 P.2d 801, 804 & n.6, 805 (Colo. 1990); and mandatory period of parole meaning a period of parole that an offender must serve following his or her discharge from imprisonment, see 18-1- 105(1)(a)(V), 6 C.R.S. (1998). Badger v. Suthers, 985 P.2d at 1043 n. 1. In reaching its decision in Ankeney, the court of appeals failed to make this distinction, and characterized the 1993 amendments as reinstating the prior mandatory parole scheme, which they did not. Under the 1993 amendments, the Parole Board still retains the discretion granted to it pursuant to the 1985 amendments to release an inmate to parole prior to the expiration of his sentence. See People v. Norton, 63 P.3d at 343 (explaining that the 1993 amendments created a 28
period of mandatory parole that begins when the incarceration portion of a sentence ends, either by its natural termination or as a result of an early release decision by the parole board.) (emphasis added); People v. Luther, 58 P.3d at 1017 (In addressing the mandatory period of parole [under the 1993 amendments], the General Assembly clearly stated that the parole board maintains exclusive authority to grant parole.). However, the mandatory parole scheme discussed in Thiret -- the only parole scheme under which good time credits apply to determine the date a prisoner is entitled to release to parole -- divested the Parole Board of any discretion to release an inmate to parole. See Thiret, 792 P.2d at 804. Under that scheme, the date upon which a prisoner is entitled to release to parole is determined purely by a mathematical equation. Id. This is clearly not the case under the 1993 amendments. People v. Luther, 58 P.3d at 1017. Further, the length of the parole to be served by a prisoner sentenced under the mandatory parole scheme described by Thiret varied depending upon the length of the prisoners sentence and how much time had not yet been served. See Norton, 63 P.2d at 334. The 29
mandatory aspect of this sentencing scheme referred to the fact that the Parole Board no longer had the discretion to determine if and when a prisoner would be released to parole. See thiret 792 P. 2d at 804. In contrast, under the 1993 amendments, the Parole Board still retains the discretion to determine whether an inmate should be released to parole prior to serving the entire incarceration portion of his sentence. People v. Luther, 58 P.3d at 1017. However, under the 1993 amendments, the length of that parole is predetermined based upon the level of Felony, and, if the Parole Board exercises its discretion not to release a prisoner before the incarceration portion of his sentence naturally expires, the prisoner must then also serve the statutory period of mandatory parole. People v. Norton, 63 P.3d at 343. As a result, the term mandatory applies to very different things in each of these two parole schemes, and the 1993 amendments were not at all a reinstatement of the mandatory parole scheme described in Thiret. Because the 1993 amendments continue to afford the Parole Board the discretion to determine whether an inmate should be released to parole prior to serving the full term of his incarceration 30
sentence, to the extent that an analogy can be drawn to the previous parole schemes identified by the Colorado Supreme Court in Thiret, the 1993 amendments are much more akin to the two discretionary parole schemes outlined in that decision, under which good time credits only apply to determine ones parole eligibility date. Indeed, because prisoners remain eligible for release to parole at the discretion of the Parole Board, prior to the natural expirations of the incarceration portions of their sentences, it makes sense to apply good time credits only toward ones parole eligibility date, but not the mandatory release date, so as to allow there to be distinction between the two. 7
7 The Respondents-Appellants also note that the portions of the statute regarding awards of good time credit to prisoners sentenced for crimes committed after July 1, 1979, states that though good time credits vest for persons sentenced for crimes committed between July 1, 1981, and July 1, 1985, good time credits do not vest for persons serving sentences for crimes committed on or after July 1, 1985. C.R.S. 17-22.5-301(2) and (3). The significance of this was discussed by the Court in Renneke as part of the basis upon which it determined that good time credit applies to ones parole eligibility date. See Renneke v. Kautzky, 782 P.2d at 344-345. The 1993 amendments did not alter the provisions of subsection (3), regarding awards of good time credits for persons serving sentences for crimes committed on or after July 1, 1985, and therefore the case law holding that good time credit should only be applied toward parole eligibility dates remains applicable. 31
Therefore, the Respondent Appellants respectfully submit that the division that decided the unpublished Ankeney decision misread and misapplied this Courts decision in Thiret, and was mistaken in its determination as to the application of good time credits. Moreover, after the Ankeney decision was released, multiple offenders citing the unpublished Ankeney decision, have filed similar habeas corpus petitions. Every district court receiving the post Ankeney filings has expressly refused to follow the flawed analysis in the unpublished Ankeney decision. (See Exhibit A, Order in Wallin v. Raemisch, Crowley District Court case no. 14cv2; Exhibit B, Order in Cowand v. Raemisch, Fremont District Court case no. 14cv10; Exhibit C, Order in Sumpter v. Raemisch, Fremont District Court case no. 14cv8; Exhibit D, Order in Dixon v. Archuleta, Fremont District Court case no. 14cv43 ; Exhibit E, Order in Crawford v. Archuleta, Fremont District Court case no. 14cv36; Exhibit F, Order in Lovato v. Clements, Fremont District Court case no. 14cv23; Exhibit G, Wu v. Executive Director, Fremont District 32
Court case no. 14cv24). 8 Accordingly, the Repsondents-Appellants submit that the Colorado Court of Appeals decision in Ankeney v. Raemisch et al., Case No. 12CA1930, is contrary to statute and the published case law discussed above. II. The district court erred in concluding that it had jurisdiction to discharge Ankeneys three year mandatory parole after two months when the Parole Board was not a party to the proceedings. A. Standard of review. The issue of personal jurisdiction is reviewed de novo. In re Marriage of Malwitz, 99 P.3d 56, 59 (Colo. 2004). B. The district court lacked personal jurisdiction over the Parole Board to order the discharge Ankeneys three year mandatory parole after Ankeney had only served two months of mandatory parole.
Plaintiffs Complaint and Petition when originally filed, did not and could not, relate to the calculation of his discharge from mandatory
8 This Court can take judicial notice of all of these cases. See Hughes v. Jones, 3 P.2d 1074, 1076 (1931); Linker v. Linker, 470 P.2d 882, 887 (1970). See also, Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App. 1999) rehearing denied, and certiorari denied. (A court may take judicial notice of the contents of court records in a related proceeding). 33
parole. The subject of Plaintiffs Complaint and Habeas Corpus Petition regarded when he should be released from prison and when his mandatory parole should begin. After remand, on October 29, 2013, Ankeney filed an Amended Petition, seeking discharge of his mandatory parole. 9 However, he never named or served the Parole Board with any pleading. The parole board and CDOC are separate entities in the Executive Branch. People v. Gallegos, 975 P.2d 1135, 1138 (Colo. App. 1998), cert. granted, judgment affirmed without opinion (Colo. 2000) [summary affirmation due to 3-3 tie with J. Coats abstaining]. [The case also holds that the length of parole and parole revocation are to be determined by the statute designated by the Board rather than by CDOC time computation]. See also Cardiel v. Brittian, 833 P.2d 748, 754 (Colo. 1992) (If prisoner refuses to sign his parole agreement or
9 As noted above, each sentence for an offense committed on or after July 1, 1993, contains two separate and distinct components: An incarceration component and a post-incarceration mandatory parole component. People v. Luther, 58 P.3d at 1015. Because mandatory parole is a separate component of his sentence, there is no calculation of time credits for reduction of the mandatory parole period until Ankeney began serving that part of the sentence. 34
conditions, only the Board has authority to suspend or rescind his parole. The CDOC cannot disregard the parole order). Only the Parole Board has legal authority to terminate the mandatory parole portion of the sentence before its completion. There is no statute that grants the CDOC similar power to grant an early discharge. In this case, Ankeney never named or served the Parole Board as a respondent. After Ankeney was released from incarceration to mandatory parole, the Parole Board was Ankeneys custodian. Because the Parole Board was not named as a party to the proceedings, the district court had no jurisdiction over the Parole Board to order the discharge of Ankeneys mandatory parole. CONCLUSION For the reasons set forth above, the decision of the Colorado Court of Appeals in Ankeney v. Raemisch et al., Case No. 12CA1930; and the District Courts decision in 2012CV22, should be reversed.
35
JOHN W. SUTHERS Attorney General
/s/ James X. Quinn JAMES X. QUINN, 21729* First Assistant Attorney General Corrections Unit Civil Litigation and Employment Law Section Attorneys for Respondents- Appellants*Counsel of Record
CERTIFICATE OF SERVICE This is to certify that I have duly served the within Opening Brief upon all parties herein via ICCES on this 27 th
day of May, 2014, addressed as follows:
Marc B. Tull, Esq. P.O. Box 1935 Elisabeth, CO 80107 [email protected]