Nowak v. Attorney Gen. John W. Suthers

• Decision Date: 24 February 2014
• Docket Number: Supreme Court Case No. 11SA309
• Citation: 320 P.3d 340
• Parties: Jeffrey T. NOWAK, Petitioner–Appellee v. Attorney General John W. SUTHERS; Warden Pamela Plough, Colorado Territorial Correctional Facility; and Rick Raemisch, Executive Director of the Colorado Department of Corrections, Respondents–Appellants.
• Court: Colorado Supreme Court

320 P.3d 340

Jeffrey T. NOWAK, Petitioner–Appellee

v.Attorney General John W. SUTHERS; Warden Pamela Plough, Colorado Territorial Correctional Facility; and Rick Raemisch, Executive Director of the Colorado Department of Corrections, Respondents–Appellants.

Supreme Court Case No. 11SA309

Supreme Court of Colorado.

February 24, 2014

Appeal from the District Court, Fremont County District Court Case No. 11CV71, Honorable David M. Thorson, Judge

Jeffrey T. Nowak, pro se, Lake Zurich, Illinois.

Attorneys for Respondents–Appellants: John W. Suthers, Attorney General, Nicole S. Gellar, Assistant Attorney General, Denver, Colorado.

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 In this habeas corpus appeal, we consider whether section 17–22.5–101, C.R.S. (2013), requires the Colorado Department of Corrections (“DOC”) to construe an inmate's sentences as one continuous sentence in determining his parole eligibility date (“PED”), when the second sentence is not imposed until after the PED for the first sentence has passed, and when doing so would result in the inmate becoming parole eligible before serving at least 50% of the second sentence. To resolve this question, we evaluate for the first time the relationship between section 17–22.5–101 and section 17–22.5–403(1), C.R.S. (2013), of article 22.5, which governs “Inmate and Parole Time Computation.”

¶ 2 The district court held that basic rules of statutory construction—together with cases interpreting section 17–22.5–101—require DOC to construe all sentences as one continuous sentence when an inmate has been committed under several convictions with separate sentences, even when the inmate's PED for an antecedent sentence has passed before the imposition of a subsequent sentence.

¶ 3 On appeal, DOC argues that applying the one-continuous-sentence rule in calculating Nowak's PED violates section 17–22.5–403(1), which provides that an inmate in certain designated categories “shall be eligible for parole after such person has served fifty percent of the sentence imposed upon such person,” less applicable credits. DOC contends that “because Nowak had already reached his PED on his first sentence before receiving his subsequent consecutive sentence, his current PED should be calculated independently of the prior, original sentence to ensure that he serves at least 50% of the sentence imposed upon him.”

¶ 4 We agree with the district court. We hold that, for the purpose of computing an inmate's PED, section 17–22.5–101 requires DOC to construe all sentences as one continuous sentence when the inmate has been committed under several convictions with separate sentences, even when doing so results in the inmate becoming parole eligible before serving at least 50% of the second sentence. Accordingly, we affirm the district court's decision.

I. Facts and Procedural History

¶ 5 Jeffrey T. Nowak was convicted of two counts of aggravated motor vehicle theft and sentenced to eight years in prison. He began serving that sentence on May 13, 2003, which is the effective date of the sentence for parole eligibility purposes. DOC calculated Nowak's PED at 50% of his eight-year sentence, or July 3, 2006, after applying uncontroverted credits for presentence confinement and earned time.¹ Several months after reaching this PED, Nowak absconded from a halfway house while on temporary leave.

¶ 6 After being apprehended, Nowak was convicted of felony escape and sentenced to twelve years in prison, to run consecutively to his original eight-year sentence. He began serving the new sentence on July 13, 2007. Because Nowak had already reached his PED on the original sentence when he began serving the new sentence, DOC used July 13, 2007—rather than May 13, 2003—to calculate Nowak's new PED. The result was a PED in May 2012.

¶ 7 Acting pro se, Nowak filed a petition for writ of habeas corpus with the Fremont County District Court, arguing that DOC had erroneously calculated his PED and was unconstitutionally denying him the opportunity to be considered for parole. He contended that DOC should use the May 13, 2003 date to calculate his PED, under which he would be immediately eligible for parole. In response, DOC explained that it “ignore[d]” Nowak's 2003 conviction because the PED for that conviction “was already past” and was therefore irrelevant to its new PED calculation. DOC provided a revised, estimated PED of April 10, 2012, again based solely on Nowak's 2007 conviction.

¶ 8 At the hearing on the petition, DOC explained that it calculated Nowak's PED “as though his 2007 conviction[ ] [were] the only relevant conviction [ ].” DOC argued that it was required to “break out the two sentences and calculate the PED separately for each one” in order to give effect to section 17–22.5–403(1) and ensure that Nowak served both 50% of his 2003 sentence and 50% of his 2007 sentence. DOC acknowledged that if it applied the one-continuous-sentence rule and treated Nowak's eight-year sentence from 2003 and his twelve-year sentence from 2007 as one continuous twenty-year sentence, with an effective date of May 13, 2003, his PED would be approximately one year earlier, in March or April 2011.

¶ 9 The district court rejected DOC's argument that effectuating the 50% requirement of section 17–22.5–403(1) required DOC to ignore the one-continuous-sentence rule of section 17–22.5–101 and ordered it to recalculate Nowak's PED as if he had received a twenty-year composite sentence beginning on May 13, 2003.

¶ 10 DOC appealed under C.A.R. 1(a)(1) and section 13–4–102(1)(e), C.R.S. (2013), arguing that the district court erred by failing to give deference to its construction of section 17–22.5–403(1) in calculating Nowak's PED.

II. Jurisdiction

¶ 11 We first discuss the basis for this court's jurisdiction. “The writ of habeas corpus is designed primarily to determine whether a person is being detained unlawfully and therefore should be immediately released from custody.” Fields v. Suthers, 984 P.2d 1167, 1169 (Colo.1999). Habeas corpus is available “as a remedy to adjudicate a prisoner's claim that he was being denied consideration for discretionary parole.” Id. at 1169–70 (citing Naranjo v. Johnson, 770 P.2d 784, 787–88 (Colo.1989)). Here, Nowak filed a writ of habeas corpus alleging that DOC incorrectly calculated his projected PED and that he was currently eligible for parole consideration. The district court agreed, and DOC appealed. This court has jurisdiction over appeals from habeas corpus proceedings. SeeColo. Const. art. VI, § 2 (“Appellate jurisdiction”); see also§ 13–4–102(1)(e) (court of appeals does not have initial jurisdiction over appeals from final judgments of the district courts for writs of habeas corpus); Kodama v. Johnson, 786 P.2d 417, 418 n. 1 (Colo.1990) (“The supreme court has jurisdiction over appeals from habeas corpus proceedings.”).

¶ 12 During the pendency of this appeal, however, Nowak reached his PED and was paroled. As a result, the question of mootness arises. Generally, an appellate court will decline to render an opinion on the merits of an appeal when events after the underlying litigation have rendered the issue moot. Humphrey v. Sw. Dev. Co., 734 P.2d 637, 639 (Colo.1987). Although neither party has raised the issue, we will address the mootness problem because it may affect the existence of a justiciable controversy. See USAA v. Parker, 200 P.3d 350, 356–57 (Colo.2009).

¶ 13 An appellate court may resolve an otherwise moot case if the matter is one that is “ ‘capable of repetition, yet evading review.’ ” Humphrey, 734 P.2d at 639 (quoting Goedecke v. Dept. of Insts., 198 Colo. 407, 410 n. 5, 603 P.2d 123, 124 n. 5 (Colo.1979)).

¶ 14 In its motion to stay the district court's order pending appeal, which this court denied, DOC recognized that this issue could recur when it advised that the court's decision “may have [a] broad impact on time computation, and, if the decision in this case is affirmed, it is likely to result in a widespread policy and practice change concerning the calculation of inmate PEDs in situations akin to Nowak's.” Thus, this issue is capable of repetition.

¶ 15 This issue may continue to evade review, given the short time frame associated with habeas petitions. See, e.g., Colo. Dep't of Corrs., Parole Div. v. Madison, 85 P.3d 542, 544 n. 2 (Colo.2004) (addressing issue raised in DOC appeal from order on writ of habeas corpus releasing parolee from jail, despite mootness concerns, because issue of whether parolee's incarceration was illegal was capable of repetition yet likely to evade review).

¶ 16 Consequently, we exercise jurisdiction here, despite Nowak's transition to parole, because this issue is capable of repetition, yet evading review.

III. Standard of Review

¶ 17 The underlying facts regarding Nowak's criminal sentences and time credits are not in dispute. Instead, the parties debate the proper interpretation of sections 17–22.5–101 and 17–22.5–403(1) as they are applied to the calculation of Nowak's revised PED. When the facts are not in dispute and a district court resolves a habeas petition based solely on its interpretation of the relevant statutes and case law, the district court's decision is subject to de novo review. SeeMadison, 85 P.3d at 544.

IV. Analysis

¶ 18 This case requires us to analyze the relationship between sections 17–22.5–101 and 17–22.5–403(1) for the first time. Echoing its arguments before the district court, DOC contends that its decision to treat Nowak's consecutive sentences separately when calculating his PED was reasonable—and therefore entitled to deference—because (1) it gives effect to the statutory language in section 17–22.5–403(1); (2) it resolves a conflict between the two provisions by giving effect to the statute with the later effective date; and (3) it prevents an inequitable windfall for inmates who stagger their crimes over time or commit additional crimes while serving the...