People v. Turman

Decision Date22 February 1983
Docket NumberNo. 82SA243,82SA243
Citation659 P.2d 1368
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold TURMAN, Claude Richard Cory, Defendant-Appellant.
CourtColorado Supreme Court

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary Ricketson, Nathan B. Coats, Asst. Attys. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, Denver, for defendant-appellant.

ROVIRA, Justice.

Defendants Harold Turman and Claude Cory appeal from a decision of the Arapahoe County District Court denying their motions to vacate and set aside their sentences pursuant to Crim.P. 35 and for an order to grant good-time allowances for pretrial commitment. 1 We affirm.

I.

On August 16, 1979, Cory was sentenced to a term of imprisonment of from 8 years 364 days to nine years at Canon City for aggravated robbery. On October 17, 1979, Turman was sentenced to a term of from ten to sixteen years at Canon City for first-degree assault. The crimes for which they were sentenced were committed before July 1, 1979, and both were given credit for presentence confinement. 2

They subsequently filed motions pursuant to Crim.P. 35. Turman denominated his request a "Motion to Vacate and Set Aside Sentence," and Cory entitled his a "Motion for an Order to Grant Good-Time Allowances for Pre-Trial Commitment." Turman's motion named the People as plaintiff. James Ricketts, Director of Corrections, and Lena Dice, Supervisor of Time Computation, were named respondents in Cory's motion. The People stipulated that both Turman and Cory were indigent at the time of their arrest and that their indigency prevented them from posting bail.

The thrust of their argument before the trial court was that they were entitled to good-time credit for the time they spent in presentence confinement. 3 They argued that to deny them such credit would require them to spend a longer period incarcerated than a person who had received the same sentence but who had been able to post bail before being sentenced. They claimed that such a result deprived them of equal protection of the law.

The trial court, after finding that the Department of Corrections (Department) was not made a party (although it was advised of the Rule 35 proceeding brought by Cory), denied the defendants' motions on the ground that because it did not have jurisdiction over the Department or its employees, a Crim.P. 35 proceeding was inappropriate.

II.

Crim.P. 35(c)(2) affords every person convicted of a crime the opportunity for postconviction review on the grounds that the sentence was imposed in violation of the constitutions or laws of the United States or of Colorado; or that the sentence imposed exceeded the maximum authorized by law, or was not in accordance with the sentence authorized by law; or that the sentence imposed has been fully served.

Crim.P. 35(c)(3) allows an aggrieved person claiming a right to be released to request the court that imposed the sentence to vacate, set aside or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. The rule further provides that if a person is entitled to postconviction relief the court shall vacate and set aside the judgment, impose a new sentence, discharge the prisoner, or make such orders as are appropriate to restore a right that was violated.

The rule affords a convicted person the remedies that are available through a writ of habeas corpus, and a proceeding under Crim.P. 35(c) is governed by equitable principles. People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976).

A Crim.P. 35 proceeding is but one phase of a criminal proceeding. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Whether the court has jurisdiction to grant the relief requested must be determined by an analysis of the provisions of Crim.P. 35(c)(2) and (3). We have often looked to the American Bar Association Standards for Criminal Justice for guidance in the area of postconviction remedies. See People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974); People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). The commentary to standard 22-2.1 indicates clearly that protection of constitutional rights requires that postconviction remedies be broad and flexible. ABA, Standards for Criminal Justice 22-2.1 (1980). Here the defendants have alleged that their constitutional rights to equal protection have been violated by the statute relating to good-time credit. Our reading of Rule 35(c)(2) leads us to the conclusion that the court had jurisdiction to consider whether the defendants' constitutional rights were being denied. Consequently, we believe that the trial court was in error in holding that it had no jurisdiction because the Department was not a party.

III.

Section 17-20-107, C.R.S.1973 (1978 Repl.Vol. 8), effective at the time of the commission of the defendants' crimes, provided: 4

"[E]very prisoner confined in the state penitentiary who has committed no infraction of the rules or regulations of the prison or the laws of the state and who performs in a faithful, diligent, industrious, orderly, and peaceable manner the work, duties, and tasks assigned to him to the satisfaction of the superintendent may be allowed time credit reductions...."

The defendants contend that the failure of the Department to credit them with good time for the period spent in pretrial confinement denies them equal protection of the laws in violation of the fourteenth amendment to the United States Constitution and article II, section 25, of the Colorado Constitution. The basis of this claim is that section 17-20-107 requires them to serve more time in confinement than persons who received the same sentence, but who were not indigent and were therefore able to make bail.

A.

At the outset of our equal protection analysis, we must determine the level of scrutiny to be applied. If we find that a fundamental right or a suspect class is involved, we must apply a "strict scrutiny" analysis, under which the legislative provision, if it is to stand, must be supported by a "compelling state interest." Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Otherwise, we apply a "rational basis" test, under which the provision will be upheld if it is rationally related to a legitimate state interest. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

With respect to the "fundamental right" question, the United States Supreme Court has held that there is no constitutional right to good-time credit. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Moreover, we have been unable to find any jurisdiction that holds that there is such a right. The United States Supreme Court has held that "[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a 'retraction justified by the considerations underlying our penal system.' " Id. at 555, 94 S.Ct. at 2974 (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed.2d 1356 (1948)). If we were to view the withholding of good-time credits as the withholding of a fundamental liberty, we would be imposing an onerous burden on our corrections system. That is, before the state may deprive a citizen of a fundamental right, it must accord him a plethora of constitutional protections that may be incompatible with the efficient administration of a penal institution. Consequently, although the question of good-time credits does implicate a liberty interest, we are unwilling to conclude that it is a fundamental one. Therefore, we decline to employ a strict scrutiny analysis based upon the denial of a fundamental right.

The defendants urge more forcefully that section 17-20-107 is constitutionally infirm because it discriminates against a suspect class--the indigent. 5 Contrary to the contentions of the defendants, however, the United States Supreme Court has never held that indigency is a suspect class. See G. Gunther, Constitutional Law 961 (10th ed. 1980); L. Tribe, American Constitutional Law 1098 (1979).

The cases cited by defendants do not support the conclusion that wealth is a suspect class under the equal protection clause even in the context of the criminal justice system. For example, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was not an equal protection case at all. It held that the right to counsel guaranteed by the sixth amendment was made applicable to the states by the fourteenth amendment and that as a matter of due process the state was required to furnish counsel to indigents. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), decided the same day as Gideon, relied on the equal protection clause in holding that indigents have a constitutional right to appointed counsel on appeal. The Douglas opinion did not, however, address the level of scrutiny involved, although if it used a strict scrutiny analysis, it was almost certainly on the basis of the existence of a "fundamental right," rather than on the basis that a "suspect class" was involved. The plurality opinion in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), holding that indigents have a right to a free transcript on appeal, was based upon both the equal protection clause and the due process clause. Strict scrutiny analysis was apparently not used, the Court finding that the challenged procedure bore "no rational relationship to a defendant's guilt or innocence." Id. at 17-18, 76 S.Ct. at 590. Likewise, the cases of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, ...

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