Vashone-Caruso v. Suthers, 00CA1561.

• Decision Date: 07 June 2001
• Docket Number: No. 00CA1561.,00CA1561.
• Parties: Ronald A. VASHONE-CARUSO, Plaintiff-Appellant, v. John SUTHERS, in his official capacity as the executive director of the Colorado Department of Corrections, Defendant-Appellee.
• Court: Colorado Court of Appeals

29 P.3d 339

Ronald A. VASHONE-CARUSO, Plaintiff-Appellant, v. John SUTHERS, in his official capacity as the executive director of the Colorado Department of Corrections, Defendant-Appellee.

No. 00CA1561.

Colorado Court of Appeals, Div. II.

June 7, 2001.

Ronald A. Vashone-Caruso, pro se.

Ken Salazar, Attorney General, James X. Quinn, Assistant Attorney General, Denver, CO, for Defendant-Appellee.

Opinion by Judge CASEBOLT.

In this C.R.C.P. 57 proceeding, plaintiff, Ronald A. Vashone-Caruso, appeals the trial court's declaratory judgment adopting the parole eligibility date calculations rendered by the time computation officer employed by defendant, John Suthers, the Executive Director of the Colorado Department of Corrections (DOC). We affirm in part, reverse in part, and remand with directions.

Plaintiff, who has been incarcerated in the DOC for over thirty years, sought a declaration that the DOC had miscalculated his parole eligibility date. Relying on the analysis of the DOC's time computation officer, the trial court initially dismissed the action.

Upon plaintiff's appeal of that dismissal, a division of this court concluded that the DOC erroneously had calculated applicable statutory credits and thus had overestimated the amount of statutory good time available to plaintiff. The division also held that the DOC improperly had denied plaintiff 206 days of presentence confinement credit and may have underestimated the amount of trusty time to which plaintiff was entitled. The division therefore remanded the cause to the trial court to determine plaintiff's earliest parole eligibility date. Vashone-Caruso v. Suthers, (Colo.App. No. 98CA1691, July 8, 1999)(not selected for official publication).

On remand, both parties submitted briefs, and the trial court conducted an informal hearing. Concluding that DOC's new computation was consistent with the division's opinion, the court determined that the earliest parole eligibility date for plaintiff was April 1, 2011. This appeal followed.

I.

Plaintiff first contends that the court erred in failing to require the DOC to reduce his composite sentence by fifty percent when calculating his earliest possible parole eligibility date. We disagree.

Section 17-22.5-201, C.R.S.2000, provides for subtraction of certain credits from an inmate's composite sentence to determine the earliest possible parole eligibility date. These credits are available to an offender sentenced for a crime committed before July 1, 1979. See Thiret v. Kautzky, 792 P.2d 801 (Colo.1990)

; Price v. Mills, 728 P.2d 715 (Colo.1986).

Section 17-22.5-403(1), C.R.S.2000, upon which plaintiff relies, generally provides for an inmate's parole eligibility after the inmate has served fifty percent of the sentence. However, that statute applies only to an offender sentenced for a crime committed on or after July 1, 1979. See Jones v. Martinez, 799 P.2d 385, 387 (Colo.1990)

("Part Four to section 17-22.5 . . . is applicable to all crimes committed after July 1, 1979").

Here, plaintiff committed his crimes before July 1, 1979. Thus, § 17-22.5-403 is not applicable to him.

II.

Plaintiff contends that the DOC has miscalculated his parole eligibility date based upon good time credit and thus the trial court erred in adopting its calculation. We agree that plaintiff's credit must be recalculated.

When computing the parole eligibility date for an inmate who has received several consecutive sentences imposed at different times, as here, the DOC must first aggregate the sentences. See § 17-22.5-101, C.R.S. 2000 (separate sentences to be construed as one sentence in determining parole eligibility date); People v. Broga, 750 P.2d 59 (Colo. 1988)(court aggregated consecutive sentences before deducting statutory credit).

The DOC then must deduct any presentence confinement credit from the inmate's minimum aggregated sentence to obtain a composite sentence. See Colo. Sess. Laws 1972, ch. 44, § 39-11-306 at 249; Godbold v. District Court, 623 P.2d 862 (Colo.1981); Menchetti v. Wilson, 43 Colo.App. 19, 597 P.2d 1054 (1979)(deduction for presentence confinement before, rather than after, computation of credits was consistent with statutes).

For crimes committed before July 1, 1979, the DOC must calculate an inmate's earliest possible parole eligibility date by subtracting various additional credits from the composite sentence. These credits consist of statutory good time under § 17-22.5-201(1), C.R.S. 2000, trusty time under § 17-22.5-201(2), C.R.S.2000, and meritorious time under § 17-22.5-201(3), C.R.S.2000. In calculating these credits, the DOC presumes an inmate will accrue the maximum allowable good time and trusty time credit. See Price v. Mills, supra. According to the DOC's brief, for parole eligibility computation purposes only, the DOC assumes a month is equal to 30 days.

The credit for statutory good time allows the following deductions in determining an inmate's earliest possible parole eligibility date:

A deduction of two months in each of the first two years, four months in each of the next two years, and five months in each of the remaining years of his term of confinement, and correspondingly for any part of the year if such term of confinement is for less than a year.

Section 17-22.5-201(1).

The division in plaintiff's previous appeal interpreted this statute to require that an inmate serve a complete year before receiving the applicable good time credit, reasoning that an inmate should only receive statutory good time credit based upon actual time served. Pursuant to such logic, an inmate would be entitled to 4 months of statutory good time credit after the first 2 years served, 8 months of credit after the next 2 years served, and 5 months of credit after each additional year served.

However, contrary to the previous division's interpretation, there is nothing in the text of § 17-22.5-201(1) to indicate that good time credit is to be given only after each year is served. Rather, the statute states that credits are to be projected for portions of each year of an inmate's sentence. Cf. People v. Bastardo, 725 P.2d 88 (Colo.App.1986)

(comparing the unrestricted language of good time credit statute with the limiting language of trusty time statute); People v. Incerto, 38 Colo.App. 390, 557 P.2d 1217 (1976)(same).

The chart included in § 17-22.5-201(1) makes it clear that the credits are to be allocated upon portions of years because, in projecting the time to be served, it deducts possible good time credits from an inmate's sentence, rather than from the actual time served. Further, the chart notes that the total time to be served, if full credits are earned and allowed, can be less than a full year:

Number of Good time Time to be served if yrs. of that may Total good time full credits are sentence be earned that may be earned earned and allowed 1st year 2 months 2 months 10 months 2nd year 2 months 4 months 1 year 8 months 3rd year 4 months 8 months 2 year 4 months 4th year 4 months 1 year 3 years 5th year 5 months 1 year 5 months 3 years 7 months 6th year 5 months 1 year 10 months 4 years 2 months 7th year 5 months 2 years 3 months 4 years 9 months 8th year 5 months 2 years 8 months 5 years 4 months 9th year 5 months 3 years 1 month 5 years 11 months 10th year 5 months 3 years 6 months 6 years 6 months

Section 17-22.5-201(1). Hence, we disagree with the previous division's statutory analysis.

Continuing the chart contained in § 17-22.5-201(1) to determine plaintiff's eligible good time credit would result in the following Number of Good time Time to be served if yrs. of that may Total good time full credits are sentence be earned that may be earned earned and allowed 20th year 5 months 7 years 8 months 12 years 4 months 50th year 5 months 20 years 2 months 29 years 10 months 90th year 5 months 36 years 10 months 53 years 2 months 91st year 5 months 37 years 3 months 53 years 9 months 92nd year 5 months 37 years 8 months 54 years 4 months 93rd year 5 months 38 years 1 month 54 years 11 months

Extrapolating from the chart, we can determine a simple algebraic formula to determine plaintiff's good time credit.

As the statute's text and chart demonstrate, an inmate is eligible for 5 months of good time out of every year (5/12 year's credit) of his or her sentence from the fifth year onward. Assuming an inmate accrued good time at this same rate for the first 4 years, he or she would be eligible for 20 months of good time credit. However, as the chart shows, an inmate does not accrue 5 months of good time for each of the first 4 years of the sentence. Rather, the inmate is eligible only for a total of 12 months of good time for the first 4 years. This means that, for the first 4 years of a sentence equal to or greater than 5 years, an inmate is eligible for 8 months' less good time than the inmate would have been eligible for if the credit accrued at a constant 5 months per year.

Thus, although an inmate sentenced to five or more years of imprisonment generally can accrue good time at a rate of 5/12 of a year each year, a subtraction must be made for those 8 months for the first 4 years, during which the rate of accrual was different. Hence, to calculate good time for an inmate sentenced to five or more years, the sentence is multiplied by 5/12, and then 8 months are subtracted (5/12 times sentence minus 2/3 year).

Applying those principles here, it is not disputed that plaintiff faces a minimum sentence of 94 years and a maximum sentence of life imprisonment. Plaintiff is entitled to presentence confinement credit of 1 year and 26 days. Accordingly, plaintiff's minimum composite sentence is 92 years, 11 months, and 4 days.

To compute the total statutory good time for which plaintiff is eligible, the following calculation is performed. First, using the DOC's assumption that one month equals 30 days, the composite sentence is turned into days. Thus, 92 years times...