24CA2245 Green v Bauby 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2245 El Paso County District Court No. 24CV322 Honorable David Prince, Judge
Christopher Green,
Plaintiff-Appellant,
v.
August Bauby, Manager of Time and Release Operations for the Colorado Department of Corrections,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Lum and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Christopher Green, Pro Se
Philip J. Weiser, Attorney General, Rebekah Ryan, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Christopher Green, appeals the district court’s ruling
denying his petition for mandamus relief pursuant to
C.R.C.P. 106(a)(2). We affirm.
I. Background and Procedural History
¶2 In 2005, Green was sentenced in Larimer District Court Case
No. 04CR1242 (the 2004 case) to six years in the custody of the
Department of Corrections (DOC) to be followed by a mandatory
parole period of three years. In 2010, Green was released and
began serving his parole. While out on parole, Green committed
three new offenses in Larimer County.
¶3 In 2012, Green pleaded guilty to two charges in Larimer
District Court Case No. 10CR1456 (the 2010 case). On the first
charge, the court sentenced him to twenty-eight years in the
custody of the DOC to be followed by a mandatory parole period of
five years. On the second charge, the court sentenced him to twelve
years in the custody of the DOC to be followed by a mandatory
parole period of three years. Green was separately sentenced in
Larimer District Court Case No. 11CR1499 (the first 2011 case) to
six years in the custody of the DOC to be followed by a mandatory
parole period of two years. The court ordered these three sentences
1 to run concurrently with each other.1 Approximately one year later,
Green pleaded guilty to a class 5 felony that occurred in the
detention center. He was then sentenced in Larimer District Court
Case No. 11CR1746 (the second 2011 case) to two years in the
custody of the DOC to be followed by a mandatory parole period of
two years. The court ordered this sentence to run consecutively
with the sentences for the 2010 case and the first 2011 case.
¶4 Green filed a petition for mandamus relief arguing that the
court miscalculated his parole eligibility date (PED) when it applied
Diehl v. Weiser, 2019 CO 70, as opposed to Nowak v. Suthers, 2014
CO 14. Bauby filed a motion to dismiss, which the court granted
after finding Diehl was properly applied to the PED calculation.
II. PED Calculation
¶5 Green argues the district court erred by granting Bauby’s
motion to dismiss because it failed to address whether Green
discharged his parole for the 2004 case before his sentences were
imposed in his three later cases. He contends that the parole
1 Green received 469 days of presentence confinement credit for his
sentences in the 2010 case. He received 113 days of presentence confinement credit for his sentence in the first 2011 case.
2 component of his sentence was not discharged, and therefore, the
original sentencing date must be included as part of his “one
continuous sentence” to calculate his PED. We disagree.
A. Standard of Review and Applicable Law
¶6 We review a trial court’s ruling on a motion to dismiss de novo.
Winston v. Polis, 2021 COA 90 ¶ 6. Dismissal is appropriate unless
the complaint alleges sufficient facts that, taken as true,
demonstrate a plausible basis to support a claim for relief. Id.; see
C.R.C.P. 12(b)(5).
¶7 Relief under C.R.C.P. 106(a)(2) is an extraordinary remedy to
compel the performance of a nondiscretionary ministerial duty.
Jefferson Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016
COA 10, ¶ 10. To grant a mandamus claim, “(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 must be no
other available remedy.” Bd. of Cnty. Comm’rs v. Cnty. Rd. Users
Ass’n, 11 P.3d 432, 437 (Colo. 2000).
¶8 Under section 17-22.5-101, C.R.S. 2025, “when any inmate
has been committed under several convictions with separate
sentences, the [DOC] shall construe all sentences as one
3 continuous sentence.” “This ‘one-continuous-sentence’ rule
requires the DOC, among other things, to combine the inmate’s
sentences into one composite continuous sentence, and then
determine when that continuous sentence begins to run.” Diehl,
¶ 15.
¶9 Any person who receives a sentence for a class 2, 3, 4, 5, or 6
felony “shall be eligible for parole after such person has served fifty
percent of the sentence imposed.” § 17-22.5-403(1), C.R.S. 2025.
But “any person convicted and sentenced for . . . aggravated
robbery, committed on or after July 1, 2004, but before January 1,
2025, shall be eligible for parole after such person has served
seventy-five percent of the sentence imposed.”
§ 17-22.5-403(2.5)(a). When an inmate is subject to multiple
sentences that fall under different subsections of section
17-22.5-403, the DOC must “employ[] a hybrid system that
effectuates both of the calculation rules.” Owens v. Carlson, 2022
CO 33, ¶ 5.
B. Analysis
¶ 10 There are three cases that are relevant to Green’s appeal.
First, in Executive Director of Colorado Department of Corrections v.
4 Fetzer, 2017 CO 77, the supreme court addressed the calculation of
the PED for an inmate serving multiple concurrent sentences with
different effective dates. The supreme court concluded that the
DOC should have calculated the PED based on the earliest effective
date of the inmate’s separate sentences in his one continuous
sentence, rather than the governing sentence. Fetzer, ¶¶ 16-18.
Next, in Nowak, the supreme court concluded that the DOC must
aggregate consecutive sentences when calculating an inmate’s PED,
even when doing so results in the inmate becoming parole eligible
before serving the minimum percentage of the sentence required by
section 17-22.5-403. Nowak, ¶¶ 29, 40. Finally, in Diehl, the
supreme court concluded that the PED “for an inmate who was
reincarcerated for a parole violation and is sentenced for additional
offenses should be calculated using the beginning of the period of
mandatory parole as the start of the inmate’s one continuous
sentence.” Diehl, ¶ 26.
¶ 11 All three of these cases apply to Green. Fetzer applies to
Green’s concurrent sentences in the 2010 case and the first 2011
case. And Nowak applies to Green’s consecutive sentence in the
second 2011 case. Together, these cases explain that Green’s
5 sentences must be aggregated into one sentence length beginning
from the earliest sentence’s effective date.2 Finally, Diehl answers
what the earliest sentence’s effective date is when an inmate is
released to mandatory parole. The court made clear that the
imprisonment component of the sentence is discharged when the
release occurs and is no longer considered part of the one
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24CA2245 Green v Bauby 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2245 El Paso County District Court No. 24CV322 Honorable David Prince, Judge
Christopher Green,
Plaintiff-Appellant,
v.
August Bauby, Manager of Time and Release Operations for the Colorado Department of Corrections,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Lum and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Christopher Green, Pro Se
Philip J. Weiser, Attorney General, Rebekah Ryan, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Christopher Green, appeals the district court’s ruling
denying his petition for mandamus relief pursuant to
C.R.C.P. 106(a)(2). We affirm.
I. Background and Procedural History
¶2 In 2005, Green was sentenced in Larimer District Court Case
No. 04CR1242 (the 2004 case) to six years in the custody of the
Department of Corrections (DOC) to be followed by a mandatory
parole period of three years. In 2010, Green was released and
began serving his parole. While out on parole, Green committed
three new offenses in Larimer County.
¶3 In 2012, Green pleaded guilty to two charges in Larimer
District Court Case No. 10CR1456 (the 2010 case). On the first
charge, the court sentenced him to twenty-eight years in the
custody of the DOC to be followed by a mandatory parole period of
five years. On the second charge, the court sentenced him to twelve
years in the custody of the DOC to be followed by a mandatory
parole period of three years. Green was separately sentenced in
Larimer District Court Case No. 11CR1499 (the first 2011 case) to
six years in the custody of the DOC to be followed by a mandatory
parole period of two years. The court ordered these three sentences
1 to run concurrently with each other.1 Approximately one year later,
Green pleaded guilty to a class 5 felony that occurred in the
detention center. He was then sentenced in Larimer District Court
Case No. 11CR1746 (the second 2011 case) to two years in the
custody of the DOC to be followed by a mandatory parole period of
two years. The court ordered this sentence to run consecutively
with the sentences for the 2010 case and the first 2011 case.
¶4 Green filed a petition for mandamus relief arguing that the
court miscalculated his parole eligibility date (PED) when it applied
Diehl v. Weiser, 2019 CO 70, as opposed to Nowak v. Suthers, 2014
CO 14. Bauby filed a motion to dismiss, which the court granted
after finding Diehl was properly applied to the PED calculation.
II. PED Calculation
¶5 Green argues the district court erred by granting Bauby’s
motion to dismiss because it failed to address whether Green
discharged his parole for the 2004 case before his sentences were
imposed in his three later cases. He contends that the parole
1 Green received 469 days of presentence confinement credit for his
sentences in the 2010 case. He received 113 days of presentence confinement credit for his sentence in the first 2011 case.
2 component of his sentence was not discharged, and therefore, the
original sentencing date must be included as part of his “one
continuous sentence” to calculate his PED. We disagree.
A. Standard of Review and Applicable Law
¶6 We review a trial court’s ruling on a motion to dismiss de novo.
Winston v. Polis, 2021 COA 90 ¶ 6. Dismissal is appropriate unless
the complaint alleges sufficient facts that, taken as true,
demonstrate a plausible basis to support a claim for relief. Id.; see
C.R.C.P. 12(b)(5).
¶7 Relief under C.R.C.P. 106(a)(2) is an extraordinary remedy to
compel the performance of a nondiscretionary ministerial duty.
Jefferson Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016
COA 10, ¶ 10. To grant a mandamus claim, “(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 must be no
other available remedy.” Bd. of Cnty. Comm’rs v. Cnty. Rd. Users
Ass’n, 11 P.3d 432, 437 (Colo. 2000).
¶8 Under section 17-22.5-101, C.R.S. 2025, “when any inmate
has been committed under several convictions with separate
sentences, the [DOC] shall construe all sentences as one
3 continuous sentence.” “This ‘one-continuous-sentence’ rule
requires the DOC, among other things, to combine the inmate’s
sentences into one composite continuous sentence, and then
determine when that continuous sentence begins to run.” Diehl,
¶ 15.
¶9 Any person who receives a sentence for a class 2, 3, 4, 5, or 6
felony “shall be eligible for parole after such person has served fifty
percent of the sentence imposed.” § 17-22.5-403(1), C.R.S. 2025.
But “any person convicted and sentenced for . . . aggravated
robbery, committed on or after July 1, 2004, but before January 1,
2025, shall be eligible for parole after such person has served
seventy-five percent of the sentence imposed.”
§ 17-22.5-403(2.5)(a). When an inmate is subject to multiple
sentences that fall under different subsections of section
17-22.5-403, the DOC must “employ[] a hybrid system that
effectuates both of the calculation rules.” Owens v. Carlson, 2022
CO 33, ¶ 5.
B. Analysis
¶ 10 There are three cases that are relevant to Green’s appeal.
First, in Executive Director of Colorado Department of Corrections v.
4 Fetzer, 2017 CO 77, the supreme court addressed the calculation of
the PED for an inmate serving multiple concurrent sentences with
different effective dates. The supreme court concluded that the
DOC should have calculated the PED based on the earliest effective
date of the inmate’s separate sentences in his one continuous
sentence, rather than the governing sentence. Fetzer, ¶¶ 16-18.
Next, in Nowak, the supreme court concluded that the DOC must
aggregate consecutive sentences when calculating an inmate’s PED,
even when doing so results in the inmate becoming parole eligible
before serving the minimum percentage of the sentence required by
section 17-22.5-403. Nowak, ¶¶ 29, 40. Finally, in Diehl, the
supreme court concluded that the PED “for an inmate who was
reincarcerated for a parole violation and is sentenced for additional
offenses should be calculated using the beginning of the period of
mandatory parole as the start of the inmate’s one continuous
sentence.” Diehl, ¶ 26.
¶ 11 All three of these cases apply to Green. Fetzer applies to
Green’s concurrent sentences in the 2010 case and the first 2011
case. And Nowak applies to Green’s consecutive sentence in the
second 2011 case. Together, these cases explain that Green’s
5 sentences must be aggregated into one sentence length beginning
from the earliest sentence’s effective date.2 Finally, Diehl answers
what the earliest sentence’s effective date is when an inmate is
released to mandatory parole. The court made clear that the
imprisonment component of the sentence is discharged when the
release occurs and is no longer considered part of the one
continuous sentence for purposes of calculating the PED. Diehl,
¶ 26.
¶ 12 We reject Green’s contention that Diehl does not apply here
“because [Diehl] concerned an inmate[’]s parole before his
mandatory release date,” whereas Green “was paroled on his
mandatory release date.” This is a distinction without a difference.
In Diehl, the supreme court succinctly summarized the issue before
it as “how the DOC should calculate a new parole eligibility date
2 Green’s twenty-eight-year sentence in the 2010 case is for
aggravated robbery and therefore subject to the seventy-five percent minimum for parole eligibility. See § 17-22.5-403(2.5)(a), C.R.S. 2025. Green’s sentence in the second 2011 case is subject to the fifty percent minimum for parole eligibility. See § 17-22.5-403(1). Because these are “consecutive sentences, at least one of which is subject to one calculation rule and at least one of which is subject to a different calculation rule,” Owens v. Carlson, 2022 CO 33, ¶ 44 n.5, Green’s parole eligibility date for his one continuous sentence is calculated using a hybrid system, see id. at ¶ 5.
6 when an offender who is on parole violates conditions of parole and
is both reincarcerated to serve the remainder of his parole period
and also convicted of additional offenses for conduct that occurred
while he was paroled.” Id. at ¶ 16 (emphasis added). Notably, the
supreme court did not differentiate between an inmate who is
released from prison at the discretion of the state board of parole
and an inmate who is paroled on their mandatory release date, and
we will not read in such language.
¶ 13 Accordingly, the district court did not err when it applied Diehl
to Green’s case. Moreover, because Green’s prison component of
his sentence for the 2004 case was discharged when he was
released on parole, the DOC correctly calculated his PED based on
the date of his release to mandatory parole. Thus, the district court
did not err by granting the motion to dismiss.3
III. Disposition
¶ 14 The judgment is affirmed.
JUDGE LUM and JUDGE MOULTRIE concur.
3 Though Green raised an ex post facto challenge in the district
court, he does not do so on appeal. Thus, that claim is deemed abandoned and will not be addressed further. See Gandy v. Williams, 2019 COA 118, ¶ 38 n.4.