Goetz v. Gunter, 90CA1770

• Decision Date: 23 April 1992
• Docket Number: No. 90CA1770,90CA1770
• Parties: Larry A. GOETZ, Petitioner-Appellant, v. Frank GUNTER, Executive Director, Department of Corrections; and Mark McKinna, Supervisor, Fremont Correctional Facility, Respondents-Appellees. . A
• Court: Colorado Court of Appeals

Page 1154

830 P.2d 1154

Larry A. GOETZ, Petitioner-Appellant, v. Frank GUNTER, Executive Director, Department of Corrections; and Mark McKinna, Supervisor, Fremont

Correctional Facility, Respondents-Appellees.

No. 90CA1770.

Colorado Court of Appeals,

Div. A.

April 23, 1992.

Larry A. Goetz, pro se.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul S. Sanzo, Asst. Atty. Gen., Denver, for respondents-appellees.

Opinion by Chief Judge STERNBERG.

Petitioner, Larry A. Goetz, was sentenced in 1976 for conspiracy to commit murder, and he was paroled in 1982. The state board of parole revoked his parole in September 1989, and he filed a petition for a writ of habeas corpus, claiming that he was denied due process of law and that the board lacked jurisdiction over him. Finding no error in the parole board's action, the court denied the petition, and petitioner appeals the district court ruling. Although we conclude that petitioner was not denied due process, we agree with his assertion that the parole board lacked jurisdiction to revoke his parole. Accordingly, we reverse the district court's denial of his petition and remand for vacation of his parole revocation pursuant to Crim.P. 35(c)(2)(VII).

As a preliminary matter, we note that, pursuant to § 13-4-102(1)(e), C.R.S. (1987 Repl.Vol. 6A), we referred this appeal to the supreme court, which ultimately concluded that petitioner had improperly postured his claim in the nature of habeas corpus and that this court had jurisdiction. See Turman v. Buckallew, 784 P.2d 774 (Colo.1989) (habeas corpus petition alleging unlawful parole revocation treated as motion for postconviction remedy under Crim.P. 35(c)(2)(VII) ).

Petitioner's parole was for a duration of five years. Less than three months before it was to expire, his parole officer filed a complaint alleging that petitioner had violated a condition of parole by driving under the influence of alcohol (the first complaint).

A parole revocation hearing scheduled for October 22, 1987, was continued at petitioner's request to permit him time to obtain counsel. The hearing was continued again in December, when the court refused to appoint counsel. Petitioner's parole expired on December 9, 1987, but the parole board did not discharge him from his sentence, claiming that under § 17-2-103(6)(c), C.R.S. (1991 Cum.Supp.), the filing of the complaint tolled the expiration date.

Between February and June of 1988, petitioner appeared at three more hearings. Each time they were continued, once at petitioner's request and at least once because the board wished to await the disposition of the DUI charge. When petitioner did not appear at a hearing in September, an arrest warrant was issued and a complaint was filed alleging violation of the parole condition requiring him to give notice of a change of address (the second complaint).

After petitioner's arrest in another state in June 1989 on charges unrelated to this case and his return to custody in Colorado, the parole board granted him two more continuances. Finally, at a hearing in September 1989, the board dismissed the first complaint; however, it revoked petitioner's parole for the violation alleged in the second complaint and remanded him to the Department of Corrections for the remainder of his original sentence.

Subsequently, petitioner was convicted of other charges and was sentenced to sixteen years, to run consecutively with his parole revocation sentence. In August 1990, he initiated this proceeding, contending that the revocation of his parole was unlawful. The court rejected that contention finding that because the first complaint tolled the expiration of his parole period, the parole board had jurisdiction to revoke his parole on the basis of the second complaint.

I.

Petitioner first contends that the delay resulting from the repeated continuances of his revocation hearing denied him due process. We disagree.

If a parole officer has reasonable grounds to believe that a condition of parole has been violated, the officer may either issue a summons requiring the parolee to appear before the parole board, or request the board to issue a warrant for his arrest. Section 17-2-103(3)(a), (b), C.R.S. (1986 Rep.Vol. 8A).

If the parolee is arrested, a revocation hearing must be held "within a reasonable time, not to exceed thirty days after the parolee was arrested," unless the board grants a delay for good cause. Section 17-2-103(7), C.R.S. (1986 Repl.Vol. 8A). However, this section limits only the period of time a suspected parole violator may be imprisoned while authorities investigate the alleged violation; it does not limit the time within which the board must act on the issue of revocation. Folks v. Patterson, 159 Colo. 403, 412 P.2d 214 (1966).

Although a parolee is not entitled to all of the federal constitutional procedures and safeguards guaranteed by the due process clause of the Fourteenth Amendment, see Hutchison v. Patterson, 267 F.Supp. 433 (D.Colo.1967), due process does require that a parolee be given a revocation hearing within a reasonable time. Hanahan v. Luther, 693 F.2d 629 (7th Cir.1982) cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1013 (1983). Reasonableness must be determined on a case-by-case basis, and among the factors to be considered is whether a delay is due in part to the parolee's request for postponement. Hanahan v. Luther, supra.

Here, the first complaint resulted in petitioner being summoned to appear before the parole board. Because he was not arrested or imprisoned, the thirty-day requirement of § 17-2-103, C.R.S. (1986 Repl.Vol. 8A) does not apply. The continuances of his revocation hearing during the ensuing year were in large part...