The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 12, 2026
2026COA8
No. 25CA0087, Lewis v. Stancil — Criminal Law — Inmate and Parole Time Computation — One Continuous Sentence — Earned Time
A division of the court of appeals examines the impact of a
nunc pro tunc judgment of conviction on an inmate’s earned time
credits. In this case, the inmate sought mandamus relief requiring
the Department of Corrections (DOC) to apply his earned time
credits to his “one continuous sentence” — which he asserted
comprised sentences from prior convictions for which he was
incarcerated as of the nunc pro tunc date and the sentence from his
later conviction that the court backdated — even though, after the
effective date of the later conviction, the DOC applied the credits to
discharge the prior convictions. The division holds that the DOC
did not have a clear duty to apply the inmate’s earned time credits
when calculating the inmate’s parole eligibility date in the later case. The dissent concludes that the DOC was required to treat the
inmate’s discharged sentences as part of his one continuous
sentence as of the nunc pro tunc date when calculating the
inmate’s parole eligibility date in the later case. COLORADO COURT OF APPEALS 2026COA8
Court of Appeals No. 25CA0087 El Paso County District Court No. 24CV183 Honorable David A. Gilbert, Judge
Mark Lewis,
Plaintiff-Appellant,
v.
Moses Andre Stancil, the Executive Director of the Colorado Department of Corrections,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE LIPINSKY Berger*, J., concurs Taubman*, J., dissents
Announced February 12, 2026
Mark Lewis, Pro Se
Philip J. Weiser, Attorney General, Katherine Fredericks, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Judges possess the power to turn back time through “[n]unc
pro tunc” orders and judgments, which contain a retroactive
effective date. Dill v. Cnty. Ct., 541 P.2d 1272, 1273 (Colo. App.
1975). They have “retroactive legal effect through a court’s inherent
power.” People v. Sherrod, 204 P.3d 466, 468 n.3 (Colo. 2009)
(quoting Black’s Law Dictionary 1100 (8th ed. 2004)) (noting that
“[n]unc pro tunc” literally means “now for then”).
¶2 In this case, we address a novel issue regarding the effect of a
nunc pro tunc judgment of conviction on an inmate’s prior
convictions. Specifically, we examine the impact of such a
judgment on the inmate’s earned time credits that the Department
of Corrections (DOC) applied to discharge the prior convictions
between the nunc pro tunc date and the date on which the trial
court signed the nunc pro tunc judgment.
¶3 Mark Lewis appeals the district court’s entry of judgment
against him in his mandamus action against the DOC through its
Executive Director. We affirm.
I. Background
¶4 In 2016, a jury convicted Lewis of first degree murder and
tampering with physical evidence. On January 28, 2016, the trial
1 court sentenced him to life without parole in the custody of the
DOC on the first degree murder count and eighteen months on the
tampering with physical evidence count, with the latter sentence to
run concurrently with the former. At the time of sentencing, Lewis
was serving sentences for several prior convictions. Those
convictions had an effective sentence date of May 17, 2013.
¶5 Lewis appealed his conviction in the 2016 case. A division of
this court reversed his first degree murder conviction and remanded
for a new trial. People v. Lewis, (Colo. App. No. 17CA0219, May 21,
2020) (not published pursuant to C.A.R. 35(e)). (The appeal did not
affect Lewis’s conviction for tampering with physical evidence.)
¶6 On June 2, 2021, after the division reversed Lewis’s first
degree murder conviction, the DOC, through the parole board,
discharged Lewis’s previous sentences and the tampering with
physical evidence sentence based on his accumulated earned time,
and it released him to five years of mandatory parole as of April 5,
2021. The April date would have been Lewis’s mandatory release
date if he had not been serving the first degree murder sentence.
Lewis remained incarcerated pending his new trial on the murder
charge.
2 ¶7 At Lewis’s retrial in December 2021, a jury convicted him of
second degree murder. The trial court sentenced Lewis to
twenty-eight years in the custody of the DOC. The trial court
entered the sentence nunc pro tunc to January 28, 2016 (the date
Lewis was sentenced for first degree murder) and granted him credit
for 319 days of time served.
¶8 Lewis is currently serving the twenty-eight-year second degree
murder sentence and remains subject to the five-year parole term
on the discharged sentences.
¶9 In his first claim for relief, Lewis sought a writ of mandamus to
compel the DOC to recalculate his parole eligibility date (PED)
under the “one continuous sentence rule” by considering his
discharged sentences. In his second claim, he sought a writ of
mandamus requiring the DOC to retroactively award him earned
time for the time he served for the vacated first degree murder
conviction.
¶ 10 The DOC moved to dismiss Lewis’s case for failure to state
claims upon which relief can be granted under C.R.C.P. 12(b)(5).
The district court granted the motion because “Lewis failed to show
a clear right to the inclusion of [the] discharged sentences in his
3 one continuous sentence and [PED] calculations and has no clear
right to any award of earned time.”
¶ 11 Lewis moved for reconsideration and filed an untimely
response to the dismissal motion. The district court stayed the
dismissal order while it considered Lewis’s untimely response to the
motion to dismiss. The district court also conducted a hearing on
the motion to reconsider. At the conclusion of the hearing, the
district court denied the motion and, later that same day, issued an
order upholding the dismissal of Lewis’s claims. (The record does
not contain a transcript of the hearing. The lack of a transcript
would be fatal to Lewis’s appeal if, at the hearing, the district court
made findings of fact to support its ruling. See, e.g., Levin v.
Anouna, 990 P.2d 1136, 1139 (Colo. App. 1999) (holding that,
because the plaintiffs failed to include the hearing transcript in the
appellate court record, the court would presume the evidence
supported the trial court’s findings and conclusions at the hearing).
But because the hearing in this case concerned a motion to dismiss
under C.R.C.P. 12(b)(5), and therefore did not involve resolution of
disputed factual issues or findings of fact, we will consider Lewis’s
legal arguments on the merits despite the lack of a transcript. See
4 Griffis v. Branch Banking & Tr. Co., 602 S.E.2d 307, 311 (Ga. Ct.
App. 2004) (holding that the lack of a hearing transcript did not
impact the court’s ability to review the appellant’s arguments
because “the hearing was not to receive evidence but was to hear
argument of counsel”).)
¶ 12 Lewis first contends that the DOC improperly calculated his
second degree murder sentence and PED under the one continuous
sentence rule. He argues that the DOC should calculate his one
continuous sentence by construing the second degree murder
sentence together with his sentences that were in effect on the nunc
pro tunc date of January 28, 2016. If Lewis is correct, the length of
his one continuous sentence would be thirty years, eight months,
and eleven days, with a start date of May 17, 2013 — the
sentencing date in his earliest case.
¶ 13 Second, Lewis contends that he is entitled to a retroactive
application of earned time credits to the calculation of the second
degree murder sentence, meaning that his PED should be February
16, 2035, and that the DOC should reduce his prison time by
“several years.”
5 ¶ 14 Lewis asserts that, for these reasons, he pleaded claims on
which relief can be granted, and the district court therefore erred by
dismissing them. We disagree.
II. The Law
A. Standard of Review
¶ 15 “We review de novo a district court’s dismissal for failure to
state a claim under C.R.C.P. 12(b)(5), and we apply the same
standards as the district court.” N.M. v. Trujillo, 2017 CO 79, ¶ 18,
397 P.3d 370, 373; accord Dorman v. Petrol Aspen, Inc., 914 P.2d
909, 911 (Colo. 1996) (“In evaluating [a motion to dismiss under
C.R.C.P. 12(b)(5)], trial courts and appellate courts apply the same
standards.”). “Accordingly, we accept all allegations in the
complaint as true, and we view them in the light most favorable to
the [nonmoving] party.” N.M., ¶ 18, 397 P.3d at 373.
¶ 16 “The purpose of a motion under C.R.C.P. 12(b)(5) to dismiss a
complaint for failure to state a claim upon which relief can be
granted is to test the formal sufficiency of the complaint.” Dorman,
914 P.2d at 911.
6 B. Mandamus Relief
¶ 17 “Mandamus is an extraordinary remedy which may be used to
compel performance by public officials of a plain legal duty
devolving upon them by virtue of their office or which the law
enjoins as a duty resulting from the office.” State ex rel. Norton v.
Bd. of Cnty. Comm’rs, 897 P.2d 788, 791 (Colo. 1995) (quoting
Sherman v. City of Colo. Springs Plan. Comm’n, 763 P.2d 292, 295
(Colo. 1988)).
¶ 18 “The power of the courts to order executive agencies to take
any action is extremely limited.” Jones v. Colo. State Bd. of
Chiropractic Exam’rs, 874 P.2d 493, 494 (Colo. App. 1994). Indeed,
“[m]andamus lies to compel the performance of a purely ministerial
duty involving no discretionary right and not requiring the exercise
of judgment.” Verrier v. Colo. Dep’t of Corr., 77 P.3d 875, 877 (Colo.
App. 2003) (quoting Bd. of Cnty. Comm’rs v. Cnty. Rd. Users Ass’n,
11 P.3d 432, 437 (Colo. 2000)).
¶ 19 A court will only grant mandamus relief if the plaintiff satisfies
all three parts of the applicable 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 must be no other
7 available remedy.” Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.
1983). Divisions of this court have found a “clear right to the relief
sought” when the challenged action was contrary to the plain
language of a statute or regulation. Id.; see, e.g., Gandy v.
Raemisch, 2017 COA 110, ¶ 29, 405 P.3d 480, 486 (concluding that
mandamus relief was appropriate because the official’s reading of
the applicable regulation would have rendered certain language of
the regulation superfluous); Fetzer v. Exec. Dir. of Colo. Dep’t of
Corr., 2016 COA 7M, ¶ 35, 399 P.3d 742, 749 (holding that the
appellant was entitled to mandamus relief because, under the
applicable statute, the DOC “ha[d] a clear duty” to calculate the
appellant’s PED in the manner for which the appellant advocated),
aff’d in part and rev’d in part on other grounds, 2017 CO 77, 396
P.3d 1108; Asphalt Specialties, Co. v. City of Commerce City, 218
P.3d 741, 746 (Colo. App. 2009) (deciding that the appellant was
entitled to a writ of mandamus because the appellee’s actions were
contrary to the subject ordinance).
C. The One Continuous Sentence Rule
¶ 20 “For purposes of administering a criminal convict’s sentence,
this jurisdiction has long required that his separate sentences be
8 construed as one continuous sentence.” Fetzer, 2017 CO 77, ¶ 8,
396 P.3d at 1110. This principle is codified in section 17-22.5-101,
C.R.S. 2025: “[W]hen any inmate has been committed under several
convictions with separate sentences, the [DOC] shall construe all
sentences as one continuous sentence.”
¶ 21 The DOC interprets “sentence” in section 17-22.5-101 to mean
only an active sentence with a prison component — an
interpretation that the supreme court has determined is reasonable.
Diehl v. Weiser, 2019 CO 70, ¶¶ 19-26, 444 P.3d 313, 318-19.
III. Analysis
A. Lewis Did Not Establish a Clear Right to a New PED
¶ 22 Lewis’s first claim for relief fails, as a matter of law, because
he does not have “a clear right to the relief sought.” Gramiger, 660
P.2d at 1281.
¶ 23 Lewis argues that, because on January 28, 2016 — the nunc
pro tunc date of his second degree murder sentence — he was still
serving the sentences that were later discharged, the DOC must
consider those sentences and the associated earned time credits
when calculating his release date for the second degree murder
conviction. Thus, Lewis asserts he is entitled to a writ of
9 mandamus requiring the DOC to recalculate his PED by applying
the one continuous sentence rule to the discharged sentences and
the second degree murder sentence. In other words, according to
Lewis, because the discharged sentences had an effective sentence
date of May 17, 2013, the DOC should calculate his PED from that
date and not from the nunc pro tunc date of his second degree
murder sentence. We disagree.
¶ 24 As a matter of law, when the DOC discharged Lewis’s earlier
sentences on June 2, 2021, and he became subject only to the
parole term, the earlier sentences were “no longer operable in any
sense.” People v. Luther, 58 P.3d 1013, 1016 (Colo. 2002); see
§ 18-1.3-401(1)(a)(V)(D), C.R.S. 2025. For this reason, when the
trial court sentenced Lewis for second degree murder six months
later, that sentence was his one continuous sentence and he
remained subject to the parole term. The nunc pro tunc order had
no impact on Lewis’s discharged sentences because it could not
revive them. See Diehl, ¶¶ 19-26, 444 P.3d at 318-19.
¶ 25 No legal authority supports Lewis’s contention that the one
continuous sentence rule applies to sentences that were discharged
before he was sentenced in his most recent case — even if the trial
10 court entered the latter sentence nunc pro tunc. More significantly,
he does not cite any authority, and we are aware of none,
establishing that because his parole term became effective after the
nunc pro tunc date of the second degree murder sentence, the DOC
had a clear duty to look to Lewis’s discharged sentences to calculate
his one continuous sentence. See Gramiger, 660 P.2d at 1281. To
the contrary, section 18-1.3-401(1)(a)(V)(D); Luther, 58 P.3d at
1016; and Diehl, ¶¶ 19-26, 444 P.3d at 318-19, establish that,
when the DOC discharged Lewis’s earlier sentences and released
Lewis to parole, the discharged sentences no longer had active
prison components and, therefore, were of no consequence to the
calculation of his one continuous sentence.
¶ 26 In sum, the DOC did not have a clear duty to apply the
discharged sentences to the calculation of Lewis’s second degree
murder sentence, and, for that reason, Lewis did not state a claim
for mandamus relief when he requested a new PED calculation.
See Gramiger, 660 P.2d at 1281.
¶ 27 Accordingly, we conclude that Lewis has not shown a clear
right to the PED calculation he requests. See id.
11 B. Lewis Failed to Show a Clear Right to the Application of Earned Time Credits to the Calculation of His Second Degree Murder Sentence
¶ 28 Lewis contends that the DOC was required to apply his
previously awarded earned time credits to his second degree murder
sentence because the trial court made that sentence retroactive to
January 28, 2016. We disagree.
¶ 29 Lewis was not entitled to mandamus relief compelling the DOC
to apply his earned time credits when calculating his second degree
murder sentence because the application of such credits is within
the DOC’s discretion. See § 17-22.5-405(1), C.R.S. 2025 (“Earned
time, not to exceed ten days for each month of incarceration or
parole, may be deducted from the inmate’s sentence . . . .”
(emphasis added)); Renneke v. Kautzky, 782 P.2d 343, 344-45
(Colo. 1989) (concluding that the General Assembly “granted the
[DOC] discretion to withhold or deduct good time credits and to
withhold, withdraw or restore earned time credits authorized to be
awarded to inmates”); People v. Frank, 30 P.3d 664, 666 (Colo. App.
2000) (noting that “the granting of earned-time by the DOC is
discretionary”).
12 ¶ 30 Moreover, Lewis does not explain how he could benefit from
application of the earned time credits to his second degree murder
sentence in light of the DOC’s application of those very same credits
to discharge his previous sentences in June 2021. Presumably, if
Lewis prevailed on his mandamus claims, the discharge of his
previous sentences would need to be reversed so the credits could
be applied to the second degree murder conviction. But the record
does not reveal how reapplying the credits in this manner would
impact his previous sentences.
¶ 31 Accordingly, Lewis’s earned time argument also fails. See
Verrier, 77 P.3d at 878 (holding that the granting of earned time
credit “lies in the discretion of the DOC, and [a] plaintiff has no
clear right to receive, and [the DOC] ha[s] no clear duty to grant,
earned time credit”); see Gramiger, 660 P.2d at 1281.
¶ 32 Because neither of Lewis’s contentions stated a claim upon
which relief can be granted, the district court properly dismissed
them. See Negron v. Golder, 111 P.3d 538, 542 (Colo. App. 2004)
(“A motion to dismiss is properly granted when the plaintiff’s factual
allegations cannot support a claim as a matter of law.”);
C.R.C.P. 12(b)(5).
13 IV. Disposition
¶ 33 The judgment is affirmed.
JUDGE BERGER concurs.
JUDGE TAUBMAN dissents.
14 JUDGE TAUBMAN, dissenting.
¶ 34 Because of the technical application by defendant, the
Colorado Department of Corrections through its Executive Director
(the DOC), of its regulations for calculating an inmate’s earned time,
plaintiff, Mark Lewis, is being penalized for successfully appealing
his first degree murder conviction, which after a new trial, resulted
in his conviction for second degree murder. Cf. People v. Johnson,
2015 CO 70, ¶¶ 17-18, 363 P.3d 169, 176 (“[C]ourts may not ‘put a
price on an appeal.’” (quoting North Carolina v. Pearce, 395 U.S.
711, 724 (1969))). Accordingly, he has been wrongly deprived of
several years of earned time credits, even though the trial court in
his second trial made his second degree murder sentence
retroactive to the date of his first conviction with a nunc pro tunc
designation so that Lewis could be credited with such earned time.
Thus, in my view, the district court erred by dismissing Lewis’s
mandamus action, and I would reverse and remand that decision
for further proceedings.
¶ 35 More specifically, as discussed below, I believe the district
court erred by not applying (1) nunc pro tunc case law to Lewis’s
second degree murder sentence and (2) the rules for mandamus
15 relief to the circumstances presented here. Because a nunc pro
tunc order “is fully operative on the litigant’s rights as of the
prescribed effective date,” Law Offs. of Andrew L. Quiat, P.C. v.
Ellithorpe, 917 P.2d 300, 303 (Colo. App. 1995), I respectfully
disagree with the majority’s conclusion that the DOC lacked a clear
duty to consider the nunc pro tunc sentence for Lewis as part of his
one continuous sentence, § 17-22.5-101, C.R.S. 2025, and apply
his previously awarded earned time credits to that sentence and to
reduce his parole eligibility date (PED) by “several years.”
¶ 36 As a preliminary matter, I largely agree with the majority’s
recitation of the factual background. Even so, I believe the
following additional details warrant consideration.
¶ 37 On direct appeal, a division of this court reversed Lewis’s first
degree murder conviction, as the majority notes. People v. Lewis,
(Colo. App. No. 17CA0219, May 21, 2020) (not published pursuant
to C.A.R. 35(e)). The division reversed that conviction because the
trial court erred by providing an initial aggressor instruction
unsupported by the evidence. Id., slip op. at 7-18.
16 ¶ 38 Further, Lewis alleged in his mandamus complaint, whose
allegations we must accept as true, see Peña v. Am. Fam. Mut. Ins.
Co., 2018 COA 56, ¶ 15, 463 P.3d 879, 882, that, while the direct
appeal was pending, the DOC (pursuant to its policy) did not
calculate either his “time on” the tampering with physical evidence
sentence or his earned time credits for the life without parole
sentence for first degree murder. Indeed, the DOC could not do so
because earned time credits may not accrue to a life without parole
sentence. DOC Admin. Reg. 625-02(IV)(C)(1)(d). Lewis alleged that
after the division reversed his first degree murder conviction, the
DOC calculated his earned time and PED for his tampering with
physical evidence sentence, as well as for the sentences from his
previous convictions, resulting in the discharge of his prior
sentences.
¶ 39 As the majority notes, the second trial resulted in the trial
court imposing Lewis’s sentence of twenty-eight years for second
degree murder nunc pro tunc to January 28, 2016, the original
sentence date. However, in my view, additional facts in the record
of Lewis’s criminal case are relevant to his complaint and request
for mandamus relief. See Norton v. Rocky Mountain Planned
17 Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334 (“When
considering a motion to dismiss for failure to state a claim, we may
consider . . . matters proper for judicial notice.”); see also Walker v.
Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006) (“[T]he general
rule is that a court is permitted to take judicial notice of certain
matters without converting a motion to dismiss to one for summary
judgment.”).
¶ 40 First, at the second trial, as noted, the jury convicted Lewis of
second degree murder. Yet the jury also acquitted him of the
charge of first degree murder. This suggests that at the first trial,
but for the instructional error, the jury might well not have
convicted Lewis of first degree murder, and he would not have
received a sentence for life without parole in 2016.
¶ 41 Second, the pleadings following the sentencing at the second
trial showed that the trial court amended the mittimus multiple
times. The court did so because the DOC raised duplication
concerns about Lewis’s presentence confinement credits due to the
nunc pro tunc provision. During this amendment process, the trial
court stated in an order that it had issued the sentence nunc pro
tunc to ensure that Lewis would receive good time or earned time
18 credits retroactive to the date of his original sentence. In pertinent
part, the final amended mittimus (1) granted Lewis presentence
confinement credit; (2) stated that his sentence of twenty-eight
years for second degree murder ran concurrently to Lewis’s prior
sentences; and (3) was issued nunc pro tunc to the original
sentence date.
II. Nunc Pro Tunc Law
¶ 42 Lewis contends that the trial court’s nunc pro tunc order from
the second trial must be applied to credit him with earned time that
he would have earned if he hadn’t been wrongly convicted of first
degree murder. I agree.
¶ 43 Nunc pro tunc (“Latin [for] ‘now for then’”) is defined as
“[h]aving retroactive legal effect through a court’s inherent power.”
Black’s Law Dictionary 1283 (12th ed. 2024). Colorado’s appellate
cases have described two aspects of a nunc pro tunc order.
¶ 44 One aspect is to “ameliorate harm done to a party by court
delays or clerical errors.” Guarantee Tr. Life Ins. Co. v. Est. of
Casper, 2018 CO 43, ¶ 27, 418 P.3d 1163, 1173; see People v.
Sherrod, 204 P.3d 466, 468 n.3 (Colo. 2009). This means that a
nunc pro tunc order “is normally made to correct an omission from
19 the court records.” People v. Mascarenas, 666 P.2d 101, 111 (Colo.
1983) (emphasis added); see In re Estate of Becker, 32 P.3d 557,
559 (Colo. App. 2000) (“Court orders entered nunc pro tunc . . . are
normally for the purpose of correcting an omission from the court
records . . . .” (emphasis added)), aff’d sub nom., In re Estate of
DeWitt, 54 P.3d 849 (Colo. 2002); see also United States v.
Carpenter, 164 F. App’x 707, 709 (10th Cir. 2006) (“Generally
speaking, such orders are reserved for situations where a clerical
error in a judgment, order, or other part of a record requires
correction.” (emphasis added)). This aspect is clearly not at issue
here because Lewis does not assert a clerical error or an omission
from court records.
¶ 45 The second and broader aspect of nunc pro tunc orders, which
applies here, provides that such orders are “given the same force
and effect as if entered at the time the court’s decision was
originally rendered.” Dill v. Cnty. Ct., 541 P.2d 1272, 1273 (Colo.
App. 1975); see Stone v. Currigan, 334 P.2d 740, 743 (Colo. 1959)
(“Except as to the rights of third persons, a judgment nunc pro tunc
is retrospective, and has the same force and effect, to all intents and
purposes, as though it had been entered at the time when the
20 judgment was originally rendered.” (emphasis added) (quoting 49
C.J.S. Judgments § 121 (1947))); 49 C.J.S. Judgments § 162,
Westlaw (database updated Dec. 2025) (same); Ellithorpe, 917 P.2d
at 303 (“[A] nunc pro tunc order operates retrospectively and
generally is fully operative on the litigant’s rights as of the prescribed
effective date . . . .” (emphasis added)). This second aspect of nunc
pro tunc case law enables courts to afford substantive relief to
litigants in appropriate cases. Cf. Perdew v. Perdew, 64 P.2d 602,
604 (Colo. 1936) (holding that a nunc pro tunc order may be
entered “where the cause was ripe for judgment and one could have
been entered at the date to which it is to relate back, provided [any]
failure is not the fault of the moving party” (emphasis added)).
¶ 46 The district court concluded that the DOC may disregard
Lewis’s prior sentences because they were discharged and could not
be revived by the nunc pro tunc order. See People v. Luther, 58
P.3d 1013, 1016 (Colo. 2002); Diehl v. Weiser, 2019 CO 70,
¶¶ 19-26, 444 P.3d 313, 318-19. I agree that a nunc pro tunc order
in one case has no impact on the operability of sentences issued in
other cases.
21 ¶ 47 However, I respectfully disagree that the discharge of Lewis’s
prior sentences is relevant to the retrospective effect of the nunc pro
tunc sentence for second degree murder. Cf. Robbins v. Goldberg,
185 P.3d 794, 797 (Colo. 2008) (holding that, where a court
mistakenly did not enter judgment properly, the appropriate remedy
was a nunc pro tunc judgment). Rather, we must give the nunc pro
tunc sentence “the same force and effect as if entered” on the
original sentence date. Dill, 541 P.2d at 1273 (emphasis added).
That means treating the sentence “as if” it were entered
concurrently with the prior sentences when they were active. Id.
Conceiving of Lewis’s prior sentences as if they were active in 2016
for purposes of the nunc pro tunc sentence does not require
reversing the discharge of those prior sentences. Rather, the DOC
should determine how the credits would have been applied with the
nunc pro tunc sentence as part of Lewis’s one continuous sentence,
rather than recreating past events in a way that attempts to
reinstate each prior sentence. Cf. United States v. Daniels, 902 F.2d
1238, 1240 (7th Cir. 1990) (holding that a nunc pro tunc order may
not rewrite history).
22 ¶ 48 It follows that the nunc pro tunc sentence must be treated as
running concurrently with the prior sentences still in effect in 2016.
Thus viewed, the DOC is then obligated to address the nunc pro
tunc sentence as part of one continuous sentence as of the date of
the prior sentences. See § 17-22.5-101. Accordingly, this one
continuous sentence that includes the nunc pro tunc sentence of
twenty-eight years must receive the PED and earned time credits
computations that the DOC had already applied to Lewis’s prior
sentences. See Diehl, ¶ 15, 444 P.3d at 318.
¶ 49 I conclude that these details sufficiently established that the
mittimus required the DOC to treat the nunc pro tunc sentence the
same as the prior sentences, meaning as though it had been issued
concurrently with the prior sentences. See Meredith v. Zavaras, 954
P.2d 597, 603 (Colo. 1998) (To “permit the DOC to decline to comply
with [district court orders] . . . would undermine the power of the
judicial system to interpret the laws and impose criminal
sentences.”); see also People v. Pate, 878 P.2d 685, 694 (Colo. 1994)
(“It is axiomatic that the judiciary has the exclusive power to impose
sentences which fall within the limits determined by the General
Assembly.”).
23 III. Mandamus Relief
¶ 50 In my view, the district court erred by concluding that Lewis
was not entitled to mandamus relief.
¶ 51 Mandamus only applies here if Lewis has a clear right to relief,
the DOC has a clear duty to perform, and Lewis has no other
available remedy. See Gramiger v. Crowley, 660 P.2d 1279, 1281
(Colo. 1983).
A. Clear Right to Relief and Duty to Perform
¶ 52 Despite multiple amendments, the mittimus consistently
stated that the nunc pro tunc sentence of twenty-eight years must
run concurrently with the prior sentences. The trial court further
stated that the inclusion of the nunc pro tunc provision on the
mittimus was intended to ensure that the DOC would entitle Lewis
to good or earned time credits retroactively to the date of his
original sentence. Also, the DOC was aware of the nunc pro tunc
provision’s retrospective effect given that it raised concerns several
times about the nunc pro tunc provision’s impact on Lewis’s
presentence confinement credits.
¶ 53 In this mandamus action, Lewis requested that the district
court compel the DOC to adhere to computations it had already
24 made and entered in his prior sentences. Thus, he has a clear right
for the DOC to treat his nunc pro tunc sentence as part of one
continuous sentence pursuant to the trial court’s nunc pro tunc
order for purposes of earned time and PED calculations for the
reasons already discussed. See Vaughn v. Gunter, 820 P.2d 659,
662 (Colo. 1991) (holding that section 17-22.5-101 mandates that
the DOC “construe all sentences imposed on an inmate as one
continuous sentence”); see also Fetzer v. Exec. Dir. of Colo. Dep’t of
Corr., 2016 COA 7M, ¶ 35, 399 P.3d 742, 749 (“[S]ection
17-22.5-101 imposes on DOC a duty to calculate the correct PED
for inmates.”), aff’d in part and rev’d in part on other grounds, 2017
CO 77, ¶ 21, 396 P.3d 1108, 1114.
¶ 54 For these same reasons, the DOC had an obligation under the
trial court’s order to adhere to the one continuous sentence statute.
§ 17-22.5-101; see Gramiger, 660 P.2d at 1281. In this case, such
adherence amounts to a ministerial function — not a discretionary
act — applying already computed earned time credits to the nunc
pro tunc sentence. See Gramiger, 660 P.2d at 1281.
¶ 55 Further, the DOC had no discretion to withdraw Lewis’s
earned time credits because they had vested under section
25 17-22.5-405(3), C.R.S. 2025 (stating that earned time deduction
resulting from an annual review “shall vest upon being granted”).
The DOC applied Lewis’s earned time credits when discharging his
prior sentences. By applying earned time credits to the prior
sentences, which are part of Lewis’s one continuous sentence for
the reasons stated above, those earned time credits necessarily
vested. Thus, Lewis has a clear right to have the credits also apply
to his nunc pro tunc sentence of twenty-eight years. See
§§ 17-22.5-101, -405(3); see also Ankeney v. Raemisch, 2015 CO
14, ¶ 20, 344 P.3d 847, 854 (holding that reductions specified in
section 17-22.5-405 automatically reduce the term imposed on an
offender).
¶ 56 In my opinion, the unique circumstances presented here,
viewed in the light most favorable to Lewis, establish that Lewis has
a clear right to relief, and the DOC has a clear duty to apply the
PED and earned time credits calculations that Lewis seeks. See
Gramiger, 660 P.2d at 1281.
B. No Other Remedies Available
¶ 57 Last, no other remedies are available to Lewis, and the DOC
has not suggested any that could apply. See id. Indeed, if the error
26 in the first trial had not occurred, Lewis may well have been
convicted of second degree murder, and without a sentence to life
without parole, he would have received the PED computation and
earned time credits already applied to his previous sentences.
Precluding him from having the opportunity to pursue such relief
essentially amounts to penalizing him for successfully appealing his
first degree murder conviction. See Johnson, ¶¶ 17-18, 363 P.3d at
176.
¶ 58 While the barrier to providing mandamus relief is high, it is
not insurmountable. Although mandamus relief is infrequently
granted, it has been deemed appropriate when a sentence
calculation by the DOC contradicts the one continuous sentence
statute. See Fetzer, ¶¶ 29-36, 399 P.3d at 748-49 (holding that the
inmate had a clear right to mandamus relief when the DOC
improperly construed the one continuous sentence statute to
calculate the inmate’s PED); Fields v. Suthers, 984 P.2d 1167, 1173
(Colo. 1999) (finding that mandamus relief was appropriate and
that the DOC had a duty to correctly calculate the inmate’s PED).
Thus, it is also appropriate here.
27 IV. Conclusion
¶ 59 Accordingly, I believe nunc pro tunc law must be applied to
Lewis’s twenty-eight-year sentence and that he is entitled to
mandamus relief. See Fields, 984 P.2d at 1173. I thus conclude
that Lewis has stated plausible grounds for relief and would reverse
the judgment of the district court and remand for further
proceedings.