Thiret v. Kautzky, 89SA240

Citation792 P.2d 801
Decision Date29 May 1990
Docket NumberNo. 89SA240,89SA240
PartiesRobert THIRET, Petitioner-Appellant, v. Walter KAUTZKY, Executive Director of the Colorado Department of Corrections, Respondent-Appellee.
CourtSupreme Court of Colorado

Philip A. Cherner, Stayton & Brennan, Denver, for petitioner-appellant.

Duane Woodard, Atty.Gen., Charles B. Howe, Deputy Atty.Gen., Richard H. Forman, Sol.Gen., and Robert C. Ripple, Asst. Atty. Gen., Denver, for respondent-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal of a denial of a writ of habeas corpus. The petitioner, Robert Thiret, brought this action in Fremont County District Court against respondent Walter Kautzky, the Executive Director of the Colorado Department of Corrections (the Department), asking the court to order his release from the custody of the Department. Thiret argued that under the statutory provisions governing parole, he was entitled to mandatory release from prison as of February 23, 1989. The trial court denied his petition, finding that the Colorado State Board of Parole (Parole Board) acted within its discretion in denying Thiret parole. We reverse.

I.

This case arises out of the abduction and sexual assault of a child in August 1983. Thiret pled guilty to one count of attempted first-degree murder, section 18-3-102(1)(a), 8 C.R.S. (1978) (current version at section 18-3-102(1)(a), 8B C.R.S. (1986)), and section 18-2-101, 8 C.R.S. (1978) (amended 1989, current version at section 18-2-101, 8B C.R.S. (1986 & 1989 Supp.)), and one count of sexual assault on a child, section 18-3-405, 8 C.R.S. (1978 & 1984 Supp.) (amended 1986, 1989, current version at section 18-3-405, 8B C.R.S. (1986 & 1989 Supp.)). Pursuant to an agreement between Thiret and the prosecutor, on September 26, 1984 Thiret was sentenced to ten years of imprisonment plus one year of parole on the attempted murder charge, and four years of imprisonment plus one year of parole on the sexual assault on a child charge. The two sentences were imposed to run concurrently. Testimony presented at the habeas corpus hearing indicated that the Department initially calculated Thiret's parole date as February 23, 1989, and classified his parole as "mandatory." On November 29, 1988, the Parole Board considered Thiret's application for parole and granted the application effective February 23, 1989. Subsequent to the Parole Board's decision granting parole to Thiret, the Parole Board requested and received an oral opinion from an assistant attorney general which indicated that an individual sentenced for any sex offense, as defined by section 16-13-202(5), 8A C.R.S. (1986), was not subject to mandatory parole. The Parole Board was advised that such persons could be granted or denied parole at the Parole Board's discretion. In January 1989, the Parole Board reversed its prior decision and voted to deny parole to Thiret. Thiret brought this action in the district court seeking a writ of habeas corpus, alleging that parole was mandatory and he was entitled to immediate release. The district court denied the requested relief and Thiret took this direct appeal. 1

II.

Thiret offers two arguments in support of his petition for a writ of habeas corpus. First, he argues that both offenses for which he was convicted, attempted first-degree murder, and sexual assault on a child, are governed by the mandatory parole provisions of section 16-11-310, 8A C.R.S. (1986), which require release when good time credits plus time served equals the sentence received 2 and are not governed by the discretionary parole provision of section 17-2-201(5)(a). As the Department concedes, if parole is mandatory for both substantive offenses for which Thiret was sentenced, then Thiret is entitled to immediate release from the custody of the Department because he has accrued sufficient "good time" credits pursuant to section 17-22.5-301(2), 8A C.R.S. (1986). Thiret further argues that even if the Parole Board had discretion to grant or deny him parole with respect to the sexual assault on a child charge, he is entitled to immediate release because he already has been incarcerated for a time period greater than the four years of imprisonment plus one year of parole sentence he received on the sexual assault charge, and he has accrued sufficient good time credits to require that he be paroled on the attempted murder charge. We address each of Thiret's contentions in turn.

A. Parole of Persons Convicted of a "Sex Offense" as Defined

by Section 16-13-202(5).

In determining whether the Department must release Thiret, it is useful to review the recent history of the statutes governing parole. In the past few years, the state sentencing laws, including the statutes relevant to parole, have undergone a series of major changes. In the late 1970s, the legislature changed the parole and sentencing system from one of "indeterminate" sentencing, which placed substantial discretion in the sentencing courts and Parole Board, 3 to "determinate" sentencing with "mandatory" parole, which substantially removed all discretion from the sentencing courts and Parole Board. Subsequent legislation relaxed the rigid requirements of "determinate" sentencing and, ultimately, the legislature adopted the present "modified determinate" sentencing system which restores some discretion to the sentencing courts and Parole Board.

Prior to the enactment of "mandatory" parole provisions by the legislature in 1979, the parole of prisoners from correctional institutions was a matter within the sole discretion of the Parole Board. Inmates serving prison sentences for crimes committed before July 1, 1979 could receive the following three types of credits which potentially reduced their sentences: (1) "statutory good time" under section 17-22.5-201(1); (2) "trusty time" under section 17-22.5-201(2); and (3) "meritorious time" under section 17-22.5-201(3). Price v. Mills, 728 P.2d 715, 717 (Colo.1986). 4 However, credits earned merely determined the date on which the inmate became eligible for parole. Once such an inmate became eligible for parole, the Parole Board had complete discretion to grant or deny parole to that person. See § 17-2-201(5)(a), 8A C.R.S. (1986); People v. Montgomery, 669 P.2d 1387, 1392 (Colo.1983).

In 1979 the legislature adopted the new "determinate" sentencing law, H.B. 1589, popularly known as the "Gorsuch" bill. Ch. 157, 1979 Colo.Sess.Laws 664. The Gorsuch bill, effective July 1, 1979, departed from the previous discretionary parole system and, in effect, adopted a system of "mandatory parole." 5 Although there is no one provision in the Gorsuch bill which specifically made parole mandatory for post-July 1, 1979 offenses, several provisions in that bill, as well as in subsequent amendments, considered together, clearly had this effect. 6

In 1988, the legislature amended the parole provisions to once again grant the Parole Board discretion to grant or deny parole. See § 17-22.5-301(3), 8A C.R.S. (1986) (good time credits no longer vest); § 17-22.5-303(6), 8A C.R.S. (1986) (Parole Board had discretion to deny person parole even though credits accrued make person parole eligible); Renneke v. Kautzky, 782 P.2d 343, 346 (1989) (same). Thus, in Colorado, with respect to the statutory scheme governing parole, we have three general classes of persons now serving sentences in our prisons:

1. Those serving sentences for crimes committed prior to July 1, 1979.

2. Those serving sentences for crimes committed on or after July 1, 1979 but before July 1, 1985.

3. Those serving sentences for crimes committed on or after July 1, 1985.

Upon accruing sufficient credits to become eligible for parole, persons fitting under the first and third categories may be granted or denied parole at the discretion of the Parole Board. Good time and earned time credits earned by an inmate towards his release, for persons coming under these categories, merely establish the date of parole eligibility. A person fitting under the second category, however, must be paroled upon reaching the parole date as determined by deducting vested good time and earned time credits from the person's sentence. 7

Because Thiret was sentenced for a crime which was committed after July 1, 1979 but before July 1, 1985, he is within the mandatory parole group unless the Department can point to a statutory provision excluding him. The Department argues that persons like Thiret who are convicted of sexual assault on a child are exempt from the mandatory parole provisions and may be paroled only at the discretion of the Parole Board. Section 17-2-201, 8A C.R.S. (1986), states in relevant part:

(5)(a) As to any person sentenced for conviction of a felony committed prior to July 1, 1979, or of a misdemeanor and as to any person sentenced for conviction of a sex offense, as defined in section 16-13-202(5), C.R.S., or a class 1 felony and as to any person sentenced as a habitual criminal pursuant to section 16-13-101, C.R.S., the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court or five years, whichever is less.

(Emphasis added.) The Department argues that sexual assault on a child comes within the exception of section 17-2-201(5)(a), because it is a "sex offense" as defined in section 16-13-202(5). Section 16-13-202 defines a "sex offense" as follows:

(5) "Sex offense" means sexual assault, except misdemeanor sexual assault in the third degree, as set forth in part 4 of article 3 of title 18, C.R.S.; sexual assault on a child, as defined in section 18-3-405, C.R.S.; aggravated incest, as defined in section 18-6-302, C.R.S.; and an attempt to commit any of the offenses mentioned in this subsection (5).

(Emphasis...

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