Vaughn v. Gunter, 91SA39
| Decision Date | 03 December 1991 |
| Docket Number | No. 91SA39,91SA39 |
| Citation | 820 P.2d 659 |
| Parties | Cedrick VAUGHN, Petitioner-Appellee, v. Frank GUNTER, Executive Director of the Department of Corrections, and Bill Boggs, Superintendent, Rifle Correctional Center, Respondents-Appellants. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., John August Lizza, First Asst. Atty. Gen., Paul S. Sanzo, Asst. Atty. Gen., Human Resources Section, Denver, for respondents-appellants.
No appearance for petitioner-appellee.
The Department of Corrections (Department) brings this appeal from the trial court's order granting a petition for writ of habeas corpus filed by an inmate, Cedrick Vaughn. We have jurisdiction of this appeal pursuant to section 13-4-102(1)(e), 6A C.R.S. (1987). The trial court held that, although Vaughn was not entitled to absolute release, he was entitled to be released on parole. We agree.
Vaughn was convicted and sentenced in three different cases in the Denver District Court. The first offense occurred on September 28, 1984. Vaughn was convicted of possession of a controlled substance, a class 3 felony, in violation of section 18-18-105, 8B C.R.S. (1986), and was sentenced to a term of nine years plus a period of parole. The second offense occurred on July 10, 1985. Vaughn was convicted of theft, a class 4 felony, in violation of section 18-4-401, 8B C.R.S. (1986), and he was sentenced to a term of eight years plus a period of parole. The final offense occurred on December 2 and 3, 1985 and resulted in Vaughn's conviction of attempted motor vehicle theft, a class 5 felony, in violation of section 18-2-101, 8B C.R.S. (1986). Vaughn was sentenced to a term of eight years plus a period of parole. The three sentences were to be served concurrently.
Because Vaughn's initial conviction and sentence concerned a crime committed before July 1, 1985 and his second two convictions and sentences concerned crimes committed on or after July 1, 1985, Vaughn was sentenced under two different schemes which have different approaches to parole. Compare § 17-22.5-303(4), 8A C.R.S. (1986) with § 17-22.5-303(6), 8A C.R.S. (Cum.Supp.1991). See generally Thiret v. Kautzky, 792 P.2d 801, 803-805 (Colo.1990). Under section 17-22.5-303(4), which applies to Vaughn's controlled substance offense, he must be released on his parole eligibility date or placed on parole for up to three years. See Thiret, 792 P.2d at 804 n. 6 and accompanying text. Vaughn's second and third sentences, however, are subject to section 17-22.5-303(6). Under that statute, good time and earned time credits accrued by an inmate serve to determine his parole eligibility date but do not mandate his release on parole. Id. at 805. See also Renneke v. Kautzky, 782 P.2d 343, 346 (Colo.1989) ().
In this case, then, Vaughn's nine-year sentence carries with it mandatory parole while his two eight-year sentences are subject to parole at the discretion of the parole board. Vaughn filed his petition for writ of habeas corpus after he had been incarcerated for approximately five years and argued that his nine-year sentence was the "governing" sentence because it was the longest sentence of potential incarceration. Since that sentence required mandatory parole and he had accumulated sufficient good time and earned time credits to qualify for parole, he contended that he was entitled to be released. The trial court agreed that the nine-year sentence was the "governing" sentence and ordered the parole board to set the terms and conditions for his release.
For purposes of parole, when multiple sentences are involved, the legislature requires the Department of Corrections to construe all sentences being served by an inmate as one continuous sentence. § 17-22.5-101, 8A C.R.S. (1986). In the case of concurrent sentences, we have said that "concurrent sentences obviously commence at the same time and in functional effect result in one term of imprisonment represented by the longest of the concurrent sentences imposed." Schubert v. People, 698 P.2d 788, 795 (Colo.1985). The longest of the concurrent sentences also is described as the "governing" sentence.
In Price v. Mills, 728 P.2d 715 (Colo.1986), we considered which parole eligibility system should apply when an inmate was serving sentences for offenses committed both before and after July 1, 1979. Pre-1979 offenses were subject to lengthy, indeterminate sentences with discretionary parole while post-1979 offenses were subject to shorter, determinate sentences with mandatory parole. To decide which was the governing sentence, we looked to the sentence with the maximum potential period for incarceration or the sentence having the longer incarceration effects. We then applied the parole system for that sentence to all concurrent sentences imposed on the inmate. Id. at 718-719. Since the longest sentences were imposed for pre-1979 offenses, the effect of Price was to apply the discretionary parole feature of the pre-1979 law to inmates' composite sentences for convictions of crimes occurring both before and after July 1, 1979.
In the Thiret case, the inmate was serving two concurrent sentences resulting from the same criminal episode in August 1983. He was sentenced to ten years of imprisonment plus one year of parole for attempted murder and four years of imprisonment plus one year of parole for sexual assault on a child. Based on a statutory exception, we determined that parole was discretionary on the sexual assault conviction but mandatory with respect to the attempted murder conviction. The Department argued for a composite or hybrid sentence which would take features from both sentences, namely the ten-year sentence imposed on the attempted murder charge and the discretionary parole applicable to the sexual assault charge. It made the argument despite the fact that the sentence to which discretionary parole applied had been completely served. We rejected the Department's position and held that Price was dispositive. Thiret, 792 P.2d at 807-808. We said:
Under the logic of Price, the "governing" sentence is the longest sentence for which Thiret was sentenced, and the relevant parole provisions of that sentence apply to the entire "composite" sentence.
Id. at 808 (footnote omitted). We found that there...
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People v. Black
...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 ......
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