Exec. Dir. of the Colo. Dep't of Corr. v. Fetzer

• Decision Date: 26 June 2017
• Docket Number: Supreme Court Case No. 16SC361
• Citation: 396 P.3d 1108
• Parties: EXECUTIVE DIRECTOR OF the COLORADO DEPARTMENT OF CORRECTIONS and Warden for the Buena Vista Correctional Facility, Petitioners, v. Raymond Lee FETZER, Respondent.
• Court: Colorado Supreme Court

396 P.3d 1108

EXECUTIVE DIRECTOR OF the COLORADO DEPARTMENT OF CORRECTIONS and Warden for the Buena Vista Correctional Facility, Petitioners,

v.Raymond Lee FETZER, Respondent.

Supreme Court Case No. 16SC361

Supreme Court of Colorado.

June 26, 2017

Attorneys for Petitioners: Cynthia H. Coffman, Attorney General, Nicole S. Gellar, Senior Assistant Attorney General, Denver, Colorado

Respondent Raymond Lee Fetzer, Pro Se Buena Vista, Colorado

En Banc

JUSTICE COATS delivered the Opinion of the Court.

¶1 The department of corrections petitioned for review of the court of appeals' judgment reversing an order of the district court that denied Fetzer's petition pursuant to C.R.C.P. 106(a)(2). See Fetzer v. Exec. Dir. of the Colo. Dep't of Corr. , 2016 COA 7M, ––– P.3d ––––, as modified on denial of reh'g (Apr. 7, 2016). Fetzer's petition sought an order compelling the recalculation of his parole eligibility date, asserting that the department's "governing sentence" method, which calculated his parole eligibility date solely on the basis of the longest of his concurrent sentences, violated the statutory requirement that his multiple sentences be treated as one continuous sentence. The court of appeals reversed and remanded for recalculation, reasoning both that, contrary to the department's understanding, the statutory continuous sentence requirement applies to concurrent as well as consecutive sentences and that the department's "governing sentence" method of calculation could not apply to Fetzer's sentences because they were all subject to the same statutory parole provisions.

¶2 Because the "governing sentence" theories that have previously been sanctioned by this court have served to determine the statutory parole and discharge provisions applicable to a single continuous sentence and the manner in which those provisions can be meaningfully applied to it, rather than as an alternative to the statutory continuous sentence requirement itself, the department erred in simply substituting Fetzer's longest sentence for the required continuous sentence. Because, however, Fetzer's multiple sentences are not all subject to the same statutory parole provisions, as indicated in the court of appeals' opinion, reference to a governing sentence, or some comparable means of determining the applicable incidents of his parole, may remain necessary to the calculation of Fetzer's parole eligibility date. The judgment of the court of appeals reversing the district court's order is therefore affirmed. Its remand order, directing the department to recalculate Fetzer's parole eligibility date in accordance with its opinion, however, is reversed, and the case is remanded with directions that it be returned to the district court for further proceedings.

I.

¶3 Raymond Fetzer, who was and remains in the custody of the Colorado Department of Corrections as the result of multiple convictions, filed a petition in the district court, pursuant to C.R.C.P. 106(a)(2), to compel the department to recalculate his eligibility for parole. As reflected in the pleadings, Fetzer has been convicted, over a period of years extending back to 1988, of aggravated robbery, first degree burglary, robbery of the elderly, possession of a weapon by a previous offender, introducing contraband, and three separate counts of aggravated robbery—menacing the victim. These convictions have resulted in three concurrent sentences of 20 years each, with an effective date of August 12, 1988; one sentence of 8 years, with an effective date of May 25, 1990, to be served concurrently with the previous sentences; one sentence of 18 months, with an effective date of November 25, 1991, to be served consecutively with all previous sentences; one sentence of 22 years, with an effective date of June 17, 1999, to be served concurrently with all previous sentences; and two sentences of 30 years each, with effective dates of March 14, 2000, to be served concurrently with each other and with all previous sentences.

¶4 Fetzer alleged that by designating one of his 30-year sentences, being his sentences with the longest incarceration effect, as the governing sentence, and computing his parole eligibility date solely on the basis of that sentence, the department failed to comply with a statutory requirement that all of his separate sentences be treated as a single continuous sentence. Fetzer further alleged that if the department had instead considered all of his convictions as one continuous sentence running from the date of his first sentence, August 12, 1988, and had calculated his parole eligibility date by allowing credits during each relevant time period according to the statutory provisions in effect at the time, he would have become eligible to be considered for parole several years earlier.

¶5 The department moved to dismiss on the grounds that the statutory continuous sentence requirement applies only to consecutive sentences and that the incidents of parole applicable to an inmate serving multiple concurrent sentences are to be determined according to the "governing sentence" method. By considering Fetzer's longest concurrent sentence as the "governing sentence," and not only applying the particular parole provisions applicable to that sentence but applying them as if that sentence were the only sentence currently being served by him, the department calculated that Fetzer will not become eligible for parole until June 2019, and that he will not reach his mandatory release date until August 2026.

¶6 The district court granted the department's motion and dismissed the petition. The court of appeals, however, reversed, concluding that the plain language of section 17-22.5-101 of the revised statutes, requiring as it does that all of an inmate's separate sentences be construed as one continuous sentence, applies to all separate sentences, whether ordered to be served concurrently or consecutively. Further, surveying this court's precedent, the intermediate appellate court concluded that the "governing sentence" method is applicable only to inmates whose various sentences are subject to conflicting parole provisions, and understanding all of Fetzer's sentences to be subject to the same parole provisions, it concluded that the "governing sentence" method cannot apply to them. It therefore remanded for the department to recalculate Fetzer's parole eligibility date in accordance with its opinion.

¶7 The department of corrections petitioned for a writ of certiorari.

II.

¶8 For purposes of administering a criminal convict's sentence, this jurisdiction has long required that his separate sentences be construed as one continuous sentence. See, e.g. , In re Packer , 18 Colo. 525, 33 P. 578, 580 (1893) (relying on "one continuous sentence" rule from 1876 parole statute as support for imposing consecutive sentences for five voluntary manslaughter convictions). Currently, section 17-22.5-101, C.R.S. (2016), imposes a seemingly clear command: "For the purposes of this article, when any inmate has been committed under several convictions with separate sentences, the department shall construe all sentences as one continuous sentence." Neither this statute nor any of its predecessors, however, has ever provided guidance concerning the eventuality of disparate statutory parole provisions otherwise applicable to the various sentences comprising the mandated continuous sentence. Largely as the result of a series of dramatic changes since the late 1970s in the nature and philosophy of criminal sentencing in this jurisdiction, including the treatment of parole supervision, this court has been forced on a number of occasions to review the practices of the department of corrections in administering the continuous sentence requirement.

¶9 Prior to 1979, criminal courts were required to sentence convicted felons to an indeterminate term with fixed minimum and maximum limits, leaving the parole board tremendous discretion within that range to determine whether, when, and for how long to release an inmate to parole. See Ankeney v. Raemisch , 2015 CO 14, ¶ 9, 344 P.3d 847, 849–50. In 1979, however, the legislature enacted what has been referred to as a "determinate sentencing system," in which a felony offender was sentenced to a specific term of years, with an additional statutorily mandated term of parole to be served upon discharge from incarceration. Id. ; Thiret v. Kautzky , 792 P.2d 801, 803–04 (Colo. 1990). In that particular sentencing scheme, the parole board lost all discretion concerning whether, when, and for how long to release an offender to parole. Thiret , 792 P.2d at 803–04. Importantly, when an inmate became "eligible" for parole under that framework, he was also entitled to release to serve the statutorily prescribed period of parole. Id.

¶10 In 1985, the legislature shifted its sentencing philosophy by enacting what has been referred to as a "modified determinate sentencing system," restoring much discretion to the parole board to determine whether, when, and for how long to release an otherwise eligible offender to parole, within a range extending from the date upon which he became eligible for parole until the date upon which he had fully discharged his sentence. See id. ; Renneke v. Kautzky , 782 P.2d 343, 346 (Colo. 1989). Finally, in 1993, the legislature fundamentally altered the sentencing system once more, this time leaving discretion with the parole board to determine whether and when to release an eligible offender to parole, any time before his release would be mandated, but imposing statutorily prescribed periods of parole for most classes of offenders, which parole terms then would become a separate component of the sentence, to be fully served whether the offender had already completed the full term of incarceration to which he was sentenced or not. Ankeney , ¶ 10, 344 P.3d at 850 ; People v. Norton , 63 P.3d 339, 343 (Colo. 2003). Each of these schemes reflects a different concept of parole,...