Aue v. Diesslin, 89SA287

• Decision Date: 10 September 1990
• Docket Number: No. 89SA287,89SA287
• Parties: Bret A. AUE, Petitioner-Appellant, v. Warren T. DIESSLIN, David Sanchez, and Rod Cozzetto, Respondents-Appellees.
• Court: Colorado Supreme Court

Page 436

798 P.2d 436

Bret A. AUE, Petitioner-Appellant, v. Warren T. DIESSLIN, David Sanchez, and Rod Cozzetto Respondents-Appellees.

No. 89SA287.

Supreme Court of Colorado En Banc.

Sept. 10, 1990.

Rehearing Denied Oct. 29, 1990.

David F. Vela, Colorado State Public Defender, Robin Desmond, Deputy State Public Defender, Denver, for petitioner-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert C. Ripple, Asst. Atty. Gen., Human Resources, Denver, for respondents-appellees.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal of a denial of a petition for a writ of habeas corpus. The petitioner, Bret A. Aue, brought this action in Chaffee County District Court, asking the court to order his release from the custody of the Colorado Department of Corrections (the Department). Aue argued that under the applicable parole provisions he was entitled to mandatory release on parole on April 9, 1989. The trial court dismissed his petition without a hearing, finding that he had stated no grounds entitling him to habeas corpus relief. We affirm.

I.

On July 21, 1986 Aue pled guilty to aggravated incest, section 18-6-302, 8B C.R.S. (1986), and sexual assault on a child, section 18-3-405, 8B C.R.S. (1986). The court sentenced Aue to seven years imprisonment on each count, to be served concurrently, and credited Aue with 187 days for presentence confinement. ¹ The Department projected Aue's parole release date as April 9, 1989. On January 18, 1989, however, the Colorado State Board of Parole (Parole Board) considered and denied his application for parole, deferring further consideration to January 1990. On March 15, 1989, Aue filed a petition for a writ of habeas corpus seeking release from the custody of the Department. The district court denied his petition and Aue took this appeal.

Aue argues that he was subject to "mandatory parole" on April 9, 1989, under section 18-1-105(1)(b)(I), 8B C.R.S. (1986), section 16-11-310, 8A C.R.S. (1986), section 17-22.5-301, 8A C.R.S. (1986), and section 17-22.5-302, 8A C.R.S. (1986). Aue argues that section 17-2-201(5)(a), 8A C.R.S. (1986), which provides for certain exceptions from the mandatory parole scheme, does not authorize discretionary parole for his convictions of aggravated incest and sexual assault on a child. However, we rejected this same argument in Thiret v. Kautzky, 792 P.2d 801 (Colo.1990). We held that parole is discretionary, not mandatory, for persons convicted of a sex offense as defined in section 16-13-202(5), 8A C.R.S. (1986). Because Aue's convictions are within that definition, Thiret is dispositive of Aue's claim that our parole statutes require his release.

II.

Aue further argues that even if this court construes the parole provisions as authorizing discretionary parole of persons sentenced for a sex offense, applying this interpretation of the statutes to him would be the equivalent of ex post facto legislation forbidden by Article I, Section 10 of the United States Constitution, and Article II, Section 11 of the Colorado Constitution, and would violate his right to due process. He also asserts that such interpretation violates his right of equal protection because other similarly situated prisoners were released under the Parole Board's prior interpretation of these statutes. He claims that, at the time of his guilty plea, the long-standing agency interpretation, contrary to the present position of the Parole Board, led him to believe that he would be eligible for mandatory parole. ² Before considering whether our decision in Thiret can be applied to Aue, a brief review of the principles governing "judicial ex post facto" is in order.

An ex post facto law is one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime, or makes it greater than it was, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). Accord Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); People v. Billips, 652 P.2d 1060 (Colo.1982). Further, a law is ex post facto if it "inflicts a greater punishment, than the law annexed to the crime, when committed." Id.

Judicial decisions normally are applied retrospectively, that is, "they apply to conduct that occurred before the decision was rendered." E.E.O.C. v. Vucitech, 842 F.2d 936, 941 (7th Cir.1988). Accord Marinez v. Industrial Comm'n, 746 P.2d 552 (Colo.1987). In some rare cases, however, retrospective application of a judicial decision has been held to violate ex post facto principles. Since the federal and state ex post facto clauses apply only to legislative acts, a finding of judicial ex post facto is based not on the ex post facto clause itself, but rather on due process principles. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964). In Bouie, the Court struck down the retrospective application of a South Carolina Supreme Court decision. The Court found that the interpretation given by the state supreme court to a South Carolina trespass statute was completely unanticipated and therefore the statute, so interpreted, could not be applied to the defendants because it did not give them "fair warning of the criminal prohibition under which [the defendants] now stand convicted...." Bouie, 378 U.S. at 361, 84 S.Ct. at 1706. ³

Several lower federal court decisions have considered arguments like those raised by Aue in circumstances analogous to the facts of the present case. In Lerner v. Gill, 751 F.2d 450 (1st Cir.), cert. denied, 472 U.S. 1010, 105 S.Ct. 2709, 86 L.Ed.2d 724 (1985), the court of appeals considered a judicial ex post facto claim by a Rhode Island habeas petitioner. In 1970, Lerner, the petitioner, was sentenced to two life terms for murder and ten years for conspiracy, all to be served consecutively. In 1973, the Rhode Island Attorney General advised the parole board that under the relevant parole statutes, persons sentenced to multiple sentences not imposed simultaneously were deemed to be serving concurrent sentences for parole eligibility purposes. In 1976, a new attorney general confirmed that this interpretation applied to Lerner and that he would be eligible for parole after ten years. In 1979, however, yet a third attorney general gave his interpretation of the relevant parole statutes, advising the parole board that a prisoner such as Lerner who had been sentenced to two consecutive life sentences had to serve ten years for each sentence, for a total of 20 years, before becoming eligible for parole. This interpretation of the parole statutes was confirmed by the Rhode Island Supreme Court in In re Advisory Opinion to the Governor, 421 A.2d 535 (R.I.1980).

Lerner argued in federal court that the changed interpretation of the effect of the Rhode Island parole provisions could not be applied retrospectively to him without offending ex post facto and due process principles. The court of appeals rejected Lerner's arguments holding:

While [the attorney general] construed the 1970 amendment in [the manner suggested by Lerner], his successor did not, and most significantly, the Supreme Court of Rhode Island has not. See R.I.Const.Amend. XII, § 1 (Supreme Court has final revisory jurisdiction over all questions of law). Before petitioner's case the question of the statute's meaning with respect to a prisoner serving consecutive life sentences had not been finally determined. While at first the Parole Board and the then Attorney General thought Lerner was eligible within ten years, they did so as a matter of construing the statute, not in exercise of any power of their own to legislate in such matters.

Lerner, 751 F.2d at 457. The court found that the Rhode Island court decision was foreseeable and rejected Lerner's argument that his lengthy reliance on the parole board's erroneous interpretation of the parole statutes precluded the application of the subsequent state supreme court interpretation to his case. The court cogently answered this argument:

It is a fact of life, unlikely soon to be altered, that new laws are often not challenged and finally interpreted until a number of years go by.

. . . . .

We would be most reluctant to hold that the due process clause of the Constitution took away from the State of Rhode Island the power to consider and apply its laws correctly in this situation. Only in rare circumstances have courts allowed the misconstructions of officials to stop the proper execution of state or federal law, and such cases have involved prejudice and harm beyond frustrated expectations.

Lerner, 751 F.2d at 459. See also Littlefield v. Caton, 856 F.2d 344 (1st Cir.1988) (court holds that Maine parole officials were not prohibited under ex post facto and due process principles from retrospectively applying decision of Maine Supreme Judicial Court invalidating liberalized parole credit scheme; Maine decision was "readily foreseeable"); Glenn v. Johnson, 761 F.2d 192 (4th Cir.1985) (court finds no ex post facto violation when North Carolina Parole Board on advice of attorney general changed its interpretation of relevant parole statutes in a manner which increased the minimum time the prisoner had to serve); Crowley v. Landon, 780 F.2d 440 (4th Cir.1985) (court finds no ex post facto violation when Virginia Supreme Court ordered reincarceration of defendant following its ruling that the trial court lacked jurisdiction to order defendant's release from prison; state supreme court had "simply articulated an existing rule of law which had been erroneously applied by a lower court"); Mileham v. Simmons, 588 F.2d 1279 (9th Cir.1979) (court finds no ex post facto violation when state supreme court rejected previous attorney general ruling that a...