Espinoza v. Tinsley
| Decision Date | 17 January 1966 |
| Docket Number | No. 21419,21419 |
| Citation | 409 P.2d 835,159 Colo. 62 |
| Parties | John Max ESPINOZA, Plaintiff in Error, v. Harry C. TINSLEY, Defendant in Error. |
| Court | Colorado Supreme Court |
Roger M. Breyfogle, Canon City, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Hohn E. Bush, Asst. Atty. Gen., Denver, for defendant in error.
Plaintiff in error will be referred to as petitioner, or by name, and defendant in error Tinsley, who was the warden of the Colorado State Penitentiary, will be referred to as the respondent.
This is the second time the issues herein involved have been before this court, each writ of error having been directed to an order of the district court, before whom three petitions were filed, which denied Espinoza's petition for writ of habeas corpus.
Petitioner's first petition was filed in the district court on March 15, 1963, and denied on April 4, 1963. On review this court reversed the judgment of the district court and remanded the cause with directions to issue the writ and proceed to a hearing on the merits. Espinoza v. People, 154 Colo. 347, 390 P.2d 941 (1964). Espinoza filed another petition, writ of habeas corpus issued as directed by this court, a return to the writ and answer to the return were filed, and hearing was had on the merits. On April 30, 1964, the district court discharged the writ. Motion for a new trial was filed and denied and Espinoza prosecutes this writ of error. Throughout the current proceedings, petitioner was represented by court-appointed counsel and permitted to prosecute his petition as an indigent person.
The undisputed facts, as developed from the testimony of the associate warden, the parole supervisor and the custodial officer of the penitentiary, the officer in charge of the medium security unit, a handwriting expert, the petitioner himself, and the exhibits admitted by the trial court, are as follows: Petitioner was convicted of the crime of burglary in the district court of the City and County of Denver and sentenced to a term of from six years to ten years in the state penitentiary, where he was received on March 27, 1959. At a time not specified, he had been sentenced by the Federal District Court in Denver to a term of three and one-half years in a federal penal institution, to run concurrently with the term imposed by the stat district court. A federal detainer had been placed against him, which was in the hands of a United States marshal.
On May 19, 1960, the governor of Colorado entered an order commuting petitioner's minimum sentence to two years, which would result in his release to the federal detainer on July 5, 1960. The maximum sentence was not affected. The warden recommended petitioner as a good parole risk at the time of the commutation order, but had definitely changed his mind at the time revocation of the parole was ordered. The governor did not actually grant a parole because such action is a prerogative of the State Parole Board.
At a meeting of the parole board on June 23, 1960, petitioner was paroled to the federal detainer as of July 4, 1960, so tha the could be released to the United States marshal on the following day. He signed a written 'Waiver of Extradition,' in which he stated, as a condition of his parole, that he waived extradition to the state of Colorado from any state in the Union and agreed that he would not contest any efforts to return him to Colorado. This was addressed to the Interstate Compact Administration. A similar document, denominated an 'Agreement to Return,' was signed by petitioner and filed with the State Parole Board. On July 4, 1960, he signed, at the office of this board at the penitentiary, a 'Parole Agreement' setting forth the instruction to be followed upon his return to Colorado after serving his federal sentence, to all of which instructions he agreed.
During the original proceedings, reviewed by this court, he had denied signing a 'Parole Agreement,' but at the later hearing the authenticity of this agreement was established by the testimony of a handwriting expert, and petitioner did not further dispute the question, apparently having abandoned his position concerning his signature.
The hearing before the trial court after remand from this tribunal revealed that after petitioner served the balance of the term imposed by the federal court he was granted a 'Conditional Release' on December 4, 1961. He was then returned to Colorado, still subject to the conditions imposed on him by his parole agreement, and remained free of custody under his parole.
The evidence also revealed that on May 29, 1962, petitioner purchased a 45-caliber gun in Denver. He also left the state of Colorado without permission of his parole officer and failed to make reports required, including reports of his changes of address. For these violations of the conditions of his parole, all specifically included in the parole agreement, on August 10, 1962, his parole was revoked and he was returned to the penitentiary. On October 1962 he was taken from the main institution to an area outside the prison walls, known as the medium security unit, from which he escaped on November 17, 1962. He was traced to Colorado Springs, wher he was found in jail charged with the larceny of an automobile. His excuse for his escape was that he intended to attempt a reconciliation with his wife, who was threatening divorce proceedings. He was returned to the...
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Johnson v. Riveland
...becomes eligible for parole. Colo.Rev.Stat. Secs. 17-2-201(4)(a), 17-2-204(1), Sec. 17-22.5-104(1) (1986); see Espinoza v. Tinsley, 159 Colo. 62, 409 P.2d 835, 838 (1966). As a result, the only effect of the district court's award of credit against the minimum term would be to expedite John......
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People v. Lucero
...17-1-206 and 207, C.R.S.1973." People v. Salvador, 189 Colo. 181, 183, 539 P.2d 1273, 1275 (1975); accord Espinoza v. Tinsley, 159 Colo. 62, 67, 409 P.2d 835, 838 (1966) (a parolee is "in the constructive custody of the state"); Johnson v. Tinsley, 157 Colo. 539, 544, 404 P.2d 159, 161 A pa......