People v. Frank

• Decision Date: 03 August 2000
• Docket Number: No. 98CA1735.,98CA1735.
• Citation: 30 P.3d 664
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William H. FRANK, Defendant-Appellant.
• Court: Colorado Court of Appeals

30 P.3d 664

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William H. FRANK, Defendant-Appellant.

No. 98CA1735.

Colorado Court of Appeals, Div. III.

August 3, 2000.

Rehearing Denied December 7, 2000.

Certiorari Denied August 20, 2001.¹

Ken Salazar, Attorney General, Christine Cates Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, William H. Frank, appeals from the trial court's order denying his postconviction motion to amend the mittimus to award him earned-time credits pursuant to § 17-22.5-405, C.R.S.1999. We affirm in part and remand for further proceedings.

Defendant was charged with three counts of sale of 28 grams or more of a schedule II controlled substance, a class three felony, and one count of possession of marihuana with intent to sell, a class four felony. He initially pled not guilty to the charged offenses. At the time of the charged offenses, defendant had been on parole for a federal conviction (88CR003).

Prior to trial, the prosecutor and defendant jointly requested a continuance of the trial date on the grounds that defendant had a federal parole hearing pending, as a result of his charges in the instant case, and that plea negotiations were ongoing to resolve both the federal and the state proceedings. The court granted the continuance.

Defendant eventually reached a plea agreement pursuant to which he admitted to having violated his federal parole, pled guilty to one count of sale of 28 grams or more of a schedule II controlled substance, and stipulated to a 14-year sentence at the Department of Corrections (DOC) to be served concurrently with his federal sentence.

At the providency and sentencing hearing on October 27, 1994, counsel informed the court of the terms of the plea agreement, and the court imposed sentence in accordance with those terms.

Specifically, the judgment of conviction provided that defendant would be sentenced to the "custody of the Executive Director of the DOC for a term of '14' (fourteen) years with credit for 460 days served prior to sentencing," and stated that the "sentence [was] to be served concurrently with federal case number 88CR003." In addition, the judgment directed the sheriff to "convey defendant to the Colorado State Department of Corrections Diagnostic Unit."

However, on July 15, 1994, before that sentence was imposed, defendant had entered a guilty plea to the federal parole violation and had been sentenced in federal court to a federal prison term. Thus, he remained in federal custody and was apparently not conveyed to the DOC diagnostic unit. He did not begin serving his state sentence in the DOC facility until March 1, 1998.

Defendant thereafter filed a motion to amend the mittimus to reflect that he was entitled to earned-time credit of 400 days pursuant to § 17-22.5-405, in connection with the time he had served in federal prison following his sentencing in the state case.

The court denied defendant's motion without holding an evidentiary hearing, noting that it "cannot award earned time" and "cannot convert it to presentence time without a stipulation." This appeal followed.

I.

Defendant contends that the trial court erred in denying his motion because he was entitled to enforce an implied promise by the prosecution that he could accrue earned-time from the date his state sentence was imposed, a promise he allegedly relied upon in entering into the plea agreement. We disagree.

What the prosecution promised defendant as part of the plea agreement was simply that his state sentence would run concurrently with his federal sentence. As defendant concedes in his opening brief, at no time during the providency hearing did the prosecution explicitly promise him that he would receive or be entitled to earned-time credit for the time he was in the federal prison. Indeed, the record does not indicate that the subject of earned-time credits was ever mentioned.

Defendant's contention amounts, in effect, to a request that an earned-time credit promise be read into his plea agreement where none exists. We decline to do so.

II.

Defendant also contends that if § 17-22.5-405 is read as prohibiting him from receiving earned-time on his state sentence for time spent in federal prison, then the statute violates his constitutional right to equal protection.

Defendant failed to raise this issue in the district court. We therefore decline to consider it on appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988)

(an appellate court will not consider constitutional issues for the first time on appeal); see also People v. Hughes, 946 P.2d 509 (Colo.App.1997).

III.

Finally, defendant contends that the trial court erred in not conducting a hearing to allow him to demonstrate to DOC that he should receive earned-time credits pursuant to § 17-22.5-405 for having made progress in one or more of the goals set forth in the statute during the time he was in federal prison. We agree that a remand is necessary.

As pertinent here, § 17-22.5-405(3) provides:

For each inmate sentenced to the custody of the department, or for each parolee, the department shall review the performance record of the inmate or parolee and may grant . . . consistent with the provisions of this section, an earned time deduction from the sentence imposed.

While the granting of earned-time by the DOC is discretionary, § 17-22.5-405(3) requires a review by DOC of the...