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 December 31, 2020
2020COA177
No. 19CA0890, Owens v. Williams — Criminal Law — Parole — Inmate and Parole Time Computation — One Continuous Sentence — Parole Eligibility
A division of the court of appeals holds that when a defendant
is convicted of offenses to which different parole eligibility date
calculation statutes apply, the Department of Corrections may, in
appropriate circumstances, in treating the sentences as one
continuous sentence (as it must, see § 17-22.5-101, C.R.S. 2020;
Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77), apply just
one such statute to the one continuous sentence, even if that
means the defendant’s parole eligibility date would be later than if
the sentences for each offense were treated separately for purposes
of calculating the parole eligibility date. COLORADO COURT OF APPEALS 2020COA177
Court of Appeals No. 19CA0890 Fremont County District Court No. 19CV31 Honorable Michael W. Meyrick, Magistrate
Nathanael E. Owens,
Plaintiff-Appellant,
v.
Dean Williams, Mary Carlson, and Scott Dauffenbach,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE J. JONES Pawar, J., concurs Berger, J., specially concurs
Announced December 31, 2020
Nathanael E. Owens, Pro Se
Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Nathanael E. Owens, is an inmate serving a lengthy
sentence in the custody of the Colorado Department of Corrections
(DOC) arising from convictions for three offenses. He sued
employees of the DOC1 under C.R.C.P. 106(a)(2) seeking a writ of
mandamus, claiming that the DOC has improperly calculated his
parole eligibility date. The DOC moved to dismiss, and the district
court granted its motion.
¶2 Ultimately, this case turns on whether the DOC can rely on
section 17-22.5-403(2.5), C.R.S. 2020, to calculate Owens’ parole
eligibility date as the date he will have served seventy-five percent of
his entire composite sentence. Owens contends that because he
wasn’t convicted of a crime of violence, that provision doesn’t apply.
The provision that does apply, he says, is section 17-22.5-403(1),
which sets forth the general rule that an inmate is eligible for parole
after serving fifty percent of his sentence.
1 The defendants named in Owens’ complaint include Dean Williams, Mary Carlson, and Scott Dauffenbach. Although Owens sued the individuals in their official capacities, nothing in the record indicated the nature of their official titles or positions.
1 ¶3 We conclude that the DOC doesn’t have a clear duty to
calculate Owens’ parole eligibility date in the way Owens requests.
We agree with Owens that his consecutive sentences for his offenses
must be treated as one continuous sentence for the purpose of
calculating his parole eligibility date. But because he was convicted
of two class 3 felony counts of aggravated robbery, the DOC could
apply the seventy-five percent multiplier of section 17-22.5-
403(2.5)(b)(I) when determining the parole eligibility date for the one
continuous sentence, notwithstanding the fact that Owens is also
serving a sentence for an offense that doesn’t fall within section 17-
22.5-403(2.5). We therefore affirm.
I. Background
¶4 In 2017, Owens pleaded guilty to two class 3 felony counts of
aggravated robbery and one class 5 felony count of vehicular
eluding. The district court sentenced him to ten years in DOC
custody on each of the aggravated robbery convictions and four
years on the vehicular eluding conviction, all to run consecutively.
¶5 The DOC initially calculated Owens’ parole eligibility date
using a “hybrid” method that it had employed for many years: it
applied the seventy-five percent multiplier of section 17-22.5-
2 403(2.5) to the convictions for aggravated robbery and applied the
fifty percent multiplier of section 17-22.5-403(1) to the conviction
for vehicular eluding. This resulted in a parole eligibility date of
seventeen years from the date Owens began serving his sentence,
less earned time credit.2
¶6 Owens filed this case under C.R.C.P. 106(a)(2) seeking a writ of
mandamus requiring the DOC to calculate his parole eligibility date
by treating his sentences as one continuous sentence and applying
the fifty percent multiplier of section 17-22.5-403(1). He asserted
that such a calculation is required because he wasn’t and hadn’t
previously been convicted of any crime of violence.
¶7 The DOC moved to dismiss. It pointed out that it had
recalculated Owens’ parole eligibility date by treating the three
sentences as one continuous sentence as required by section 17-
22.5-101, C.R.S. 2020 (“For the purposes of this article, when any
inmate has been committed under several convictions with separate
sentences, the [DOC] shall construe all sentences as one
2The calculation can be expressed in mathematical terms as (.75 × 10 (years) × 2 (number of convictions/sentences)) + (.50 × 4 (years)).
3 continuous sentence.”). See Exec. Dir. of Colo. Dep’t of Corr. v.
Fetzer, 2017 CO 77 (holding that this provision applies to all
calculations of parole eligibility dates). The DOC then applied the
seventy-five percent multiplier to the composite twenty-four-year
sentence, which resulted in a parole eligibility date about three
months later than the originally calculated date. The DOC argued
that its new calculation rendered Owens’ claim moot and, in the
alternative, that Owens had failed to show a clear right to the relief
he requested (applying the fifty percent multiplier) because the
seventy-five percent multiplier of section 17-22.5-403(2.5)(a)(I)
applies to Owens’ two class 3 felony aggravated robbery convictions.
¶8 Relying on section 17-22.5-403(2.5)(b)(II), Owens responded
that section 17-22.5-403(2.5) can’t apply unless the offender has
been previously convicted of a crime of violence.
¶9 The district court granted the DOC’s motion on the DOC’s
alternative ground that Owens doesn’t have a clear right to have his
parole eligibility date calculated using the fifty percent multiplier.
II. Discussion
¶ 10 The parties’ arguments on appeal track their arguments in the
district court. Like the district court, we conclude that Owens is
4 mistaken that he has a clear right to application of the fifty percent
multiplier of section 17-22.5-403(1).3
A. Standard of Review
¶ 11 Because the DOC attached an affidavit to its motion to
dismiss, we will treat the motion as one for summary judgment.
See C.R.C.P. 12(b) (if matters outside the pleadings are submitted
with a motion to dismiss for failure to state a claim, and considered
by the court, “the motion shall be treated as one for summary
judgment”); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339
(Colo. 1988); Garcia v. Centura Health Corp., 2020 COA 38, ¶ 50.
We review a district court’s summary judgment de novo. Burton v.
Colo. Access, 2018 CO 11, ¶ 19. Summary judgment is proper
when the record shows that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.
C.R.C.P. 56(c).
3We reject the DOC’s assertion that because it recalculated Owens’ parole eligibility date by treating the three sentences as one continuous sentence, his claim is moot. That was just one aspect of the recalculation. Owens’ challenge to the use of the seventy-five percent multiplier rather than the fifty percent multiplier presents an issue that could affect his parole eligibility date.
5 ¶ 12 This case also turns largely on questions of statutory
interpretation. We also review such questions de novo. Colo. Oil &
Gas Comm’n v. Martinez, 2019 CO 3, ¶ 19; Nowak v. Suthers, 2014
CO 14, ¶ 17 (construing sections 17-22.5-101 and 17-22.5-403(1)).
When we interpret a statute, we look to the entire statutory scheme
to give consistent, harmonious, and sensible effect to all its parts,
and we apply words and phrases consistent with their plain and
ordinary meanings. Martinez, ¶ 19; Denver Post Corp. v. Ritter, 255
P.3d 1083, 188-89 (Colo. 2011). If the statutory language is clear,
we apply it as written, without resorting to other principles of
statutory interpretation. Martinez, ¶ 19; Denver Post Corp., 255
P.3d at 1088.
B. Analysis
¶ 13 We begin by recognizing the limiting principles applicable to
suits for mandamus relief. Under C.R.C.P. 106(a)(2), a person may
petition a court for an order
to compel a . . . governmental body . . . to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which his is entitled, and from which he is
6 unlawfully precluded by such . . . governmental body . . . .
¶ 14 Mandamus is an extraordinary remedy that may be used to
compel performance by a public official of a plain legal duty
imposed on the official by virtue of the official’s office. Bd. of Cnty.
Comm’rs v. Cnty. Road Users Ass’n, 11 P.3d 432, 437 (Colo. 2000).
It is therefore available “to compel the performance of a purely
ministerial duty involving no discretionary right and not requiring
the exercise of judgment.” Id.; accord Verrier v. Colo. Dep’t of Corr.,
77 P.3d 875, 877-78 (Colo. App. 2003) (involving calculation of
earned time credit).
¶ 15 The burden on the plaintiff is heavy. The plaintiff must show
that (1) he has a clear right to the relief he seeks; (2) the defendant
has a clear duty to perform the act requested; and (3) no other
remedy is available. Cnty. Road Users Ass’n, 11 P.3d at 437.
¶ 16 With these strictures in mind, we turn to the merits.
¶ 17 First off, the issue whether the DOC must treat all three of
Owens’ sentences as one continuous sentence isn’t disputed. The
DOC concedes, as it did in the district court, that Fetzer dictates
7 that it must do so. And the DOC in fact recalculated Owens’ parole
eligibility date by doing so.
¶ 18 The real issue, then, is whether the DOC has a clear duty to
apply the fifty percent multiplier of section 17-22.5-403(1) to that
one continuous sentence. It does not.
¶ 19 In Fetzer, the court held that although the DOC must treat all
sentences as one continuous sentence, when those sentences are
for a mix of offenses that implicate different parole eligibility date
calculation provisions, “the [DOC’s] decision to apply some form of
governing sentence theory, or some other theory or device
altogether, in administering the relevant class of composite
continuous sentences [is] a matter within its expertise and
discretion.” Fetzer, ¶ 20.
¶ 20 This case involves offenses, and resulting sentences, subject to
two different calculation provisions.
¶ 21 Section 17-22.5-403(1) says, as now relevant, that a person
sentenced for class 3 and class 5 felonies “shall be eligible for parole
after such person has served fifty percent of the sentence
imposed . . . .” At first glance, this provision would seem to apply —
as Owens appears to argue — to all three of his sentences. But
8 subsections (2.5)(a) and (b)(I) say, “[n]otwithstanding subsection (1)
of this section, any person convicted and sentenced for . . .
aggravated robbery . . . shall be eligible for parole after such person
has served seventy-five percent of the sentence imposed” if the
conviction was for “a class 3 felony offense . . . .”
¶ 22 Owens pleaded guilty to two class 3 felony counts of
aggravated robbery. So while his sentence for vehicular eluding
falls within subsection (1)’s fifty percent rule, his two aggravated
robbery sentences fall within subsections (2.5)(a) and (b)(I)’s
seventy-five percent rule. Per Fetzer, under these circumstances,
the DOC had discretion to apply the seventy-five percent rule to the
one composite, continuous twenty-four-year sentence. In other
words, it can’t be said that the DOC has a clear duty to apply the
fifty percent rule to that one composite, continuous sentence.
¶ 23 But wait, Owens says, section 17-22.5-403(2.5)(a) can’t apply
to his aggravated robbery sentences because there was no finding
that they were crimes of violence or that he had previously been
convicted of a crime of violence. For this proposition, he relies on
subsection (2.5)(b)(II); Outler v. Norton, 934 P.2d 922 (Colo. App.
9 1997), overruled by Meredith v. Zavaras, 954 P.2d 597 (Colo. 1998);
and Nowak. But he misreads that provision and the cases.
¶ 24 Section 17-22.5-403(2.5)(a) and (b) says that the seventy-five
percent rule applies to a conviction and sentence for aggravated
robbery if (I) the crime “is a class 2 or class 3 felony offense; or (II)
[the crime] is a class 4 or class 5 felony offense” and the defendant
“has previously been convicted of a crime of violence as defined in
section 18-1.3-406, C.R.S.” (Emphasis added.) Thus, a conviction
for aggravated robbery as a class 3 felony plainly requires
application of the seventy-five percent rule regardless of whether
the offense was found to be a crime of violence or the defendant was
previously convicted of a crime of violence. See Lombard v. Colo.
Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008) (“Generally,
we presume the disjunctive use of the word ‘or’ marks distinctive
categories.”); Pro’s Closet, Inc. v. City of Boulder, 2019 COA 128,
¶ 12 (same).
¶ 25 Outler is distinguishable because it addressed section 17-22.5-
403(2), which applies to crimes committed after June 7, 1990, and
before July 1, 2004, and expressly limits application of a
seventy-five percent multiplier to sentences for certain offenses
10 where the defendant “has previously been convicted of . . . a crime
of violence as defined in section 18-1.3-406, C.R.S.” See Outler,
934 P.2d at 925-26. As discussed, section 17-22.5-403(2.5) isn’t so
limited.
¶ 26 Nowak is also distinguishable, albeit for a different reason. In
that case, the court held that the fifty percent multiplier of section
17-22.5-403(1) applies to two sentences — treated as one
continuous sentence under section 17-22.5-101 — even when the
second sentence is imposed after the parole eligibility date for the
first sentence has passed. Nowak, ¶¶ 1, 4, 35. The court wasn’t
confronted with any issue as to section 17-22.5-403(2.5) or any
issue as to sentences implicating both the fifty percent multiplier
and the seventy-five percent multiplier. And nothing in the court’s
reasoning conflicts, even implicitly, with our conclusion.
¶ 27 Perhaps Owens means to suggest that because his conviction
for vehicular eluding was for a class 5 felony, and he hadn’t
previously been convicted of a crime of violence, section 17-22.5-
403(2.5)(a) can’t be applied to his one continuous sentence. But
any such suggestion can’t be squared with Fetzer’s holding that
when the one continuous sentence comprises sentences subject to
11 different parole eligibility date calculation provisions, the DOC has
discretion to decide how to calculate the date. Fetzer, ¶ 20. That
discretion logically includes the option of using the calculation rule
applicable to the offenses resulting in eighty-three percent of the
one continuous sentence.4
¶ 28 In sum, Owens hasn’t shown that he has a clear right to the
relief he seeks or that the DOC has a clear duty to perform the act
he requests. It follows that he isn’t entitled to a writ of mandamus.
III. Conclusion
¶ 29 The judgment is affirmed.
JUDGE PAWAR concurs.
JUDGE BERGER specially concurs.
4 Indeed, one could argue that doing otherwise would result in a windfall to the defendant that couldn’t have been intended by the legislature — a windfall created by the mere fact that a defendant committed a less serious offense in addition to the more serious offenses subject to the seventy-five percent rule.
12 JUDGE BERGER, specially concurring.
¶ 30 I join the court’s opinion because the court’s reading of the
supreme court’s opinion in Executive Director of Colorado
Department of Corrections v. Fetzer, 2017 CO 77, is not
unreasonable. Obviously, this court is bound by supreme court
precedent. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.
¶ 31 I write separately to explain why a wide grant of discretion to
the Department of Corrections (DOC) in these circumstances is
both unnecessary and inconsistent with the statutory scheme. I do
not quarrel with the court’s conclusion that the DOC has wide
discretion in many matters relating to the administration of
Colorado’s prisons. That discretion is necessary to run a large
government department, particularly a corrections department. But
when the General Assembly has definitively spoken on a subject
and has displaced discretion, courts have a duty to enforce the law
as written, not to grant either unlimited or even circumscribed
discretion to executive branch officials to rewrite statutes. See Bd.
of Cnty. Comm’rs v. Colo. Pub. Utils. Comm’n, 157 P.3d 1083, 1091
(Colo. 2007) (“Our primary task in interpreting a statute is to give
effect to the intent of the General Assembly.”).
13 ¶ 32 Exercising its exclusive constitutional authority, the General
Assembly has prescribed that certain offenders, based on their
crimes and other statutory criteria, are eligible for parole after
serving fifty percent of their sentences. § 17-22.5-403(1), C.R.S.
2020. Other offenders, based on their crimes and other statutory
criteria, must serve seventy-five percent of their sentences before
being eligible for parole. § 17-22.5-403(2.5), C.R.S. 2020. When a
single sentence is at issue, these rules are easy to apply. But when,
as here, an offender is committed on more than one sentence, the
question is more complicated.1
¶ 33 Owens was committed on three separate sentences, ordered to
run consecutively to each other; statutory law requires the DOC to
treat such sentences as one continuous sentence. § 17-22.5-101,
C.R.S. 2020. The DOC did so in this case and applied the
seventy-five percent rule to all of Owens’ sentences because at least
1I do not address the even more complicated subject of application of the fifty percent and seventy-five percent rules to concurrent sentences, because the facts of this case do not include concurrent sentences. But even if those complexities support the wide discretion granted to the DOC by the court’s opinion and Fetzer, I don’t perceive any reason not to apply the legislature’s clear rules to consecutive sentences.
14 one of his separate sentences was subject to the seventy-five
percent rule. But his third sentence was subject to the fifty percent
rule, not the seventy-five percent rule. In doing so, the DOC
indisputably extended Owens’ parole eligibility date beyond the date
that would be mandated by the application of the two different
percentages of time served statutes to each of his sentences.
¶ 34 The court holds, in reasonable reliance on Fetzer, that the
continuous sentence rule trumps the separate legislative
enactments regarding the percentage of the sentence that must be
served to reach parole eligibility, and that, despite these rather clear
statutes, the DOC has discretion to apply the seventy-five percent
rule to the entire, continuous sentence.
¶ 35 But, as I illustrate below, it would not be difficult to apply the
legislative rules to each of the sentences that comprise the one
continuous sentence and remain faithful to the one continuous
sentence rule. Doing so, in my view, respects the legislature’s
exclusive authority to set the rules for parole eligibility and does
nothing to prevent the DOC from also complying with the one
continuous sentence rule.
15 ¶ 36 A hypothetical illustrates the mischief created by the grant of
discretion to the DOC. Take the situation where the offender is
committed under three consecutive sentences: a twenty-five-year
sentence for a crime that is subject to the fifty percent parole
eligibility rule and two separate sentences of five years, one of which
is subject to the seventy-five percent rule and the other of which is
subject to the fifty percent rule. As I read Fetzer, the DOC might
act within its discretion to treat the entire continuous sentence as
subject to the seventy-five percent rule, resulting in parole eligibility
after serving 26.25 years.2 But if the percentage of time served
statutes were applied to each of the sentences, the offender would
be eligible for parole in 18.75 years.
¶ 37 The court would say, I’m sure, that no one, much less the
DOC, has unbridled discretion and that the exercise of such
discretion is reviewable by this court. But how do the judges of this
court decide whether the parole eligibility difference reflected in my
hypothetical would be an abuse of discretion? At what point does
2 For purposes of this illustration, I have ignored any other credits to which the offender may be entitled.
16 the DOC abuse its discretion in the application of such a rule? Is
there some percentage deviation that renders the exercise of
discretion unreasonable? I can’t perceive any principled basis to
make such determinations.
¶ 38 We exercise appellate jurisdiction in many circumstances
requiring us to determine whether a lower court has properly
exercised its discretion, and sometimes the questions are close. As
with the operation of executive departments, judicial discretion is
an essential component of the operation of the judicial branch. But
when the legislature has spoken on the precise issue and when the
vagaries of such executive and judicial discretion can be avoided by
the application of clear statutes, I see no reason or justification to
go the discretion route.
¶ 39 Accordingly, while I join the court’s opinion, the supreme court
is not itself bound by Fetzer and I respectfully suggest that either
the supreme court take a second look at this or the General
Assembly clarify that it meant what it said when it prescribed the
percentages of sentences served to determine parole eligibility.