May 22, 2018

Colorado Supreme Court: Statutory Continuous Sentence Requirement Applies to Both Concurrent and Consecutive Sentences

The Colorado Supreme Court issued its opinion in Executive Director of the Colorado Department of Corrections v. Fetzer on Monday, June 26, 2017.

Parole Eligibility.

The Department of Corrections petitioned for review of the court of appeals’ judgment reversing an order of the district court that denied Fetzer’s petition pursuant to C.R.C.P. 106(a)(2). Fetzer’s petition sought an order compelling the recalculation of his parole eligibility date, asserting that the Department’s “governing sentence” method, which calculated his parole eligibility date solely on the basis of the longest of his concurrent sentences, violated the statutory requirement that his multiple sentences be treated as one continuous sentence. The court of appeals reversed and remanded for recalculation, reasoning both that, contrary to the Department’s understanding, the statutory continuous sentence requirement applies to concurrent as well as consecutive sentences and that the Department’s “governing sentence” method of calculation could not apply to Fetzer’s sentences because they were all subject to the same statutory parole provisions.

The supreme court held that, because the “governing sentence” theories that have previously been sanctioned by this court have served to determine the statutory parole and discharge provisions applicable to a single continuous sentence and the manner in which those provisions can be meaningfully applied to it, rather than as an alternative to the statutory continuous sentence requirement itself, the Department erred in simply substituting Fetzer’s longest sentence for the required continuous sentence. Because, however, Fetzer’s multiple sentences are not all subject to the same statutory parole provisions, as indicated in the court of appeals’ opinion, reference to a governing sentence, or some comparable means of determining the applicable incidents of his parole, may remain necessary to the calculation of Fetzer’s parole eligibility date. The judgment of the court of appeals reversing the district court’s order was therefore affirmed. Its remand order, directing the Department to recalculate Fetzer’s parole eligibility date in accordance with its opinion, however, was reversed, and the case was remanded with directions that it be returned to the district court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

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