Gasper v. Gunter

• Decision Date: 10 May 1993
• Docket Number: No. 92SA209,92SA209
• Parties: Randy GASPER, Petitioner-Appellee, v. Frank GUNTER, Executive Director, Colorado Department of Corrections, Respondent-Appellant.
• Court: Colorado Supreme Court

Page 912

851 P.2d 912

Randy GASPER, Petitioner-Appellee, v. Frank GUNTER, Executive Director, Colorado Department of Corrections, Respondent-Appellant.

No. 92SA209.

Supreme Court of Colorado En Banc.

May 10, 1993.

Randy Gasper, pro se.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., John August Lizza, First Asst. Atty. Gen., Paul S. Sanzo, Sr. Asst. Atty. Gen., Denver, for respondent-appellant.

Justice SCOTT delivered the Opinion of the Court.

Petitioner-appellee Randy Gasper (Gasper) filed a petition for writ of habeas corpus with the district court seeking immediate discharge from the custody of the Colorado Department of Corrections (Department). In his petition, Gasper challenged the constitutionality of section 17-22.5-303(7), 8A C.R.S. (1992 Supp.), on the basis that it is an ex post facto law as applied to him. In accordance with the contested statute, which does not permit credit for time on parole if parole is subsequently revoked, the Department excluded the time Gasper had spent on parole in computing his discharge date from confinement, given that Gasper had violated the terms of his parole. The district court agreed with Gasper that section 17-22.5-303(7) is an ex post facto law, as applied, on the grounds that the statute had the effect of disadvantaging Gasper by increasing the duration of his jail sentence.

Respondent-appellant Frank Gunter, in his capacity as Executive Director of the Department, seeks review of the ruling of the district court. We have jurisdiction of his appeal pursuant to section 13-4-102(1)(e), 6A C.R.S. (1987). Gunter asserts first that section 17-22.5-303(7), as applied to Gasper, is not an ex post facto law because that provision was not applied retrospectively, but rather was applied prospectively, on Gasper's violation of the terms of his parole, which occurred well after the statute's effective date. Gunter further argues that the rescission of parole time did not increase Gasper's original sentence term, and therefore the application of section 17-22.5-303(7) does not inflict a greater punishment on Gasper than that allowed at the time of his sentencing. We agree with Gunter and hold that section 17-22.5-303(7) was applied prospectively to Gasper, inasmuch as it was Gasper's later parole violation which gave rise to the annulment of parole time that otherwise could be credited toward his sentence, and further, that the revocation of Gasper's parole time does not constitute additional punishment beyond that originally imposed by the sentencing court. Because section 17-22.5-303(7) as applied to Gasper is not an ex post facto law, we reverse.

I

On September 8, 1987, Randy Gasper was sentenced to serve four years and one day in the custody of the Department as a result of his conviction for the unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance, a class 5 felony, in violation of section 18-18-105(4)(d), 8B C.R.S. (1986). Gasper was initially incarcerated from September 8, 1987 to July 1, 1989, i.e., a total of 658 days in confinement. On July 1, 1989, Gasper was granted parole status, but on November 16, 1989, he violated the conditions of his parole, and consequently his parole was revoked. Gasper was reparoled on April 10, 1990, but he once again violated the terms of his parole, and on July 5, 1991, his parole was revoked for a second time.

The Department rescinded Gasper's parole time pursuant to section 17-22.5-303(7), which prohibits the crediting of time an inmate spends on parole if the inmate's parole is later revoked. The statute, made effective July 1, 1987, eleven days after Gasper committed his offense, but roughly two years prior to the commencement of his first parole, provides in relevant part:

Upon a determination that the conditions of parole have been violated in a parole revocation proceeding, the state board of parole shall continue the parole in effect, modify the conditions of parole if circumstances then shown to exist require such modifications, which circumstances shall be set forth in writing, or revoke the parole and order the return of the offender to a place of confinement designated by the executive director for a period of not more than five years. In computing the period of reincarceration, the time between the offender's release on parole and the revocation of such parole shall not be considered to be any part of the term of the sentence. In no event shall any period of reincarceration and sentence actually served exceed the sentence imposed pursuant to section 18-1-105, C.R.S.

§ 17-22.5-303(7), 8A C.R.S. (1992 Supp.) (emphasis added). Gunter maintained that because Gasper was paroled after the effective date of section 17-22.5-303(7), and because he violated the terms of his parole well after the effective date of the statute, Gasper was subject to its conditions. Thus, according to Gunter, upon the revocation of Gasper's parole, the interval of time Gasper had previously spent on parole should be disregarded by the Department in its computation of the date of his discharge from confinement.

On April 27, 1992, Gasper filed a petition for writ of habeas corpus with the district court, ¹ asserting that the Department incorrectly withheld credit for time he had spent on his first and second paroles, i.e., from July 1, 1989 to November 15, 1989 and from April 10, 1990 to July 4, 1991, respectively. Gasper argued that because he was entitled to credit of approximately thirteen months ² for time spent on parole prior to his parole revocations and had less than six months left to serve out his sentence, he was entitled to immediate release. Gasper based his argument on the grounds that the version of section 17-22.5-303(7) in effect on June 19, 1987, i.e., the day Gasper committed the offense which resulted in his incarceration, was controlling and as such, the crediting of time he had spent on parole was mandatory. Unlike the statute that was made effective on July 1, 1987, the earlier version did not contain the provision which disallows the crediting of parole time toward an inmate's sentence if the inmate's parole is subsequently revoked. ³

Gasper challenged the constitutionality of section 17-22.5-303(7) on the grounds that, as applied to him, it is an ex post facto law. ⁴ Gasper argued that the statute was applied retrospectively to him, and moreover, that its application effectively increased his punishment by extending the time he must spend in confinement. The district court agreed with Gasper, based on its application of the twofold test set out by our own court of appeals in In re R.B., 815 P.2d 999, 1001 (Colo.App.1991), a decision which held that if a statute applies to an event occurring before its enactment and if it disadvantages the offender affected by it, the statute is a constitutionally prohibited ex post facto law. The court concluded that the latter prong in In re R.B. was violated inasmuch as "the change in the law at issue here clearly has an even more disadvantaging effect than the one in [In re] R.B. because it has an effect on this petitioner's liberty interest." ⁵ The district court accordingly ordered that Gasper be credited with time served on parole against his sentence, and that he be immediately released from the Department. We disagree, and therefore reverse the ruling of the district court and vacate its order.

II

The resolution of this case requires that we undertake an analysis of the meaning and scope of the ex post facto clauses of the United States and Colorado Constitutions. We begin this analysis with a review of the purposes underlying prohibitions against and the characteristics intrinsic to ex post facto legislation.

A

The constitutional proscription against ex post facto legislation prohibits Congress and the states from enacting laws which "impose[ ] a punishment for an act which was not punishable at the time it was committed; or impose[ ] additional punishment to that then prescribed...." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866). In the context of ex post facto challenges to criminal or penal statutes, we have followed Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), in holding that "[t]wo critical elements must be present for a criminal statute to be stricken down as an ex post facto law: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." People v. Billips, 652 P.2d 1060, 1064 (Colo.1982) (citing Weaver, 450 U.S. at 29, 101 S.Ct. at 964); see also Lindsey v. State of Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937) (for a criminal or penal law to be ex post facto, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it).

The purpose underlying the proscription against ex post facto legislation has been attributed to the Framers' concern that legislative enactments provide "fair warning of their effect" in order that individuals may rely on the meaning and extent of the statutes until they have been formally and explicitly revised. ⁶ Weaver, 450 U.S. at 28-29, 101 S.Ct. at 963-64 (citing Dobbert v. Florida, 432 U.S. 282, 298, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977)). Thus, as is relevant here, the two defining characteristics of a prohibited ex post facto law: that it relates to conduct occurring before its effective date and that it inflicts additional punishment are intended to provide a reliable basis for ensuring that the Framers' intent be carried out, i.e., that persons are put on fair notice of the penalties which government may impose on those who violate the laws. See also People v. District Court, 834 P.2d 181 (Colo.1992) (Rovira, C.J., plurality opinion) (holding that where provisions of death penalty sta...