Santisteven v. Johnson

• Decision Date: 07 March 1988
• Docket Number: No. 86SA222,86SA222
• Citation: 751 P.2d 621
• Parties: Arthur SANTISTEVEN, Petitioner-Appellee, v. Harold Benny JOHNSON, Superintendent, Fremont Correctional Facility, Respondent-Appellant.
• Court: Colorado Supreme Court

Page 621

751 P.2d 621

Arthur SANTISTEVEN, Petitioner-Appellee, v. Harold Benny JOHNSON, Superintendent, Fremont Correctional Facility, Respondent-Appellant.

No. 86SA222.

Supreme Court of Colorado En Banc.

March 7, 1988.

Rehearing Denied April 4, 1988.

David F. Vela, State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for petitioner-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Terrence A. Gillespie, Asst. Atty. Gen., Denver, for respondent-appellant.

KIRSHBAUM, Justice.

Appellant Harold Benny Johnson, Superintendent of the Fremont Correctional Facility (Superintendent), appeals a trial court order requiring the Department of Corrections (the Department) to grant appellee, Arthur Santisteven (Santisteven), certain credits for periods of confinement against the mandatory release date established by the Department with respect to two consecutive sentences imposed upon Santisteven in 1978. The Superintendent contends that Santisteven is not entitled to the credits claimed. We agree, and therefore reverse and remand with directions.

I

On August 21, 1978, following convictions upon guilty pleas entered in Jefferson County District Court to two counts alleging the commission of theft in violation of section 18-4-401, 8 C.R.S. (1973), Santisteven was committed to the custody of the Department to serve two consecutive two-to-ten year sentences. The Parole Board granted Santisteven parole on those sentences on July 1, 1980.

On March 19, 1981, Santisteven was arrested and incarcerated in Denver, Colorado, for allegedly having committed the offenses of second degree murder and violent crime. Santisteven was charged with these offenses in Denver District Court, and thereafter a parole detainer was filed against him. Santisteven was later convicted by a jury of the offense of manslaughter, as defined by section 18-3-104, 8 C.R.S. (1978), and was sentenced on November 12, 1981, to the custody of the Department for a term of seven years plus one year of parole. The mittimus issued by the trial court contains the finding that Santisteven had spent 241 days in presentence confinement prior to November 12, 1981.

On December 2, 1981, the Parole Board revoked Santisteven's parole on the 1978 sentences. The manslaughter conviction was subsequently overturned, ¹ and on January 17, 1985, the Parole Board reinstated Santisteven's parole status.

On February 27, 1985, Santisteven was arrested and incarcerated in Denver for allegedly having committed additional offenses. He was subsequently charged in Denver District Court with having committed two offenses of forgery, as defined by section 18-5-103, 8 C.R.S. (1978), and a parole detainer was then filed against him. Santisteven testified that the filing of this detainer prevented him from being able to post a bond for his release pending trial. ² On October 7, 1985, after having been convicted by a jury of these two offenses, Santisteven received two concurrent three-year sentences. The mittimus issued by the trial court contains an order that Santisteven "is given credit for 223 days presentence confinement and good time." Prior to that date, on September 12, 1985, the Parole Board revoked Santisteven's parole on the 1978 sentences.

When Santisteven was returned to the custody of the Department in 1985, the Department recalculated his mandatory release date and established that date as October 29, 1989. ³ In making this recalculation, the Department did not give Santisteven credit for any of the periods of time in 1981 and 1985 during which he was incarcerated in Denver awaiting disposition of criminal charges filed against him in that jurisdiction.

On April 2, 1986, Santisteven filed a writ of habeas corpus alleging, inter alia, that he was entitled to immediate release from custody and that he was entitled to an order requiring the Department to recalculate his mandatory release date on his 1978 sentences by granting him credit for the periods of time he was incarcerated in Denver in 1981 and 1985. On April 28, 1986, following a hearing, the Fremont County District Court ordered the Department to recalculate Santisteven's mandatory discharge date from his 1978 sentences by including credits totaling one year, two months and twenty-five days to reflect his 1981 and 1985 periods of confinement in Denver. ⁴ The Superintendent has appealed only that portion of the trial court's order requiring the Department to grant Santisteven credit for the six months and twelve days in 1985 during which he was incarcerated in Denver.

II

The Superintendent asserts that the Department is prohibited by section 17-22.5-203, 8A C.R.S. (1986), from awarding credit to Santisteven against his 1978 sentences for the time he was incarcerated in 1985 awaiting trial on the Denver forgery charges. ⁵ We agree.

The statute contains the following language:

Time of parole not considered when inmate is reincarcerated. (1) The paroled inmate, upon an order of the state board of parole, may be returned to the custody of the department according to the terms of his original sentence, and, in computing the period of his confinement, the time between his release and his return to said custody shall not be considered any part of the term of his sentence.

§ 17-22.5-203(1), 8A C.R.S. (1986). The statute appears to represent an effort by the General Assembly to deter parolees from violating the terms of their parole agreements. It treats the period during which the prisoner was on parole status as non-existent for purposes of ascertaining the extent to which the person has satisfied a previously imposed sentence. As a result, it prohibits any award of credit against the original sentence for any time a person is on parole status if that status is terminated by order of the parole board prior to the expiration of the period of parole. ⁶

In People v. Martinez, 728 P.2d 363 (Colo.App.1986), the Colorado Court of Appeals reached a similar conclusion in analyzing the substantially similar language of section 17-2-205, 8 C.R.S. (1978). Santisteven argues that the reasoning of Martinez is inapplicable to him because section 17-22.5-203 must be construed to grant him rights to credit denied by its predecessor, section 17-2-205. He first asserts that different language in the current statute compels this conclusion. He also argues that the provisions of section 16-11-306, 8 C.R.S. (1985 Supp.), must be considered when construing section 17-22.5-203 and that, when the two statutes are read together, his proposed interpretation of section 17-22.5-203 becomes compelling. Finally, he argues that section 17-22.5-203 must be construed to deny credit for no more than thirty days when read in conjunction with section 17-2-103(7), 8A C.R.S. (1986). We find these arguments unpersuasive.

Section 17-2-205, the predecessor of section 17-22.5-203, contained the following language:

Time of parole not considered when convict is reincarcerated. The paroled convict who, upon the order of the board, may be returned to the penitentiary shall be retained therein according to the terms of his original sentence, and in computing the period of his confinement the time between his release upon said permit and his return to said penitentiary shall not be taken to be any part of the term of the sentence.

§ 17-2-205, 8 C.R.S. (1978). Santisteven argues that the substitution of the word "custody" in section 17-22.5-203 for the word "penitentiary" in section 17-2-205 signifies a legislative intent to expand a parolee's right to receive credit for confinement prior to parole revocation and requires the Department to exclude only the period of time between the parolee's date of arrest and the date a parole detainer is filed when calculating credits against sentences to be served by the parolee. We do not agree that the substitution of the word "custody" for the word "penitentiary" evidences any such fundamental change in legislative policy. The new statute, as did the old, seeks by unambiguous language to discourage criminal conduct by persons granted parole status. Adoption of Santisteven's proposed construction would severely dilute the disincentive to criminal conduct established by section 17-22.5-203. We reject such construction.

Relying upon our decision in Schooley v. Wilson, 150 Colo. 483, 374 P.2d 353 (1962), Santisteven asserts that for purposes of section 17-22.5-203 he must be deemed to have been in the custody of the Department from the time the parole detainer was lodged against him. In Schooley, a parolee was arrested and incarcerated on the basis of an alleged parole violation. He remained confined for a period of time in excess of the maximum time permitted by the then applicable statutes governing detention prior to parole revocation. In concluding that this violation of the statute required release of the parolee, we noted a distinction between the "constructive" custody exercised by the state over a person on parole status and the "physical" custody exerted over a person arrested and confined on the basis of an allegation of a parole violation.

The analysis employed in Schooley is not applicable to this case, however. The defendant's detention in that case was initiated by the Parole Board. Santisteven was arrested and confined for acts of forgery by Denver authorities and remained in the physical custody of Denver authorities until his parole was revoked in September of 1985. Only after Santisteven was transferred to the Department did the Department begin to exercise physical custody over him. See Castro v. District Court, 656 P.2d 1283 (Colo.1982).

Santisteven argues that section 17-22.5-203(1), when construed together with section 16-11-306, 8 C.R.S. (1985 Supp.), does not prohibit credit for a parolee's presentence confinement during that period of time between the arrest and the revocation of parole. We disagree.

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