COLORADO SUPREME COURT 2 East 14th Avenue Denver, CO 80203 On Appeal from Honorable Judge David M. Thorson, District Court Fremont County Case No. 2012CV22 RANDAL ANKENEY, Petitioner-Appellee, v. RICK RAEMISCH, EXECUTIVE DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS; LOU ARCHULETTA, WARDEN OF THE FREMONT CORRECTIONAL FACILITY, Respondents-Appellants.

COURT USE ONLY Supreme Court Case No: 2013SA336

JOHN W. SUTHERS, Attorney General JAMES W. QUINN, First Assistant

Attorney General, * Ralph L. Carr Colorado Judicial Center 1300 Broadway, Floor Denver, CO 80203 Telephone: (720) 508-6610 Facsimile: (720) 508-6032 E-Mail: james.quinn@state.co.us Registration Number: 46394 *Counsel of Record

OPENING BRIEF

DATE FILED: May 27, 2014 5:00 PM FILING ID: 3E508D814C331 CASE NUMBER: 2013SA336

TABLE OF CONTENTS

PAGE

i

STATEMENT OF THE ISSUES ............................................................... 1

STATEMENT OF THE CASE .................................................................. 2

I. Nature of the Case ........................................................................... 2

II. Course of proceedings and disposition of the case below ................ 3

STATEMENT OF THE FACTS ................................................................ 5

SUMMARY OF ARGUMENT ................................................................... 6

ARGUMENT ............................................................................................. 7

I. The Court of Appeals erroneously concluded that good time should be credited toward an inmate’s mandatory release date ................................................................................................... 7

A. Standard of review ......................................................................... 7

B. Overview ......................................................................................... 7

C. Changes in Colorado’s statutory parole schemes over time ....... 10

D. Earned time credit is applied to an inmate’s mandatory release date, but good time credit is not ...................................... 21

E. The error in the Ankeney decision ............................................... 24

II. The district court erred in concluding that it had jurisdiction to discharge Ankeney’s three year mandatory parole after two months when the Parole Board was not a party to the proceedings. .................................................................................... 32

A. Standard of review. ...................................................................... 32

B. The district court lacked personal jurisdiction over the Parole Board to order the discharge Ankeney’s three year mandatory parole after Ankeney had only served two months of mandatory parole ........................................................ 32

CONCLUSION ........................................................................................ 34

TABLE OF AUTHORITIES

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CASES

Academy of Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456 (Colo. 2001) ....................................................................... 22

Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug. 22, 2013)(unpublished) ................................................................. passim

Badger v. Suthers, 985 P.2d 1042 (Colo. 1999) ................................ 15, 27 Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989) ................................. 16, 17 Cardiel v. Brittian, 833 P.2d 748 (Colo. 1992) ........................................ 33 Colo. Dep’t. of Corrs., Parole Div. ex rel. Miller v. Madison, 85

P.3d 542 (Colo. 2004) .............................................................................. 7 Craig v. People, 986 P.2d 951 (Colo. 1999) ............................................. 15 Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo. Mar. 3,

2011) ..................................................................................................... 20 Hughes v. Jones, 3 P.2d 1074 (1931) ...................................................... 32 In re Marriage of Malwitz, 99 P.3d 56 (Colo. 2004) ............................... 32 Jones v. Martinez, 799 P.2d 385 (Colo. 1990) ......................................... 16 Klein v. Coblentz, No. 96-1289 WL 767538, at *4; 1997 U.S. App.

LEXIS ................................................................................................... 20 Linker v. Linker, 470 P.2d 882 (1970) .................................................... 32 Lusero v. Welt, 223 Fed. App’x 780 (10th Cir. 2007) ........................ 19, 20 Meyers v. Price, 842 P.2d 229 (Colo. 1992) ....................... 8, 16, 21, 22, 24 Nowak v. Suthers et al., 320 P.3d 340 (Colo. 2014) ................................ 18 People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998), cert. granted,

judgment affirmed without opinion (Colo. 2000) ................................. 33 People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992) ........................... 17 People v. Luther, 58 P.3d 1013 (Colo. 2002) ................... 23, 24, 28, 29, 33

TABLE OF AUTHORITIES

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People v. McCreadie, 938 P.2d 528 n.6 (Colo. 1997) ................................ 8 People v. McCullough, 6 P.3d 774 (Colo. 2000) ...................................... 21 People v. Norton, 63 P.3d 339 (Colo. 2003) ........................... 13, 14, 27, 29 People v. Watson, 892 P.2d 388 (Colo. App. 1994), cert. denied

(Colo. 1995) ........................................................................................... 16 Rather v. Suthers, 973 P.2d 1264 (Colo. 1999), cert denied, 528

U.S. 834 (1999) ....................................................................................... 8 Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989) ......................... 16, 17, 30 Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990) ................................. passim Thorson v. Colorado Dep’t. of Corrs., 801 P.2d 540 (Colo. 1990) ........... 16 Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App. 1999) ................ 32 Verrier v. Colo. Dep’t of Corrs., 77 P.3d 875 (Colo. App. 2003) ................ 8 Wiedemer v. People, 784 P.2d 739 (Colo. 1989) ...................................... 16

STATUTES

§ 13-17.5-103(1), C.R.S. (2012) .......................................................... 15, 26 § 16-11-310, C.R.S. (repealed 1988) .................................................. 15, 27 § 17-22.5-301(2), C.R.S. (2013) .......................................................... 16, 30 § 17-22.5-301(3), C.R.S. (2013) .................................................... 16, 17, 30 § 17-22.5-402, C.R.S. (2013) .................................................................... 17 § 17-22.5-402(2), C.R.S. (2013) ................................................................ 17 § 17-22.5-402(1), C.R.S. (2013) ................................................................ 17 § 17-22.5-403, C.R.S. (2013) .................................................................... 19 § 17-22.5-403(1), C.R.S. (2013) .................................................................. 9 § 17-22.5-403(3), C.R.S. (2013) ................................................................ 17 § 17-22.5-403(3.5), C.R.S. (2013) ............................................................. 17

TABLE OF AUTHORITIES

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§ 17-22.5-404(4), C.R.S. (2013) .......................................................... 18, 19 § 17-22.5-404(7)(a), C.R.S. (2013) ........................................................... 19 § 17-22.5-405, C.R.S. (2013) .................................................... 9, 22, 23, 24 § 17-22.5-405(5), C.R.S. (2013) ................................................................ 22 § 17-22.5-405(6), C.R.S. (2009) ................................................................ 23 § 18-1-105(1)(a)(V), 6 C.R.S. (1998) .................................................. 15, 27 Session Laws: 1988 Colo. Sess. Law, p. 715 (repealed 1988). ................ 17

RULES

C.A.R. 43(c) ................................................................................................ 1

PRIOR RELATED APPEAL Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug. 22, 2013)(unpublished)

Respondents-Appellants Rick Raemisch and Lou Archuletta,1

through the Colorado Attorney General, respectfully submit the

following Opening Brief.

STATEMENT OF THE ISSUES

This is a direct appeal of a habeas corpus proceeding. The case

was originally filed as an action seeking habeas corpus and mandamus

relief. The district court dismissed the claim based upon Respondents’

Motion to Dismiss or in the Alternative Motion for Summary Judgment.

Petitioner Ankeney sought review by the court of appeals. The court of

appeals erroneously reversed and remanded after analyzing the

mandamus claim. Noting that it lacked jurisdiction with respect to the

habeas claim, the court of appeals instructed the district court on

remand to reconsider Ankeney’s habeas claim. Acting upon the court of

appeals direction, the district court, in contravention of statute and

1Tom Clements, the former Executive Director of the Colorado Department of Correction was murdered on March 19, 2013. In addition, Rae Timme retired from the Colorado Department of Corrections. Pursuant to C.A.R. 43(c) Rick Raemisch, Clements’s successor, and Lou Archletta, Timme’s successor, are automatically substituted as the Respondents-Appellees.

2

prior Supreme Court decisions, applied good time credits to Ankeney’s

sentence discharge date as opposed to his parole eligibility date. The

district court granted Ankeney habeas relief, discharging both his

sentence and his mandatory parole. The issues on appeal are:

1. Whether the court of appeals and district court erred in concluding that good time credits apply to an inmate’s discharge date thus releasing an inmate after service of half of the imposed sentence and eliminating discretionary parole. 2. Whether the district court erred in concluding that it had jurisdiction to discharge Ankeney’s three year mandatory parole after two months when the Parole Board was not a party to the proceedings.

STATEMENT OF THE CASE

I. Nature of the Case

At the time this case was initially filed, Petitioner-Appellee

Ankeney was incarcerated at the Fremont Correctional Facility.

Ankeney filed a Petition for Writ of Habeas Corpus and Complaint

Pursuant to C.R.C.P. 106 seeking release from incarceration. In his

Petition/Complaint, Ankeney asserted that the Colorado Department of

Corrections miscalculated his mandatory release date, which he

calculated to have been November 19, 2011. Ankeney asked the district

3

court to order Respondents-Appellants to calculate his mandatory

release date - specifically, to “compel the award of all ‘earned time’ and

‘good time,’ statutorily mandated or otherwise earned or awarded” so

that he could begin serving his mandatory parole period associated with

his sentence. See Petition for Writ of Habeas Corpus and Complaint

pursuant to C.R.C.P. 106, CD pp. 1-10.2

II. Course of proceedings and disposition of the case below

Respondents filed a Motion to Dismiss, or in the Alternative

Motion for Summary Judgment. See Motion to Dismiss, CD at pp. 66-

76. After Ankeney responded to the motion, the district court issued an

order denying Ankeney’s request for habeas relief, concluding that he

“failed to plead facts stating a prima facie case for habeas corpus relief”.

See Order at pp. 97-99. Later, the district court dismissed Ankeney’s

mandamus claim, based on his inability to pay the required filing fee,

which, the court found, was not waivable under section 13-17.5-103(1),

C.R.S. 2012. The district court further concluded that Ankeney failed to 2 Citations to the electronic record are to the specific document and page number on the CD that was furnished by the Clerk of the Supreme Court.

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state a claim upon which mandamus relief could be granted because

Ankeney did not have a clear right to the deduction of good time in

calculating his mandatory release date. See Order, CD at pp. 126-129.

Ankeney sought review by the court of appeals. The court of appeals

reversed and remanded after analyzing the mandamus claim. Noting

that it lacked jurisdiction with respect to the habeas claim, the court of

appeals specifically instructed the district court on remand to

reconsider the habeas claim. See Ankeney v. Raemisch, et al., Colo. Ct.

of App. No. 12CA1930, Aug. 22, 2013, CD at pp. 194-203.

Shortly after the court of appeals’ decision, on August 28, 2013,

Ankeney was granted discretionary parole. He agreed to the parole

conditions, signed his Parole Agreement, and began serving his three

year period of mandatory parole on August 28, 2013. See Parole Order,

CD at p. 223. Later on October 11, 2013, counsel for Ankeney filed a

“Forthwith Motion for Hearing,” requesting that the district court

schedule a hearing regarding Ankeney’s habeas corpus petition. See

Forthwith Motion, CD at pp. 209-210. On November 14, 2013, the

district court held a hearing. Acting upon the directives of the court

5

appeals, the district court granted habeas relief ordering that Ankeney

had served both the incarceration and mandatory parole periods of his

sentence and ordered his release and discharge from mandatory parole

supervision. Order Granting Habeas Corpus Relief, CD at pp. 249-251.

This direct appeal of the district court’s ruling granting habeas relief

followed.

STATEMENT OF THE FACTS

In January 2008, Ankeney, a former attorney, was delivered to the

diagnostic unit of the CDOC, to serve the following sentence imposed by

the district court in Larimer County in criminal case number

06CR1548: eight years for child abuse – negligently cause serious bodily

injury, a class four felony. The CDOC received additional mittimuses

for Ankeney for the following sentences imposed by the district court in

Arapahoe County in criminal case number 06CR125: two years jail, for

third degree sexual assault, a class one misdemeanor; three years for

stalking – emotional distress, a class five felony. Id. at ¶ 5. The two-

year jail sentence and three-year CDOC sentence were to run

concurrent to each other and to the eight-year sentence imposed in

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connection with 06CR1548. Id. Additionally, Ankeney was sentenced

to 24 months of mandatory parole for the class 5 stalking felony. Id.

Ankeney’s discretionary parole eligibility date was calculated to

occur November 9, 2010, and his mandatory release date was April 19,

2014. Ankeney was considered for early discretionary parole by the

Colorado Board of Parole in hearings held August 30, 2010; August 29,

2011; August 6, 2012; and September 21, 2012. On each occasion the

Parole Board’s decision was to defer and reconsider in one year. On

August 5, 2013, the Parole Board ordered Ankeney’s parole to begin on

his mandatory parole date of August 28, 2013. Upon release to parole,

Ankeney began serving a three year period of mandatory parole as

required by statute on his class 4 felony conviction, and as ordered by

the sentencing court in Larimer case 06CR1548.

SUMMARY OF ARGUMENT

The unpublished decision of the Colorado Court of Appeals in

Ankeney v. Raemisch et al., Case No. 12CA1930, Colorado Court of

Appeals (Aug. 22, 2013) (unpublished) is in error. The court of appeals

in Ankeney was mistaken in its analysis of the applicable statutes and

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case law regarding the application of good time and earned time credits

toward an inmate’s mandatory release date. In addition, after remand,

the district court improperly discharged Ankeney’s three year

mandatory parole period without jurisdiction over the Colorado Parole

Board.

ARGUMENT

I. The Court of Appeals erroneously concluded that good time should be credited toward an inmate’s mandatory release date.

A. Standard of review.

When the facts are not in dispute and a district court resolves a

habeas petition based solely upon the district court’s interpretation of

the relevant statutes and case law, the district court’s decision is

subject to de novo review. See Colo. Dep’t. of Corrs., Parole Div. ex rel.

Miller v. Madison, 85 P.3d 542, 544 (Colo. 2004).

B. Overview.

The Court of Appeals construction of Colorado law regarding the

proper application of time credit is flawed. In Colorado, there are two

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types of time credit that may be awarded to inmates: good time credit

and earned time credit. Good time credits are awarded for good conduct

in prisons, such as obeying rules; earned time credits may be awarded

for substantial progress in rehabilitation or work programs. Rather v.

Suthers, 973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S. 834

(1999); People v. McCreadie, 938 P.2d 528, 531 n.6 (Colo. 1997).3

It is undisputed that Ankeney committed his crimes after 1993.

See Mittimuses, CD at pp. 58-65. During his incarceration, according to

Ankeney, he was awarded good time credit, which was applied to

determine his parole eligibility date, the date that he first became

eligible to be considered by the Parole Board for release to parole, at the

Parole Board’s discretion. However, good time credit was not applied

toward the calculation of his mandatory release date, the date that the

incarceration portion of his sentence concluded and on which he was to

3 Although Colorado statutes make an inmate eligible for good time and earned time credit, they do not confer any entitlement to earned time credits. Meyers v. Price, 842 P.2d 229, 231 (Colo. 1992) (acknowledging the CDOC’s discretionary authority to award good time and earned time credits). This has been the law in Colorado even after the 1993 amendment to the relevant parole statutes. Verrier v. Colo. Dep’t of Corrs., 77 P.3d 875, 878 (Colo. App. 2003).

9

be released to serve the mandatory parole period applicable to his

sentence.4

This was appropriate pursuant C.R.S. § 17-22.5-403(1), which

states that any person sentenced for a class 2 through class 6 felony, or

any unclassified felony, “shall be eligible for parole after such person

has served fifty percent of the sentence imposed upon such person, less

any time authorized for earned time granted pursuant to section 17-

22.5-405.” C.R.S. § 17-22.5-403(1) (emphasis added). On its face, § 17-

22.5-403(1) applies to an inmate’s eligibility date for discretionary

parole, not an inmate’s mandatory release date.

The court of appeals erroneously concluded that Ankeney was

entitled to have the good time credit that he had accrued applied his

mandatory release date. As delineated below, the reasoning of that

decision is flawed. Ankeney was not entitled to have good time credit

applied to his mandatory release date, and he was not entitled to

immediate release.

4 As noted above, Ankeney was released on discretionary parole prior to the expiration of the incarceration portion of his sentence.

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C. Changes in Colorado’s statutory parole schemes over time.

To understand the manner in which good time credit is applied

toward the calculation of the date upon which a prisoner becomes

eligible for release to parole at the discretion of the Parole Board, in

contrast to the date than a prisoner has a right to release from

incarceration independent of the decision of the Parole Board, it is

helpful to review the significant changes in the statutory parole scheme

since the 1970s. See Thiret v. Kautzky, 792 P.2d 801, 804-805 (Colo.

1990). The handling of sentences to incarceration and parole has

undergone several major shifts since 1979, due to statutory enactments

by the General Assembly, which have impacted the manner in which

good time credits and earned time credits are applied to an inmate’s

sentence. Id. Three of these major shifts were explained and discussed

by the Colorado Supreme Court in Thiret v. Kautzky. Id.

Prior to 1979, prisoners received indeterminate sentences, and

release to parole was entirely at the discretion of the Parole Board. Id.

at 804. Under this system, good time credits merely determined the

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date on which the inmate became eligible to be considered for release to

parole, at the discretion of the Parole Board. Id. Then, in 1979, the

legislature adopted new “determinate” sentencing laws, that departed

from the previous discretionary parole system, and, “in effect, adopted a

system of ‘mandatory parole.’” Id. The effect of this legislation, when

taken as a whole, was to remove discretion from the Parole Board over

the decision to release a prisoner to parole, and to tie release to parole

to the accumulation of time served, earned time credits, and good time

credits. Id. Then, in 1985, the General Assembly again enacted

legislation affecting parole. Pursuant to this legislation, the General

Assembly once again granted the Parole Board discretion to grant or

deny parole prior to the expiration of a prisoner’s sentence. Id. at 805.

As a result, for prisoners serving sentences for crimes committed after

July 1, 1985, good time credit only applies to determine the date upon

which they become eligible for release to parole, at the Parole Board’s

discretion. Id.

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After explaining the statutory shifts regarding the handling of

parole, this Court in Thiret identified the following categories and the

application of good time credits as follows:

Thus, in Colorado, with respect to the statutory scheme governing parole, we have three general classes of persons now serving sentences in our prisons:

1. Those serving sentences for crimes committed prior to July 1, 1979.

2. Those serving sentences for crimes committed on or after July 1, 1979 but before July 1, 1985.

3. Those serving sentences for crimes committed on or after July 1, 1985.

Upon accruing sufficient credits to become eligible for parole, persons fitting under the first and third categories may be granted or denied parole at the discretion of the Parole Board. Good time and earned time credits earned by an inmate towards his release, for persons coming under these categories, merely establish the date of parole eligibility. A person fitting under the second category, however, must be paroled upon reaching the parole date as determined by deducting vested good time and earned time credits from the person’s sentence.

Id. at 805 (emphasis added). As a result, under Thiret, prisoners like

Ankeney who are serving sentences for crimes committed after July 1,

13

1985, (the third category) are only entitled to have good time credit

applied toward their parole eligibility dates.

In discussing these different approaches to the handling of parole

in Thiret, this Court utilized descriptive labels regarding the differing

parole schemes, including what it referred to as “discretionary parole”

and “mandatory parole.” Id. at 804-805. However, since this Court

issued its decision in Thiret, statutory sentencing laws were again

amended in 1993. The General Assembly created a new sentencing

scheme, such that for most felony offenses (Felony 2 through Felony 6),

there is both an incarceration period as well as a pre-determined period

of mandatory parole that also applies to those felony sentences. See

People v. Norton, 63 P.3d 339, 343 (Colo. 2003). The 1993 changes to

the law continue to afford the Parole Board the discretion to release

inmates to parole prior to completing the entire term of the

incarceration portions of their sentences, which is consistent with the

1985 amendments returning discretion over release to parole prior to

completion of the incarceration portion of the sentence to the Parole

Board; however, the length of term of parole to be served is set by

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statute and correlated to the level of felony. Id. Accordingly, the Parole

Board retains the discretion to release a prisoner before the natural

expiration of the incarceration portion of his sentence, or to decline to

release a prisoner until the expiration of the prisoner’s term of

incarceration. In that event, when the prisoner finishes serving the

incarceration portion of his sentence, the prisoner is released to serve

the “mandatory” period of parole applicable to his sentence, as set forth

by the 1993 statutory mandate. Id.

In this way, the General Assembly kept the discretion afforded to

the Parole Board pursuant to the statutory amendments of 1985, but

standardized the length of the parole applicable to a particular

sentence. However, this was not a return to the “mandatory parole”

system discussed in Thiret (which was the parole system applicable to

prisoners serving sentences for crimes committed between July 1, 1979,

and July 1, 1985), because under that parole scheme, the Parole Board

had no discretion regarding the date on which an inmate was released

to parole. Thiret, 792 P.2d at 804. In contrast, even under the

amendments made in 1993, the Parole Board still has the discretion to

15

release an inmate to parole prior to the expiration of the incarceration

portion of his sentence. See Craig v. People, 986 P.2d 951, 959 (Colo.

1999). However, if the Parole Board declines to do so, the inmate must

then serve a mandatory period of parole after completing the

incarceration portion of his sentence. Id.

As a result of these subsequent amendments, the terminology

employed by the Court in Thiret regarding “discretionary” and

“mandatory” parole can be confusing, and no longer adequately

differentiates between all of the different parole schemes. Indeed, in a

2007 case, this Court expressly noted that “[i]t is important to

distinguish between ‘mandatory parole’ as used in the sense that an

offender must be released or placed on parole upon expiration of a

sentence less good time and earned time deductions, see C.R.S. §16-11-

310 (repealed 1988); Thiret v. Kautzky, 792 P.2d 801, 804 & n.6, 805

(Colo. 1990); and ‘mandatory period of parole’ meaning a period of

parole that an offender must serve following his or her discharge from

imprisonment, see C.R.S. §18-1-105(1)(a)(V), 6 C.R.S. (1998).” Badger v.

Suthers, 985 P.2d 1042, 1043 (Colo. 1999).

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Nevertheless, this Court has repeatedly held that, for all crimes

committed before July 1, 1979, and after July 1, 1985, good time credits

are only relevant in determining the parole eligibility date and are not

to be used to determine the date that an inmate is entitled to release.

Bynum v. Kautzky, 784 P.2d 735, 738-39 (Colo. 1989) (Applying § 17-

22.5-301 (2), for crimes committed between July 1, 1981 and July 1,

1985); Jones v. Martinez, 799 P.2d 385, 387-88 (Colo. 1990) (same);

Thorson v. Colorado Dep’t. of Corrs., 801 P.2d 540, 541 (Colo. 1990)

(same); Wiedemer v. People, 784 P.2d 739, 740 (Colo. 1989) (same);

Renneke v. Kautzky, 782 P.2d 343, 344 (Colo. 1989) (Applying § 17-22.5-

301 (3) for crimes committed on or after July 1, 1985); Meyers v. Price,

842 P.2d 229, 231-32 (Colo. 1992) (same). As explained by the Court,

save for the exception of prisoners falling into the second category

identified in Thiret (those sentenced for crimes occurring between July

1, 1979, and July 1, 1985), “good time and earned time credits do not

constitute service of sentence, but only serve the purpose of determining

an inmate’s parole eligibility date.” People v. Watson, 892 P.2d 388, 390

(Colo. App. 1994), cert. denied (Colo. 1995) (Applying § 17-22.5-301 (3),

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C.R.S.). Any other interpretation would render the parole statutes

meaningless because an inmate would be already entitled to discharge

when he is eligible for discretionary parole. Bynum v. Kautzky, 784

P.2d at 738-39. See also, People v. Grenemyer, 827 P.2d 603, 606-08

(Colo. App. 1992) (Applying cases cited above to all crimes committed on

or after July 1, 1979 and rejecting ex post facto and equal protection

challenges).5

5 Section 16-11-310, C.R.S., was repealed in 1988. 1988 Colo. Sess. Laws, p. 715. In addition, the Colorado Supreme Court has held that the statute, when construed in conjunction with the parole eligibility statutes, was merely intended to apply good time credits to the parole eligibility date rather than the discharge date. Bynum v. Kautzky, 784 P.2d at 737-39. The Colorado Supreme Court has also held that, to the extent § 310’s provisions appeared to imply that good time credits could be applied to the calculation of the discharge date, the enactment of § 17-22.5-301 (3), C.R.S. in 1985 superseded that statute. Renneke v. Kautzky, 782 P.2d at 344-45. Section 17-22.5-402, which addresses discharge from custody, states, “Notwithstanding subsection (1) of this section, the full term for which an inmate is sentenced shall be reduced by any earned time granted pursuant to section 17-22.5-405, except as provided in section 17-22.5-403(3) and (3.5).” § 17-22.5-402(2). Pursuant to the language of this statute, if the CDOC grants earned time, the earned time that it grants to an inmate should be deducted from that inmate’s sentence. The omission of the term “good time” from this statutory provision further indicates that the legislature does not intend good time credit to be deducted from the mandatory release date.

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In a recent published decision, Nowak v. Suthers et al., 320 P.3d

340 (Colo. 2014), this Court emphasized that the Parole Board has the

discretion to grant or deny an inmate release to parole on their parole

eligibility date. Nowak was an inmate who was serving sentences for

felonies committed in 2003 and 2006. The majority of the issues that

the Nowak decision addresses issues that are not germane to this

case. However, this Court emphasized the point that the Parole Board

still has the discretion to grant or deny parole to an inmate before the

expiration of their sentence, on the inmate’s parole eligibility date. At

the end of the Nowak decision, on p. 38, the Court stated:

After the [parole eligibility date] is calculated, the parole board has the ultimate discretion to grant or deny parole based on the totality of the circumstances, including but not limited to the factors set forth in section 17-22.5-404(4), C.R.S. (2013)—such as the actuarial risk of re-offense, the offender's institutional conduct, the adequacy of the offender's parole plan, aggravating or mitigating factors from the criminal case, and whether the offender has previously absconded or escaped, or attempted to do so, while on community supervision.

Indeed, there are several statutory provisions that remain in effect

currently that discuss how the Parole Board should exercise its

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discretion – C.R.S. 17-22.5-404(4) discusses factors for the Parole Board

to consider in exercising its discretion. C.R.S. 17-22.5-403, 17-22.5-

404(7)(a) discusses how frequently the Parole Board should consider

inmates for release to discretionary parole if they chose to deny the

individual parole, on annual and triennial bases. Application of good

time to an inmate’s discharge date renders these statutes meaningless,

because the offender is eligible for release on the same date as he is

eligible for discretionary parole.

In addition, the federal courts that have applied Colorado law

regarding the application of good time credit have also determined that

except for individuals who are serving sentences for crimes committed

between July 1, 1979, and July 1, 1985, good time credits only apply

toward the date on which a prisoner becomes eligible for release to

discretionary parole. In a more recent decision that was decided long

after the 1993 amendments, the Tenth Circuit, applying Colorado law,

held that good time credits do not count toward sentence reduction, but

only toward one’s parole eligibility date. Lusero v. Welt, 223 Fed. App’x

780, 784 (10th Cir. 2007). “Thus, [a prisoner’s] loss of good time credits

20

[does] not ‘inevitably’ increase[ ] the duration of his sentence, and

accordingly does not give rise to a right to due process.” Lusero, 223

Fed. App’x at 784 (quoting Klein v. Coblentz, No. 96-1289, 1997 WL

767538, at *4; 1997 U.S. App. LEXIS 32757, (10th Cir. Nov. 19, 1997)).

See also Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo.

Mar. 3, 2011) (“In Colorado, good time credits generally do not result in

a mandatory reduction in sentence; rather, they affect only a prisoner’s

parole eligibility date, i.e., the date upon which the parole board can

make its discretionary determination as to a prisoner’s release on

parole.”).

Thus, the applicable published case law consistently holds that

good time credit applies only toward the calculation of the date that an

inmate is parole eligible – the date that he is eligible for consideration

to release to discretionary parole. Good time credit does not constitute

service of one’s sentence, and it should not be applied toward the date

that an inmate is entitled to release, the only exception being those

prisoners serving sentences for crimes committed between July 1, 1979,

and July 1, 1985.

21

D. Earned time credit is applied to an inmate’s mandatory release date, but good time credit is not.

There may be some confusion as to the application of time credits

toward parole eligibility dates and mandatory release dates caused by

statements in the case law that both good time and earned time credits

only apply to an inmate’s parole eligibility date. Though the Colorado

Supreme Court stated in 1992 in Meyers v. Price that both good time

and earned time serve only to determine an inmate’s parole eligibility

date, since at least 1995 the Colorado General Assembly has amended

the statutes concerning earned time to clarify the legislature’s intent

that earned time be deducted from an inmate’s sentence. The General

Assembly is presumed cognizant of judicial interpretations of statutes.

When the statute is subsequently amended, it is presumed that the

General Assembly was aware of the current case law and that the

Legislature intended to change the law. People v. McCullough, 6 P.3d

774, 778 (Colo. 2000). This presumption can be overcome by evidence

from the legislative history showing that the General Assembly merely

intended to clarify an ambiguity contained in the statute. Academy of

22

Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456, 464

(Colo. 2001).

In 1995, the legislature amended subsection 5 of C.R.S. §17-22.5-

405 to provide that inmates who were sentenced for non-violent felonies

after July 1, 1993, shall be eligible for earned time credit while on

parole, though such inmates are not eligible for earned time if they are

re-incarcerated following the revocation of their parole. See Session

Laws of Colorado, First Regular Session 1995, C.R.S. §17-22.5-405(5).

Time served on parole is, by definition, time served after the parole

eligibility date has already passed. If earned time were to continue to

only be applied to determine the parole eligibility date, as the court held

in Meyers v. Price, then the amendment making non-violent parolees

eligible for earned time credit would be meaningless. Their parole

eligibility dates have, by definition, already come and gone, and any

additional earned time granted to them while they are serving parole

would be moot if earned time only served to calculate the parole

eligibility date.

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Any lingering doubt as to the legislature’s intent was removed in

2009, when the legislature again amended C.R.S. §17-22.5-405. In

2009, the legislature added three subsections to this section. Pursuant

to newly added subsection 6, the parole board and the time computation

office of the CDOC are required to schedule earned release time for

inmates convicted of Class 4 and 5 felonies “up to sixty days prior to the

mandatory release date and for inmates convicted of class 6 felonies up

to thirty days prior to the mandatory release date” for inmates who meet

certain criteria. C.R.S. §17-22.5-405(6) (emphasis added). As explained

above, the parole eligibility date is the date on which an inmate

becomes eligible to be released to discretionary parole; the mandatory

release date is the date on which an inmate has completed serving the

incarceration portion of his sentence if the inmate has not previously

been released to parole. People v. Luther, 58 P.3d 1013, 1017 (Colo.

2002) (“In addressing the mandatory period of parole [under the 1993

amendments], the General Assembly clearly stated that the parole

board maintains exclusive authority to grant parole.”). The mandatory

release date, as a rule, occurs long after the parole eligibility date. See

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id. As with awarding parolees earned time, it makes no sense to

require the CDOC to schedule an earned time review 60 to 30 days

before the mandatory release date if earned time serves only to

determine the parole eligibility date, which has already come and gone.

As a result, the portion of the Court’s holding in Meyers v. Price

stating that earned time only serves to determine an inmate’s parole

eligibility date has been abrogated by the amendments to C.R.S. § 17-

22.5-405. However, the language of these amendments to these

statutes does not abrogate the Court’s holding as to the proper

application of good time credit. Therefore, the cases holding that good

time credit should be applied toward an inmate’s parole eligibility date

remain good law.

E. The error in the Ankeney decision.

The division of the court of appeals in Ankeney was mistaken in its

analysis of the applicable statutes and case law regarding the

application of good time and earned time credits toward an inmate’s

mandatory release date. In the Ankeney decision, the court of appeals

interpreted the decision in Thiret v. Kautzky so as to mean that the

25

application of good time credits is determined by whether an inmate is

serving a sentence subject to a “discretionary parole scheme or a

mandatory parole scheme.” Ankeney, at 6-7. The court of appeals

collapsed the three categories of prisoners that this Court identified in

Thiret into these two categories, apparently characterizing the first and

third categories identified in Thiret (prisoners serving sentences for

crimes committed before July 1, 1979 and after July 1, 1985) as being

“discretionary parole schemes,” and characterizing the second category

identified in Thiret (prisoners serving sentences for crimes committed

between July 1, 1979 and July 1, 1985) as being a “mandatory parole

scheme.” Id. The court of appeals then concluded that prisoners

sentenced after the 1993 statutory amendments, who receive both an

incarceration portion of their sentence and a period of mandatory

parole, fall within a “mandatory parole scheme.” Id. at 8. Therefore,

according to the court of appeals, good time credit must be applied

toward the date that Ankeney must be released to serve his mandatory

parole. Id. at 9.

26

The court of appeals’ opinion in Ankeney is flawed. The reasoning

of the court of appeals appears to have been entirely based on its

determination that all sentencing schemes fall into one of two

categories, either discretionary parole schemes or mandatory parole

schemes.6 Further, significantly, the court of appeals erroneously

determined that the 1993 amendments “reinstituted” “mandatory”

parole, and determined that for this reason, good time credit must be

applied toward an inmate’s release date, under the holding in Thiret.

Ankeney, at 9.

However, the court of appeals was incorrect that the 1993

amendments “reinstated” the mandatory parole scheme discussed in

Thiret that applies to prisoners sentenced between July 1, 1979, and

July 1, 1985. As noted above, the labels “mandatory” parole and

“discretionary” parole utilized by the Colorado Supreme Court in Thiret

no longer accurately label all of the differing parole schemes enacted by

the General Assembly since the late 1970s. The 1993 amendments 6 In quoting from the Thiret decision, the court of appeals replaced the Colorado Supreme Court’s use of the terms “first category,” “second category,” and “third category” with the terms “discretionary parole scheme” and “mandatory parole scheme.” Ankeney, at 7.

27

created a parole scheme that is different and distinct in critical respects

from the “mandatory” parole scheme that governs sentences for crimes

committed between July 1, 1979, and July 1, 1985. As the Colorado

Supreme Court stated, “[i]t is important to distinguish between

‘mandatory parole’ as used in the sense that an offender must be

released or placed on parole upon expiration of a sentence less good

time and earned time deductions, see C.R.S. §16-11-310 (repealed

1988); Thiret v. Kautzky, 792 P.2d 801, 804 & n.6, 805 (Colo. 1990); and

‘mandatory period of parole’ meaning a period of parole that an offender

must serve following his or her discharge from imprisonment, see 18-1-

105(1)(a)(V), 6 C.R.S. (1998).” Badger v. Suthers, 985 P.2d at 1043 n. 1.

In reaching its decision in Ankeney, the court of appeals failed to

make this distinction, and characterized the 1993 amendments as

“reinstating” the prior “mandatory parole” scheme, which they did not.

Under the 1993 amendments, the Parole Board still retains the

discretion granted to it pursuant to the 1985 amendments to release an

inmate to parole prior to the expiration of his sentence. See People v.

Norton, 63 P.3d at 343 (explaining that the 1993 amendments created a

28

period of mandatory parole that begins when the incarceration portion

of a sentence ends, “either by its natural termination or as a result of an

early release decision by the parole board.”) (emphasis added); People v.

Luther, 58 P.3d at 1017 (“In addressing the mandatory period of parole

[under the 1993 amendments], the General Assembly clearly stated

that the parole board maintains exclusive authority to grant parole.”).

However, the mandatory parole scheme discussed in Thiret -- the only

parole scheme under which good time credits apply to determine the

date a prisoner is entitled to release to parole -- divested the Parole

Board of any discretion to release an inmate to parole. See Thiret, 792

P.2d at 804. Under that scheme, the date upon which a prisoner is

entitled to release to parole is determined purely by a mathematical

equation. Id. This is clearly not the case under the 1993 amendments.

People v. Luther, 58 P.3d at 1017.

Further, the length of the parole to be served by a prisoner

sentenced under the “mandatory parole scheme” described by Thiret

varied depending upon the length of the prisoner’s sentence and how

much time had not yet been served. See Norton, 63 P.2d at 334. The

29

“mandatory” aspect of this sentencing scheme referred to the fact that

the Parole Board no longer had the discretion to determine if and when

a prisoner would be released to parole. See thiret 792 P. 2d at 804. In

contrast, under the 1993 amendments, the Parole Board still retains

the discretion to determine whether an inmate should be released to

parole prior to serving the entire incarceration portion of his sentence.

People v. Luther, 58 P.3d at 1017. However, under the 1993

amendments, the length of that parole is predetermined based upon the

level of Felony, and, if the Parole Board exercises its discretion not to

release a prisoner before the incarceration portion of his sentence

“naturally expires,” the prisoner must then also serve the statutory

period of mandatory parole. People v. Norton, 63 P.3d at 343. As a

result, the term “mandatory” applies to very different things in each of

these two parole schemes, and the 1993 amendments were not at all a

“reinstatement” of the mandatory parole scheme described in Thiret.

Because the 1993 amendments continue to afford the Parole

Board the discretion to determine whether an inmate should be

released to parole prior to serving the full term of his incarceration

30

sentence, to the extent that an analogy can be drawn to the previous

parole schemes identified by the Colorado Supreme Court in Thiret, the

1993 amendments are much more akin to the two “discretionary” parole

schemes outlined in that decision, under which good time credits only

apply to determine one’s parole eligibility date. Indeed, because

prisoners remain eligible for release to parole at the discretion of the

Parole Board, prior to the “natural expirations” of the incarceration

portions of their sentences, it makes sense to apply good time credits

only toward one’s parole eligibility date, but not the mandatory release

date, so as to allow there to be distinction between the two.7

7 The Respondents-Appellants also note that the portions of the statute regarding awards of good time credit to prisoners sentenced for crimes committed after July 1, 1979, states that though good time credits vest for persons sentenced for crimes committed between July 1, 1981, and July 1, 1985, good time credits do not vest for persons serving sentences for crimes committed on or after July 1, 1985. C.R.S. § 17-22.5-301(2) and (3). The significance of this was discussed by the Court in Renneke as part of the basis upon which it determined that good time credit applies to one’s parole eligibility date. See Renneke v. Kautzky, 782 P.2d at 344-345. The 1993 amendments did not alter the provisions of subsection (3), regarding awards of good time credits for persons serving sentences for crimes committed on or after July 1, 1985, and therefore the case law holding that good time credit should only be applied toward parole eligibility dates remains applicable.

31

Therefore, the Respondent Appellants respectfully submit that the

division that decided the unpublished Ankeney decision misread and

misapplied this Court’s decision in Thiret, and was mistaken in its

determination as to the application of good time credits. Moreover,

after the Ankeney decision was released, multiple offenders citing the

unpublished Ankeney decision, have filed similar habeas corpus

petitions. Every district court receiving the post Ankeney filings has

expressly refused to follow the flawed analysis in the unpublished

Ankeney decision. (See Exhibit A, Order in Wallin v. Raemisch,

Crowley District Court case no. 14cv2; Exhibit B, Order in Cowand v.

Raemisch, Fremont District Court case no. 14cv10; Exhibit C, Order in

Sumpter v. Raemisch, Fremont District Court case no. 14cv8; Exhibit

D, Order in Dixon v. Archuleta, Fremont District Court case no. 14cv43

; Exhibit E, Order in Crawford v. Archuleta, Fremont District Court

case no. 14cv36; Exhibit F, Order in Lovato v. Clements, Fremont

District Court case no. 14cv23; Exhibit G, Wu v. Executive Director,

Fremont District

32

Court case no. 14cv24).8 Accordingly, the Repsondents-Appellants

submit that the Colorado Court of Appeals decision in Ankeney v.

Raemisch et al., Case No. 12CA1930, is contrary to statute and the

published case law discussed above.

II. The district court erred in concluding that it had jurisdiction to discharge Ankeney’s three year mandatory parole after two months when the Parole Board was not a party to the proceedings.

A. Standard of review.

The issue of personal jurisdiction is reviewed de novo. In re

Marriage of Malwitz, 99 P.3d 56, 59 (Colo. 2004).

B. The district court lacked personal jurisdiction over the Parole Board to order the discharge Ankeney’s three year mandatory parole after Ankeney had only served two months of mandatory parole.

Plaintiff’s Complaint and Petition when originally filed, did not

and could not, relate to the calculation of his discharge from mandatory

8 This Court can take judicial notice of all of these cases. See Hughes v. Jones, 3 P.2d 1074, 1076 (1931); Linker v. Linker, 470 P.2d 882, 887 (1970). See also, Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App. 1999) rehearing denied, and certiorari denied. (A court may take judicial notice of the contents of court records in a related proceeding).

33

parole. The subject of Plaintiff’s Complaint and Habeas Corpus Petition

regarded when he should be released from prison and when his

mandatory parole should begin. After remand, on October 29, 2013,

Ankeney filed an Amended Petition, seeking discharge of his mandatory

parole.9 However, he never named or served the Parole Board with any

pleading.

“The parole board and CDOC are separate entities in the

Executive Branch.” People v. Gallegos, 975 P.2d 1135, 1138 (Colo. App.

1998), cert. granted, judgment affirmed without opinion (Colo. 2000)

[summary affirmation due to 3-3 tie with J. Coats abstaining]. [The

case also holds that the length of parole and parole revocation are to be

determined by the statute designated by the Board rather than by

CDOC time computation]. See also Cardiel v. Brittian, 833 P.2d 748,

754 (Colo. 1992) (If prisoner refuses to sign his parole agreement or

9 As noted above, each sentence for an offense committed on or after July 1, 1993, contains two separate and distinct components: An incarceration component and a post-incarceration mandatory parole component. People v. Luther, 58 P.3d at 1015. Because mandatory parole is a separate component of his sentence, there is no calculation of time credits for reduction of the mandatory parole period until Ankeney began serving that part of the sentence.

34

conditions, only the Board has authority to suspend or rescind his

parole. The CDOC cannot disregard the parole order). Only the Parole

Board has legal authority to terminate the mandatory parole portion of

the sentence before its completion. There is no statute that grants the

CDOC similar power to grant an early discharge. In this case, Ankeney

never named or served the Parole Board as a respondent. After

Ankeney was released from incarceration to mandatory parole, the

Parole Board was Ankeney’s “custodian.” Because the Parole Board

was not named as a party to the proceedings, the district court had no

jurisdiction over the Parole Board to order the discharge of Ankeney’s

mandatory parole.

CONCLUSION

For the reasons set forth above, the decision of the Colorado Court

of Appeals in Ankeney v. Raemisch et al., Case No. 12CA1930; and the

District Court’s decision in 2012CV22, should be reversed.

35

JOHN W. SUTHERS Attorney General

/s/ James X. Quinn JAMES X. QUINN, 21729* First Assistant Attorney General Corrections Unit Civil Litigation and Employment Law

Section Attorneys for Respondents-

Appellants*Counsel of Record

CERTIFICATE OF SERVICE This is to certify that I have duly served the within Opening Brief upon all parties herein via ICCES on this 27th day of May, 2014, addressed as follows: Marc B. Tull, Esq. P.O. Box 1935 Elisabeth, CO 80107 MarcBTull@gmail.com /s/ Mariah Cruz-Nanio