Meredith v. Zavaras, 97SA417

• Decision Date: 23 February 1998
• Docket Number: No. 97SA417,97SA417
• Citation: 954 P.2d 597
• Parties: David Alan MEREDITH, Petitioner, v. Aristedes ZAVARAS, Respondent.
• Court: Colorado Supreme Court

Page 597

954 P.2d 597

David Alan MEREDITH, Petitioner, v. Aristedes ZAVARAS, Respondent.

No. 97SA417.

Supreme Court of Colorado En Banc.

Feb. 23, 1998.

Rehearing Denied March 16, 1998.

David Alan Meredith, Pro Se

Gale A. Norton, Attorney General, Richard A. Westfall, Solicitor General, Martha Phillips Allbright, Chief Deputy Attorney General, Garth C. Lucero, Deputy Attorney General, Paul S. Sanzo, First Assistant Attorney General, Joseph Haughain, Assistant Attorney General, Civil Litigation Section, Denver, for Aristedes Zavaras, Executive Director of the Colorado Department of Corrections.

Justice MULLARKEY delivered the Opinion of the Court.

David Meredith, representing himself pro se, filed this original proceeding seeking a writ of mandamus to compel the respondent, Aristedes Zavaras (Zavaras), Executive Director of the Department of Corrections (the DOC), to comply with two orders of the Denver District Court (the Denver Court). Both orders directed the DOC to credit Meredith for 210 days presentence confinement. We issued a rule to show cause why Zavaras does not have to comply with the two orders. We now make the rule absolute and order Zavaras and the DOC to credit Meredith for 210 days presentence confinement.

I.

On November 4, 1987, Meredith pled guilty to second degree burglary in Adams County District Court (the Adams Court). The Adams Court sentenced Meredith to four years in prison and awarded him sixty-two days presentence confinement credit (the first sentence). ¹ Meredith was paroled on July 18, 1989.

Approximately three months later, on October 16, 1989, Meredith committed first degree aggravated motor vehicle theft. See § 18-4-409, 8B C.R.S. (1986 & 1987 Supp.). Following a jury trial, the Denver Court sentenced Meredith on June 9, 1990 to nine years in the custody of the DOC (the second sentence). Prior to being sentenced, Meredith had served 210 days in the Denver County jail. The Denver Court ordered that the second sentence run concurrently with any other sentences Meredith was serving and awarded Meredith the 210 days presentence confinement credit.

On February 11, 1993, Meredith filed a pro se motion in the Denver Court asserting that contrary to the Denver Court's mittimus, the DOC subsequently transferred the 210 days presentence confinement credit to the first sentence imposed by the Adams Court. In that motion, Meredith asserted that he had discharged the first sentence before the 210 days presentence confinement credit was applied to it and he requested that the Denver Court order the DOC to recredit the 210 days presentence confinement credit to his second sentence. The Denver Court denied Meredith's motion without a hearing.

On August 25, 1994, the court of appeals, in an unpublished opinion, reversed the Denver Court's ruling. See People v. Meredith, No. 93CA1082 (Colo.App.1994) (not selected for official publication). The court of appeals agreed with Meredith that the record did not demonstrate either whether Meredith's first sentence had been discharged, or if the first sentence had been discharged, when the discharge had occurred. Accordingly, the court of appeals held that Meredith was entitled to a hearing on the issue of whether the first sentence had been discharged and remanded the case to the Denver Court.

Despite the court of appeals' order remanding the case, the Denver Court did not set the case for a hearing. ² On May 28, 1997, almost three years after the court of appeals entered its remand order, Meredith filed another pro se motion in which he again requested a hearing to determine his presentence confinement credit. Upon receiving Meredith's motion, the Denver Court ordered the People to set the case for a hearing. On August 8, 1997, the Denver Court held the hearing and the People conceded that Meredith was entitled to the 210 days presentence confinement credit which the Denver Court originally awarded. In its written order dated August 11, 1997 (the August 11, 1997 Order), the Denver Court made the following findings of fact and conclusions of law:

I find that, in accordance with the sentencing judge's mittimus in this case, Defendant was indeed entitled to 210 days in presentence confinement credit against this sentence. I also find that DOC correctly awarded Defendant these 210 days of credit in its initial time computations. However, I also find that DOC transferred these credits to Defendant's burglary conviction [the first sentence], and that at the time of this transfer Defendant had already discharged his burglary sentence. Accordingly, I conclude that the transfer of these credits was erroneous, and not within DOC's authority.

The Denver Court ordered the DOC to recredit Meredith for the 210 days presentence confinement credit which the Denver Court originally ordered.

Subsequent to the August 11, 1997 Order, the People petitioned for a rehearing. In their motion for reconsideration, the People explained that counsel for the DOC, through a letter dated August 29, 1997 and accompanying synopsis explaining the DOC's position, informed the Denver District Attorney that the DOC believed the Denver Court had erred in the August 11, 1997 Order. The People attached the DOC's synopsis to their motion for reconsideration. In that synopsis, the DOC argued that the Denver Court erred when it ordered the DOC to apply the 210 days presentence confinement credit to the second sentence because Meredith was still on parole when he committed the second felony. The DOC asserted that section 16-11-306, 6 C.R.S. (1997), ³ precluded the Denver Court from applying the presentence confinement credit to the second sentence. The DOC also argued that the Denver Court lacked jurisdiction to rule that Meredith had discharged the first sentence imposed by the Adams Court.

In an order dated September 18, 1997 (the September 18, 1997 Order), the Denver Court denied the People's motion for reconsideration and ordered the DOC to comply immediately with the August 11, 1997 Order. The Denver Court explained that the People had had six weeks to prepare for the August 8, 1997 hearing and that the People had a full opportunity to present evidence and to argue whether Meredith had discharged his first sentence from the Adams Court when the Denver Court imposed the second sentence. ⁴ The Denver Court reiterated that, at the August 8, 1997 hearing, the Denver District Attorney conceded that the first sentence had been discharged and that Meredith was entitled to the 210 days presentence confinement credit the Denver Court originally awarded. The Denver Court explained:

The Department of Corrections is not a party to this case, and the Attorney General's Office is not counsel of record of any party. I understand and appreciate that the Department of Corrections and the Attorney General may have views and information about this issue, and I even understand they may have evidence indicating that when Defendant was sentenced in this case his Adams County burglary sentence may not in fact have been discharged. But it was incumbent upon the Denver District Attorney's Office to solicit those views, and to gather that evidence, in the six weeks it had to prepare for the August 8, 1997 hearing. It failed to do so, apparently failed to look into this matter at all, and instead confessed the issue. There is no explanation for this failure in the Motion for Reconsideration, and I am not inclined, especially under all the circumstances of this case, to reopen criminal issues [sic] which have been resolved after a hearing with notice to all parties, just because one arm of the executive branch has no idea what the other is doing.

The Denver Court also disagreed with the DOC's assertion that the Denver Court lacked jurisdiction to decide how much presentence confinement credit to award Meredith in the second sentence. On this point, the Denver Court highlighted the fact that the court of appeals remanded the case to the Denver Court expressly to make this determination. The People did not appeal either the August 11, 1997 Order or the September 18, 1997 Order.

On October 3, 1997, Zavaras filed in this court a petition for relief pursuant to C.A.R. 21. In his petition, Zavaras raised essentially the same arguments that counsel for the DOC made in the synopsis which the Denver District Attorney attached to its motion requesting the Denver Court to reconsider the August 11, 1997 Order. We denied Zavaras's petition for relief en banc on October 17, 1997. ⁵

Subsequent to our denial of Zavaras's petition, the DOC continued not to follow the Denver Court's orders. Once again, Meredith, acting pro se, attempted to force the DOC to comply with the Denver Court's orders by filing his own C.A.R. 21 petition in this court. In his petition, Meredith requested that we issue a writ of mandamus ordering the DOC to comply with the orders. We issued a rule to show cause why Zavaras, as Executive Director of the DOC, should not have to comply with the August 11, 1997 and September 18, 1997 Orders.

Meredith argues here, and the DOC acknowledges in its response to the rule to show cause, that had the DOC complied with the August 11, 1997 Order, Meredith would have been entitled to release from DOC custody on September 6, 1997 instead of April 9, 1998.

II.

A.

As an initial matter, we may issue a writ of mandamus to the DOC requiring the DOC to comply with a district court order. In our recent opinion of Bullard v. Department of Corrections, 949 P.2d 999 (Colo.1997), we issued a rule to show cause under C.A.R. 21 to review whether the defendant was entitled to a writ of mandamus ordering his discharge from the DOC. In Bullard, the Montrose County District Court (the Montrose Court) issued an order which declared that the defendant had served the sentence previously imposed by it. The Montrose Court's order directed the DOC to release the defendant. The defendant argued that the Montrose Court's...