Peo v. Owings

• Court: Colorado Court of Appeals
• Decided: August 14, 2025
• Docket: 24CA0310
• Status: Unpublished

Opinion

24CA0310 Peo v Owings 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0310 Arapahoe County District Court No. 03CR818 Honorable Jacob A. Edson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jefferson Wade Owings,

Defendant-Appellant.

ORDER AFFIRMED

Division II Opinion by JUDGE HARRIS Fox and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jefferson Wade Owings, Pro Se ¶1 Defendant, Jefferson Wade Owings, appeals the denial of his

Crim. P. 35(a) motion. We affirm.

I. Background

¶2 A jury found Owings guilty of sexually assaulting his daughter

on multiple occasions between April 2001 and January 2002.1 The

court sentenced Owings under the Colorado Sex Offender Lifetime

Supervision Act of 1998 (SOLSA) to prison terms as follows:

• sixteen years to life on counts 1-4: sexual assault on an

at-risk juvenile by one in a position of trust, class 2

felonies;

• ten years to life on counts 5-8: aggravated incest, class 3

• six years to life on count 9: attempted sexual assault on

an at-risk juvenile by one in a position of trust, a class 3

felony; and

• six years to life on count 10: attempted aggravated incest,

a class 4 felony.

1 Owings was also convicted of contributing to the delinquency of a

minor and misdemeanor child abuse, but those convictions are not at issue in this appeal.

1 ¶3 The court also imposed parole terms of twenty years to life on

counts 1-9 (the sexual assault, incest, and attempted sexual

assault counts) and ten years to life on count 10 (the attempted

incest count). During the sentencing hearing, the court referred to

“mandatory parole,” but the mittimus indicates only that for

“COUNTS 1-9 PAROLE IS 20 YEARS TO LIFE” and for “COUNT 10

[PAROLE] IS 10 YEARS TO LIFE.”

¶4 Owings’ convictions and sentences were affirmed on direct

appeal. People v. Owings, (Colo. App. No. 06CA1179, Dec. 16,

2010) (not published pursuant to C.A.R. 35(f)).

¶5 He later filed two postconviction motions — a Crim. P. 35(c)

motion challenging the constitutionality of his convictions and a

Crim. P. 35(a) motion challenging the lawfulness of his consecutive

sentences. The district court summarily denied the motions, and

the orders were affirmed on appeal. People v. Owings, (Colo. App.

No. 11CA0976, Mar. 15, 2012) (not published pursuant to C.A.R.

35(f)); People v. Owings, (Colo. App. No. 14CA2156, Sept. 15, 2016)

(not published pursuant to C.A.R. 35(e)).

¶6 In 2023, Owings filed the pro se Crim. P. 35(a) motion at issue

here. He argued that his sentences are illegal because (1) they

2 include, as a component, mandatory rather than discretionary

parole; and (2) they were improperly enhanced under the crime of

violence and/or the extraordinary risk crime statutes.

¶7 The district court denied the motion in a brief written order

without a hearing.2

II. Analysis

¶8 In his pro se appeal, Owings reasserts the same arguments

raised in his Crim. P. 35(a) motion.3

A. Standard of Review

¶9 Crim. P. 35(a) allows a defendant in a criminal case to file a

postconviction motion to correct an illegal sentence — that is, a

sentence that fails to comply with statutory requirements.

2 On appeal, Owings says that the district court failed to enter

sufficient written findings of fact and conclusions of law as required by Crim. P. 35(c)(3)(IV). But Owings’ motion was filed pursuant to Crim. P. 35(a), which does not include a similar provision. And because Owings’ motion raised only issues of law, a hearing was not required. See People v. Lepine, 744 P.2d 81, 83 (Colo. App. 1987).

3 In his brief on appeal, Owings provided a short statement

asserting that the court erred in denying his motion and then attached the motion to his opening brief. True, as the People point out, the brief does not comply with our appellate rules, but because we review the denial of a Crim. P. 35(a) motion by examining the allegations and the court’s order de novo, we can effectively and efficiently resolve this appeal on the merits and elect to do so.

3 Tennyson v. People, 2025 CO 31, ¶¶ 24, 25. A claim that parole

was imposed in violation of the statutory scheme outlined by the

legislature is an illegal sentence claim properly brought under Crim.

P. 35(a). People v. Rockwell, 125 P.3d 410, 416 (Colo. 2005).

¶ 10 An illegal sentence claim can be raised at any time. People v.

Jenkins, 2013 COA 76, ¶ 11. We review de novo the legality of a

sentence and the summary denial of a Crim. P. 35(a) motion.

People v. Tennyson, 2023 COA 2, ¶ 9, aff’d, 2025 CO 31.

B. Owings’ Parole Terms

¶ 11 Owings contends that, for each of his sentences, the court

should have imposed discretionary rather than mandatory parole.

To provide context for our disposition, we briefly explain the

evolution of the parole scheme in Colorado.

¶ 12 Generally speaking, before 1993, parole was granted at the

discretion of the parole board: After an offender became eligible for

parole, it was within the board’s discretion to decide whether, when,

and for how much of the remainder of his prison sentence to release

him to parole supervision. See Martin v. People, 27 P.3d 846,

849-50 (Colo. 2001). In 1993, the legislature adopted a scheme of

mandatory parole for convicted felons. Id. at 850; Ch. 322, sec. 7,

4 § 18-1-105(1)(a)(V), 1993 Colo. Sess. Laws 1981-82. Under this

scheme, the length of a prison term and the predetermined parole

term became separate components of the penalty imposed by the

court. Martin, 27 P.3d at 849-50.

¶ 13 But while the new mandatory parole scheme applied to most

felons, the legislature maintained discretionary parole for sex

offenders. Id. at 850; see § 17-2-201(5)(a), C.R.S. 2024.

¶ 14 Under a discretionary parole system, an offender is released

from prison to parole for the remainder of the unserved portion of

his prison sentence. Martin, 27 P.3d at 855, 858 (“[T]he period of

parole granted by the parole board cannot be longer than the

unserved portion of the sentence of incarceration.”). If the offender

violates his parole conditions, he may be returned to custody and

forced to serve up to the remaining term of his sentence. Id. at 858.

¶ 15 Under a mandatory parole scheme, on the other hand, an

offender does not begin serving a period of parole until his prison

sentence has been fully served, or the parole board determines that

he is ready for parole. Id. But once released on parole, he is

deemed to have discharged his sentence to imprisonment and is

then serving only his predetermined parole term. Id. Thus, if the

5 offender violates his parole conditions, he can be returned to prison

for a period of confinement unrelated to the original sentence. Id.

¶ 16 In 1998, the legislature enacted SOLSA, which created a new

indeterminate sentencing scheme for sex offenders and eliminated

the designation of sex offender parole as discretionary or

mandatory. See Ch. 303, sec. 1, §§ 16-13-801 to -812, 1998 Colo.

Sess. Laws 1278-88 (codified as amended at §§ 18-1.3-1001 to -

1012, C.R.S. 2024). Under SOLSA, a sex offender is eligible for

parole after serving the minimum period of incarceration for his

indeterminate sentence. § 18-1.3-1006(1)(a), C.R.S. 2024. If he is

granted parole at the discretion of the parole board, his sentence of

incarceration continues and is not deemed discharged until the

board releases him from parole. § 18-1.3-1006(1)(b). Before an

offender can be released from parole, he must serve the mandatory

minimum parole period prescribed by SOLSA. People v. Tucker, 194

P.3d 503, 504 (Colo. App. 2008). In this way, the SOLSA parole

system combines elements of both discretionary and mandatory

parole schemes, but neither term accurately describes the statutory

requirements. Id.

6 ¶ 17 Because Owings committed sex offenses after November 1,

1998, he was sentenced under SOLSA. See § 18-1.3-1012; People

v. Manaois, 2021 CO 49, ¶ 36 (SOLSA applies “to any ‘sex

offense’ . . . committed on or after November 1, 1998.”).

¶ 18 An offender sentenced under SOLSA is subject to SOLSA’s

parole scheme: “As to any person sentenced for conviction of a sex

offense pursuant to [SOLSA], committed on or after November 1,

1998, the board shall grant parole or refuse to grant parole, fix the

conditions thereof, and set the duration of the term of parole

granted pursuant to [SOLSA].” § 17-2-201(5)(a.7).4 Subsection

1006(b) of SOLSA, in turn, sets the mandatory periods of parole

according to the class of felony of which the offender was convicted.

4 Owings argues that because he committed the sexual offenses

between April 2001 and January 2002, subsection (5)(a.5), not subsection (5)(a.7), of section 17-2-201, C.R.S. 2024, applies. But subsection (5)(a.5) applies to sex offenders who committed sex offenses between July 1996 and July 2002 who were not sentenced under SOLSA. See, e.g., People v. Tolbert, 216 P.3d 1, 3 (Colo. App. 2007) (defendant convicted of a class 5 felony sexual offense committed in June 2002, a crime not subject to SOLSA sentencing, should have been sentenced to discretionary parole pursuant to section 17-2-201(5)(a.5)). Subsection (5)(a.5) exempts offenders who are covered by subsection (5)(a.7) — that is, offenders who are sentenced under SOLSA. See § 17-2-201(5)(a.5) (applying to offenders “[e]xcept as otherwise provided in paragraph (a.7) of this subsection (5)”) (emphasis added).

7 ¶ 19 “The period of parole for any sex offender convicted of a class 2

or 3 felony shall be an indeterminate term of at least twenty years

and a maximum of the remainder of the sex offender’s natural life.”

§ 18-1.3-1006(1)(b). Owings was convicted of nine class 2 or class 3

felonies (the sexual assault, attempted sexual assault, and

aggravated incest counts, counts 1-9).

¶ 20 “The period of parole for any sex offender convicted of a class 4

felony shall be an indeterminate term of at least ten years and a

maximum of the remainder of the sex offender’s natural life.” Id.

Owings was convicted of one class 4 felony sex offense (the

attempted incest count, count 10).

¶ 21 Accordingly, the court properly noted on the mittimus that

Owings was subject to parole for a term of “20 years to life” on

counts 1-9 and for a term of “10 years to life” on count 10. Because

“discretionary” parole does not accurately describe SOLSA’s parole

scheme, we reject Owings’ argument that the mittimus should

reflect a sentence that includes “discretionary” parole. See Tucker,

194 P.3d at 504 (explaining that because SOLSA parole is neither

“discretionary” nor “mandatory,” the mittimus should not include

either word).

8 ¶ 22 Still, as Owings points out, the court used the term

“mandatory parole” when imposing the sentence. And as a general

matter, when the court’s oral ruling conflicts with the mittimus, the

oral ruling controls. See People v. Mendenhall, 2015 COA 107M,

¶ 84. But we discern no inconsistency between the mittimus and

the court’s oral ruling. See id. (“We review de novo whether the

mittimus accurately reflects the sentence imposed at the sentencing

hearing.”). In our view, by referring to the term of parole as

“mandatory,” the court was merely acknowledging a mandatory

aspect of SOLSA parole. See Tucker, 194 P.3d at 504 (“[S]ection

18-1.3-1006(1)(b) contains language mandating a particular

minimum indeterminate term of parole for certain levels of offenses

falling under [SOLSA].”); Martin, 27 P.3d at 851 (SOLSA “mandates

minimum periods that [SOLSA] sex offenders must serve on

parole.”). The court was not imposing “mandatory” parole under

section 18-1.3-401(1)(a)(V)(A), C.R.S. 2024, a penalty that does not

exist under SOLSA.

¶ 23 In sum, we conclude that the parole component of Owings’

sentence is consistent with sections 17-2-201(5)(a.7) and

9 18-1.3-1006(1)(b) and is therefore not illegal.5 No remand for

correction of the mittimus is required.

C. Proper Sentencing Ranges

¶ 24 In his Crim. P. 35(a) motion, Owings asserted that “crime of

violence enhancers . . . are attached to this Defendant’s sentence,”

and he requested “resentencing of the Defendant with no crime of

violence enhancers attached to [his] sentence.”

¶ 25 Owings’ convictions for sexual assault on an at-risk juvenile,

aggravated incest, and attempted aggravated incest are all crimes of

violence because the jury found beyond a reasonable doubt that

Owings used “threats, intimidation, and force” or caused bodily

injury to the victim during the commission of those offenses. See

§ 18-1.3-406(2)(b)(I), C.R.S. 2024 (“‘Crime of violence’ also means

any unlawful sexual offense in which the defendant caused bodily

injury to the victim or in which the defendant used threat,

intimidation, or force against the victim.”); see also § 18-3-411(1),

C.R.S. 2024 (defining “unlawful sexual offense” to include sexual

5 To the extent Owings argues that the court ordered his parole

terms to run consecutively, we disagree that the mittimus reflects such an order.

10 assault on a child by one in a position of trust, aggravated incest,

and criminal attempt to commit those crimes).

¶ 26 Thus, the trial court was required to sentence Owings to an

indeterminate term of at least the midpoint of the presumptive

sentencing range and up to the maximum of his natural life for

each of those convictions. See § 18-1.3-1004(1)(b), C.R.S. 2024.

¶ 27 By way of example, Owings was convicted of four counts of

sexual assault on a child by one in a position of trust in violation of

section 18-3-405.3, C.R.S. 2024. Because the victim was “less than

fifteen years of age,” and an “at-risk juvenile,” that offense is a class

2 felony. § 18-6.5-103(7)(e), C.R.S. 2024.

¶ 28 The presumptive sentencing range for class 2 felonies is eight

to twenty-four years. § 18-1.3-401(1)(a)(V)(A). Because that offense

was subject to enhanced crime of violence sentencing, the trial

court was required to sentence Owings to an indeterminate term of

imprisonment, with a minimum sentence of at least the midpoint

between eight and twenty-four years and a maximum sentence of

life. See Hunsaker v. People, 2015 CO 46, ¶ 27 (sentencing for

violent sex offenses requires an indeterminate term of imprisonment

consisting of a “bottom-end” sentence between the midpoint in, but

11 not more than twice the maximum of, the presumptive range and a

maximum sentence of life). The court sentenced Owings to sixteen

years (the midpoint between eight and twenty-four) to life — the

statutory minimum period of incarceration.

¶ 29 Owings’ reliance on People v. Tillery, 231 P.3d 36 (Colo. App.

2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011),

is misplaced. Tillery concerned sentencing enhancement for

“extraordinary risk” crimes, as designated under section

18-1.3-401(10). For those crimes, the upper end of the presumptive

sentencing range is increased by anywhere from six months to four

years, depending on the class of felony for which the defendant was

convicted. § 18-1.3-401(10)(a). Most crimes of violence qualify as

extraordinary risk crimes, but the Tillery division concluded that

crimes of violence that are sexual offenses do not. Tillery, 231 P.2d

at 52. Therefore, sexual offenses that are subject to crime of

violence sentencing are not also subject to an extraordinary risk

enhancement. Id.

¶ 30 To the extent Owings argues that his sentence is illegal

because the court applied both crime of violence and extraordinary

risk enhancements, we reject that argument. Owings does not

12 point to anything in the record suggesting that the court applied an

extraordinary risk enhancement, and our review does not reveal any

evidence that the court did so.

¶ 31 For one thing, neither defense counsel nor the prosecutor ever

mentioned the extraordinary risk enhancement. The prosecution

submitted a sentencing memorandum in which it set forth the

minimum sentences applicable to each of Owings’ convictions. The

memorandum indicated that crime of violence sentencing applied,

but it did not reference the extraordinary risk crime statute or

assert that the upper end of the presumptive range should be

increased. Moreover, the court did not say that it was applying an

extraordinary risk crime enhancement and nothing about the

sentences imposed suggests that it did. Cf. People v. Banks, 983

P.2d 102, 106 (Colo. App. 1999) (determining that the court

erroneously applied the extraordinary risk crime enhancer because

“[t]he only way for the trial court to have arrived at the five-year

minimum sentence was by applying” the enhancer), aff’d, 9 P.3d

1125 (Colo. 2000).

¶ 32 We conclude that the court properly applied the crime of

violence sentencing statute to counts 1-8 and 10 and that it did not

13 apply an additional enhancement under the extraordinary risk

crime statute. Thus, Owings’ sentences are not illegal on this basis

either.

III. Disposition

¶ 33 The order is affirmed.

JUDGE FOX and JUDGE SCHUTZ concur.