People v. Black

Decision Date12 February 1996
Docket NumberNo. 94SC663,94SC663
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Earl S. BLACK, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for Respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to consider whether the court of appeals erred in remanding this case to the trial court to determine whether the parole eligibility scheme, as applied to persons convicted of sex offenses occurring between July 1, 1979, and July 1, 1985, violates the equal protection clause. People v. Black, 894 P.2d 767 (Colo.App.1994). We find no violation of the equal protection clause and therefore reverse the judgment of the court of appeals.

I.

Defendant Earl S. Black (Black) was convicted in 1984 of one count of first-degree sexual assault, § 18-3-402, 8B C.R.S. (1978 & 1983 Supp.), and one count of crime of violence, § 16-11-309, 8A C.R.S. (1982 Supp.), for a sexual assault that he committed in 1983. Black was sentenced to a term of 14 years' imprisonment plus one year of mandatory parole.

In August 1989, Black, pro se, filed a Crim. P. 35(c) motion claiming that he had served his entire sentence and that his release on parole was mandatory. The trial court denied the motion, and the court of appeals affirmed the trial court's order. See People v. Black, (Colo.App. No. 89CA1840, August 16, 1990) (not selected for official publication).

In February 1993, Black, through counsel, filed another Crim. P. 35(c) motion claiming that his sentence was illegal because it included a period of mandatory parole and because it violated both the due process and equal protection clauses. The trial court denied the motion, but modified Black's sentence by deleting the one-year mandatory parole requirement. Black appealed.

The court of appeals found that any illegality was eliminated by the trial court's deletion of the parole requirement, and rejected Black's due process claim. People v. Black, 894 P.2d at 771. However, the court of appeals held that Black had alleged facts supporting an "as applied" equal protection claim and remanded the case to the trial court for development of the facts. Id. at 772. The court of appeals instructed the trial court to determine whether the relevant sentencing scheme "as applied to this defendant, creates disparate treatment without a rational basis for such disparity." Id. The People's petition for certiorari review was subsequently granted by this court as to the following issue:

Whether the court of appeals erred in remanding this case to the trial court to determine whether the parole eligibility scheme as applied to sex offenders violates the Equal Protection Clause.

II.

Black's equal protection theory is that the applicable sentencing scheme treats him more harshly than it treats other persons who have been convicted of both sex offenses and more serious crimes. In Thiret v. Kautzky, 792 P.2d 801 (Colo.1990), we explained in detail the operation of the sentencing statutes for crimes committed between July 1, 1979, and July 1, 1985, which is the relevant time period for the present case. For most offenses, the determinate sentencing laws provide that parole is mandatory. That is, an inmate who has earned sufficient good time and earned time credits toward completion of his sentence is entitled to be released on parole and the Colorado State Parole Board (Parole Board) has no discretion to deny parole. Thiret v. Kautzky, 792 P.2d at 803-805.

Sentences for sex offenses, however, are not subject to mandatory parole. An inmate serving a sentence for conviction of a sex offense also earns good time and earned time credits but such credits serve only to make the inmate eligible for parole. The Parole Board retains discretion to release the inmate on parole and may require an inmate to serve the entire sentence in incarceration. Thiret v. Kautzky, 792 P.2d at 805-806.

This statutory mixture of mandatory and discretionary parole provisions has given rise to questions in the cases of inmates who are serving concurrent sentences for multiple crimes when the underlying crimes are subject to different treatment for purposes of parole. In Thiret, for example, the defendant was sentenced concurrently to a ten-year sentence with mandatory parole for attempted murder and a four-year sentence with discretionary parole for sexual assault on a child. Id. at 805. We rejected the prosecution's contention that the defendant was subject to a "hybrid" sentence of ten years with discretionary parole. Id. at 808. Instead, we found the governing sentence rule of Price v. Mills, 728 P.2d 715 (Colo.1986), to be dispositive. Id. Under the governing sentence rule, the longest of an inmate's concurrent sentences and its parole provisions prevails. Because Thiret was eligible for parole on his ten-year mandatory parole sentence, we ordered him released on parole. Thiret v. Kautzky, 792 P.2d at 808.

A similar issue was raised in Vaughn v. Gunter, 820 P.2d 659 (Colo.1991), where the inmate was serving concurrent sentences for crimes occurring both before and after July 1, 1985, when mandatory parole was statutorily abolished. Again, we applied the governing sentence rule and held that the inmate's parole eligibility was determined by the longest sentence, which in that case carried a mandatory parole provision. We rejected the prosecution's argument that the governing sentence rule should be abandoned because it would produce absurd results. We noted that the governing sentence rule in fact had been applied to the defendant by the Department of Corrections, that no reasonable alternative rule was proposed, and that the longest sentence carried the greatest potential incarceration time. Id. at 662.

The case now before us presents a related but different issue from those considered in Thiret and Vaughn. Because Black received a single fourteen-year sentence for a sex offense subject to discretionary parole, his case does not present the problem of concurrent sentences with different parole provisions like Thiret and Vaughn. The Parole Board, exercising its discretion, has declined to parole Black and he has served his entire sentence in incarceration. 1

Black contends that because of the statutory mixture of mandatory and discretionary parole, he has been treated more harshly than others who have committed more serious crimes and that this disparate treatment violates his right to equal protection. He contends that other offenders who have been convicted of both a sex offense subject to discretionary parole and another more serious crime will serve less time in incarceration than he will because the longer sentences for the more serious crimes will be the governing sentences and such sentences are subject to mandatory parole. The court of appeals, in accepting Black's "as-applied" equal protection theory, remanded the case so that Black could present evidence of other offenders' sentences to prove that Black was punished more severely than other, more culpable offenders.

We find it unnecessary to remand this case for the presentation of evidence because we agree that the scenario described by Black and summarized above can occur under the determinate sentencing law applicable to crimes committed between July 1, 1979, and July 1, 1985. Construing Black's argument as a facial equal protection challenge to the provisions of discretionary parole for sex offenses subject to that law, we reject his argument and uphold the constitutionality of the law.

III.

Black's equal protection analysis is an attempt to extend the theory first adopted by this court in People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975), where we held that "[a] statute which prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like situations is violative of a person's right to equal protection of the laws." Calvaresi found that the culpable mental states required for reckless manslaughter and criminally negligent homicide were indistinguishable and invalidated the classification of the first crime as a felony and the second crime as a misdemeanor. Id. at 282-283, 534 P.2d at 318-319. In subsequent cases, however, we declined to use that equal protection analysis as a means to review the legislature's ranking of crimes for purposes of punishment. For example, in People v. Morgan, 637 P.2d 338 (Colo.1981), the court rejected an equal protection challenge to the felony murder statute. The defendant contended that felony murder could not constitutionally be punished more severely than criminally negligent homicide because criminally negligent homicide was the more serious of the two crimes. The defendant's argument regarding the relative seriousness of the two crimes was based on his correct observation that felony murder did not require proof of a culpable mental state but criminally negligent homicide did require such proof. Id. at 345. We rejected the defendant's argument and held that the legislature was free to determine the severity of the punishment to be imposed on separately defined crimes:

The legislature may provide that a homicide committed during defendant's participation in a felony shall be punishable as first-degree murder. This legislative decision is in no way rendered arbitrary by a legislative determination that criminally negligent homicide, although requiring a culpable mental state, is a less serious offense.

Id. (citation omitted). Recent cases have applied the...

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