23CA2011 Fernandez v CDOC 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2011 El Paso County District Court No. 23CV224 Honorable David A. Gilbert, Judge
Marcus J. Fernandez,
Plaintiff-Appellant,
v.
Executive Director of Colorado Department of Corrections and Warden of the Buena Vista Correctional Facility,
Defendants-Appellees
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Marcus J. Fernandez, Pro se
Philip J. Weiser, Attorney General, Rebekah Ryan, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Marcus J. Fernandez, sued the Colorado Department
of Corrections (CDOC) regarding its calculation of his parole
eligibility date (PED) for the two sentences he is currently serving.
Defendants, the CDOC’s Executive Director and the Warden of the
Buena Vista Correctional Facility, moved to dismiss Fernandez’s
suit under C.R.C.P. 12(b)(5). The district court granted the motion
and dismissed his complaint. We affirm.
I. Background and Sentencing
¶2 A jury convicted Fernandez of first degree felony murder and
first degree aggravated motor vehicle theft for acts committed when
he was fifteen. The trial court originally sentenced him to
concurrent sentences of life without the possibility of parole and
sixteen years in the custody of the CDOC for his respective
convictions. After Colorado amended its statutes to prohibit
mandatory life sentences without the possibility of parole for
juvenile offenders, Fernandez was resentenced to forty-six years for
the felony murder, again running concurrently with the
sixteen-year-motor-vehicle-theft sentence. Both sentences began to
run on the same date.
2 ¶3 Fernandez’s PED for his vehicle theft sentence is controlled by
section 17-22.5-403(1), C.R.S. 2024, which says that he will be
eligible for parole after completing fifty percent of his sixteen-year
sentence. But his PED for the felony murder sentence is controlled
by section 17-22.5-403(2)(c)(I), which says that a resentenced
juvenile is not entitled to a sentence reduction for his PED. In other
words, he is not entitled to any reduction of his forty-six-year
sentence before he will be eligible for parole.
¶4 The CDOC used Fernandez’s forty-six-year sentence as his
controlling sentence and calculated his PED as falling at the end of
that sentence, adjusted for other credits and reductions. Fernandez
disagreed with that calculation and filed a petition for a writ of
mandamus to direct the CDOC to recalculate his PED to give effect
to both provisions in section 17-22.5-403. His request in the
district court — repeated on appeal — is to have the CDOC make
his PED eight years earlier than the end of his forty-six-year
sentence. He argues that this will give effect to the fifty percent
reduction of his sixteen-year sentence as well as the forty-six-year
sentence itself.
3 ¶5 The CDOC filed a motion to dismiss the case under Rule
12(b)(5), arguing that Fernandez was not entitled to his requested
relief as a matter of law. The trial court granted the motion and
dismissed the case.
II. Analysis
¶6 Fernandez contends that the district court erred by denying
his petition for a writ of mandamus because the CDOC did not
apply the proper method of calculating his PED.
A. Standard of Review and Applicable Law
¶7 “We review a trial court’s ruling on a motion to dismiss de
novo, ‘applying the same standards as the trial court.’” Sch. Dist.
No. 1 v. Masters, 2018 CO 18, ¶ 13 (quoting Bly v. Story, 241 P.3d
529, 533 (Colo. 2010)). We must “accept all allegations of material
fact as true and view the allegations in the light most favorable to
the plaintiff.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.
1999). “Dismissal is proper when the plaintiff’s factual allegations
cannot support a claim as a matter of law.” Graham v. Maketa, 227
P.3d 516, 518 (Colo. App. 2010).
¶8 “Mandamus is an extraordinary remedy that requires public
officials to perform plain legal duties they owe by virtue of their
4 offices.” Owens v. Carlson, 2022 CO 33, ¶ 21 (citing Bd. of Cnty.
Comm’rs v. Cnty. Rd. Users Ass’n, 11 P.3d 432, 437 (Colo. 2000)).
“While mandamus is available to compel the performance of ‘a
purely ministerial duty involving no discretionary right’ and
requiring no ‘exercise of judgment,’ it is not available to compel the
performance of a task that ‘is discretionary or involves the exercise
of judgment.’” Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at 437).
¶9 A plaintiff seeking mandamus relief bears a demanding
burden to satisfy a three-part test: (1) the plaintiff must have “a
clear right” to the relief sought; (2) the defendant must have “a clear
duty” to perform the act requested; and (3) there can be no other
remedy available. Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at
437).
B. The Governing Sentence Determines Fernandez’s Parole Eligibility Date
¶ 10 Fernandez argues that he has a clear right to recalculation of
his PED because the CDOC’s use of the longer of his two sentences
as the parole-determining sentence is improper. He also proposes
an alternative method for calculating his PED. But because the
Colorado Supreme Court has allowed for the use of the governing
5 sentencing method in sentencing situations like Fernandez’s, we
disagree and resolve his case at this initial step.
¶ 11 The one continuous sentence rule governs Fernandez’s case:
“[W]hen any inmate has been committed under several convictions
with separate sentences, the [CDOC] shall construe all sentences as
one continuous sentence.” § 17-22.5-101, C.R.S. 2024. The
legislature did not define the phrase “one continuous sentence”;
however, the Colorado Supreme Court has approved of various
methodologies that satisfy this requirement.
¶ 12 One such method relies on the governing sentence, which
applies when an inmate has multiple sentences “with incompatible
[sentencing] provisions governing the service of those sentences.”
Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77, ¶ 13. In
such a case, the CDOC uses the sentence with the longest
incarceration effect as controlling for parole eligibility. Id.
Additionally, “[i]n the case of concurrent sentences, [the supreme
court] ha[s] 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.’” Vaughn v. Gunter, 820 P.2d 659, 661 (Colo.
6 1991) (quoting Schubert v. People, 698 P.2d 788, 795 (Colo. 1985)).
“The longest of the concurrent sentences also is described as the
‘governing’ sentence.” Id. While the CDOC is not required to use
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23CA2011 Fernandez v CDOC 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2011 El Paso County District Court No. 23CV224 Honorable David A. Gilbert, Judge
Marcus J. Fernandez,
Plaintiff-Appellant,
v.
Executive Director of Colorado Department of Corrections and Warden of the Buena Vista Correctional Facility,
Defendants-Appellees
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Marcus J. Fernandez, Pro se
Philip J. Weiser, Attorney General, Rebekah Ryan, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Marcus J. Fernandez, sued the Colorado Department
of Corrections (CDOC) regarding its calculation of his parole
eligibility date (PED) for the two sentences he is currently serving.
Defendants, the CDOC’s Executive Director and the Warden of the
Buena Vista Correctional Facility, moved to dismiss Fernandez’s
suit under C.R.C.P. 12(b)(5). The district court granted the motion
and dismissed his complaint. We affirm.
I. Background and Sentencing
¶2 A jury convicted Fernandez of first degree felony murder and
first degree aggravated motor vehicle theft for acts committed when
he was fifteen. The trial court originally sentenced him to
concurrent sentences of life without the possibility of parole and
sixteen years in the custody of the CDOC for his respective
convictions. After Colorado amended its statutes to prohibit
mandatory life sentences without the possibility of parole for
juvenile offenders, Fernandez was resentenced to forty-six years for
the felony murder, again running concurrently with the
sixteen-year-motor-vehicle-theft sentence. Both sentences began to
run on the same date.
2 ¶3 Fernandez’s PED for his vehicle theft sentence is controlled by
section 17-22.5-403(1), C.R.S. 2024, which says that he will be
eligible for parole after completing fifty percent of his sixteen-year
sentence. But his PED for the felony murder sentence is controlled
by section 17-22.5-403(2)(c)(I), which says that a resentenced
juvenile is not entitled to a sentence reduction for his PED. In other
words, he is not entitled to any reduction of his forty-six-year
sentence before he will be eligible for parole.
¶4 The CDOC used Fernandez’s forty-six-year sentence as his
controlling sentence and calculated his PED as falling at the end of
that sentence, adjusted for other credits and reductions. Fernandez
disagreed with that calculation and filed a petition for a writ of
mandamus to direct the CDOC to recalculate his PED to give effect
to both provisions in section 17-22.5-403. His request in the
district court — repeated on appeal — is to have the CDOC make
his PED eight years earlier than the end of his forty-six-year
sentence. He argues that this will give effect to the fifty percent
reduction of his sixteen-year sentence as well as the forty-six-year
sentence itself.
3 ¶5 The CDOC filed a motion to dismiss the case under Rule
12(b)(5), arguing that Fernandez was not entitled to his requested
relief as a matter of law. The trial court granted the motion and
dismissed the case.
II. Analysis
¶6 Fernandez contends that the district court erred by denying
his petition for a writ of mandamus because the CDOC did not
apply the proper method of calculating his PED.
A. Standard of Review and Applicable Law
¶7 “We review a trial court’s ruling on a motion to dismiss de
novo, ‘applying the same standards as the trial court.’” Sch. Dist.
No. 1 v. Masters, 2018 CO 18, ¶ 13 (quoting Bly v. Story, 241 P.3d
529, 533 (Colo. 2010)). We must “accept all allegations of material
fact as true and view the allegations in the light most favorable to
the plaintiff.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.
1999). “Dismissal is proper when the plaintiff’s factual allegations
cannot support a claim as a matter of law.” Graham v. Maketa, 227
P.3d 516, 518 (Colo. App. 2010).
¶8 “Mandamus is an extraordinary remedy that requires public
officials to perform plain legal duties they owe by virtue of their
4 offices.” Owens v. Carlson, 2022 CO 33, ¶ 21 (citing Bd. of Cnty.
Comm’rs v. Cnty. Rd. Users Ass’n, 11 P.3d 432, 437 (Colo. 2000)).
“While mandamus is available to compel the performance of ‘a
purely ministerial duty involving no discretionary right’ and
requiring no ‘exercise of judgment,’ it is not available to compel the
performance of a task that ‘is discretionary or involves the exercise
of judgment.’” Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at 437).
¶9 A plaintiff seeking mandamus relief bears a demanding
burden to satisfy a three-part test: (1) the plaintiff must have “a
clear right” to the relief sought; (2) the defendant must have “a clear
duty” to perform the act requested; and (3) there can be no other
remedy available. Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at
437).
B. The Governing Sentence Determines Fernandez’s Parole Eligibility Date
¶ 10 Fernandez argues that he has a clear right to recalculation of
his PED because the CDOC’s use of the longer of his two sentences
as the parole-determining sentence is improper. He also proposes
an alternative method for calculating his PED. But because the
Colorado Supreme Court has allowed for the use of the governing
5 sentencing method in sentencing situations like Fernandez’s, we
disagree and resolve his case at this initial step.
¶ 11 The one continuous sentence rule governs Fernandez’s case:
“[W]hen any inmate has been committed under several convictions
with separate sentences, the [CDOC] shall construe all sentences as
one continuous sentence.” § 17-22.5-101, C.R.S. 2024. The
legislature did not define the phrase “one continuous sentence”;
however, the Colorado Supreme Court has approved of various
methodologies that satisfy this requirement.
¶ 12 One such method relies on the governing sentence, which
applies when an inmate has multiple sentences “with incompatible
[sentencing] provisions governing the service of those sentences.”
Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77, ¶ 13. In
such a case, the CDOC uses the sentence with the longest
incarceration effect as controlling for parole eligibility. Id.
Additionally, “[i]n the case of concurrent sentences, [the supreme
court] ha[s] 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.’” Vaughn v. Gunter, 820 P.2d 659, 661 (Colo.
6 1991) (quoting Schubert v. People, 698 P.2d 788, 795 (Colo. 1985)).
“The longest of the concurrent sentences also is described as the
‘governing’ sentence.” Id. While the CDOC is not required to use
the governing sentence methodology, it is one available tool that it
may apply. See Fetzer, ¶ 21.
¶ 13 Simply put, the governing sentence methodology applies when
a party has multiple concurrent sentences with the same start date,
controlled by conflicting parole eligibility or other sentencing
frameworks. See id. at ¶¶ 13-16; Vaughn, 820 P.2d at 661.
¶ 14 Fernandez’s two sentences fit exactly within this
methodology’s contours. Both sentences have the same start date.
Taken together, they constitute his composite continuous sentence.
His sixteen-year-vehicle-theft sentence, with parole eligibility after
he has served fifty percent of the sentence, is incompatible with his
forty-six-year-felony-murder sentence, which is ineligible for early
release. Thus, the CDOC properly used Fernandez’s felony murder
sentence as the governing sentence when determining his PED. See
Fetzer, ¶ 15.
¶ 15 We understand Fernandez’s argument that the CDOC may not
just use his longer sentence but instead must construct a single
7 composite sentence. We agree that the CDOC may not simply use
the longest sentence, see id. at ¶ 21, but that’s not what’s
happening here (though as a practical matter it has the same effect
in this case). The supreme court has held that using the governing
sentence is an allowable application of the one continuous sentence
framework rather than the impermissible use of the longest
sentence. See id. at ¶ 16. As the court said in Fetzer,
[T]he composite governing sentence has always controlled as an application of — not a substitute for — the statutorily required one continuous sentence. In those few cases in which we have approved reliance on an inmate’s longest sentence to determine the applicable credit or sentencing scheme, the longest or governing sentence has had either the earliest effective date of all the inmate’s separate sentences or an effective date coinciding with those of the inmate’s other separate sentences, and therefore the starting point of the governing sentence coincided with the starting point of the composite continuous sentence.
Id. (emphasis added) (citations omitted).
¶ 16 Because Fernandez’s concurrent sentences have the same
start date, the CDOC’s use of his longest sentence to calculate his
PED comports with the governing sentence framework and the one
continuous sentence requirement.
8 ¶ 17 Finally, Fernandez also proposes alternative sentencing
methodologies and submits well-written arguments for why he
believes they would be better than the system provided by the
legislature and implemented by the CDOC. However, “[c]ourts may
not rewrite statutes to improve them.” Yen, LLC v. Jefferson Cnty.
Bd. of Comm’rs, 2021 COA 107, ¶ 38 (quoting Dep’t of Transp. v.
City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008)). And as
the supreme court has instructed, “[w]hether or not other systems
of determining the applicable parole statutes and applying them to
the composite continuous sentences mandated by section
17-22.5-101 might also be acceptable, unless the methodology
selected by the [CDOC] contravenes a statute or the constitutional
rights of an inmate, it will be upheld.” Fetzer, ¶ 20. Fernandez’s
policy arguments therefore cannot be the basis for reversal in this
case.
¶ 18 Thus, Fernandez is not clearly entitled to a recalculation of his
PED. And because he has failed to satisfy the first prong of the
mandamus test — demonstrating a clear right to the relief
sought — we discern no error in the trial court’s dismissal of his
claim.
9 III. Disposition
¶ 19 The judgment is affirmed.
JUDGE HARRIS and JUDGE YUN concur.