June 24, 2019

Colorado Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

The Colorado Court of Appeals issued its opinion in People v. Melnick on Thursday, February 21, 2019.

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Equal Protection Challenge Does Not Apply to Parole Eligibility Date

The Colorado Supreme Court issued its opinion in Dean v. People on Monday, February 29, 2016.

Equal Protection—Habitual Criminal Sentencing.

The Supreme Court addressed defendant’s contention that the interplay of the habitual criminal statute (CRS § 18-1.3-801) and the parole eligibility statute (CRS § 17-22.5-403), as applied here, violate his right to equal protection because he must serve a longer period of incarceration before he is eligible for parole than an habitual offender with a history of more serious felony convictions. The Court held that the habitual criminal sentencing scheme and the parole eligibility scheme are both rationally related to legitimate government purposes. Moreover, for purposes of an equal protection claim, a court compares the relative harshness of a penalty by reference to the maximum possible period of incarceration, not the timing of parole eligibility. The Court therefore concluded that the habitual criminal sentencing and parole eligibility scheme, as applied to defendant, do not violate Colorado’s guarantee of equal protection. Accordingly, the Court affirmed the judgment of the court of appeals and remanded the case with directions to correct the mittimus.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Multiple Sentences Treated as One Continuous Sentence for Parole Eligibility Date Calculation

The Colorado Court of Appeals issued its opinion in Fetzer v. Colorado Department of Corrections on Thursday, January 14, 2016.

Fetzer v. Colorado Department of Corrections explored the application of C.R.S. § 17-22.5-101 to parole eligibility dates (PEDs) when an inmate has multiple concurrent and consecutive sentences that were imposed at different times. Fetzer was convicted of seven crimes between August 1988 and March 2000. In 2014, the Colorado Supreme Court issued Nowak v. Suthers, 320 P.3d 340 (Colo. 2014), in which it determined that for purposes of computing an inmate’s PED, C.R.S. § 17-22.5-101 requires the DOC to consider all of an inmate’s sentences as one continuous sentence.

Relying on Nowak, Fetzer requested that the DOC review his PED. The supervisor of time and release computations for the DOC determined Nowak was not applicable to Fetzer’s case and computed his PED based on the start date of his longest concurrent sentence. Fetzer filed a petition for mandamus relief in the trial court. The DOC filed a motion to dismiss, attaching an affidavit from the supervisor. The trial court did not timely receive Fetzer’s response to the DOC’s motion, although it was timely filed through the prison’s mail system, and the court granted the DOC’s motion to dismiss.

Fetzer appealed to the Colorado Court of Appeals, contending the trial court erred in dismissing his petition for mandamus and failing to construe his several sentences as one continuous sentence. The court of appeals agreed. The court concluded the trial court misapplied C.R.S. § 17-22.5-101, finding that it applies to concurrent and consecutive sentences alike and the sentences must be construed as one continuous sentence with an effective date of the date the first sentence became effective.

The court of appeals reversed the trial court’s judgment and remanded for recalculation of Fetzer’s PED.


Colorado Supreme Court: Good Time Credits Only to be Used to Calculate Inmate’s Parole Eligibility

The Colorado Supreme Court issued its opinion in Ankeney v. Raemisch on Monday, March 16, 2015.

Mandatory Release Date—Applicability of Good Time, Earned Time, and Educational Earned Time.

The Department of Corrections (DOC) appealed directly to the Supreme Court from an order of the district court granting Ankeney habeas corpus relief. Complying with a remand order of the court of appeals from an earlier appeal, the district court interpreted various statutory provisions regarding good time and earned time credit to require Ankeney’s release from prison almost three years before the date calculated by the DOC. Crediting the time during which Ankeney remained unlawfully incarcerated against his subsequent, statutorily mandated period of parole, the district court found him to have completed his parole term and ordered his immediate release from parole supervision.

The Court reversed the district court’s judgment. It held that the lower courts erroneously concluded that for inmates convicted of crimes committed after July 1, 1993, good time credits awardable by CRS § 17-22.5-301 are to be applied against an inmate’s mandatory release date rather than calculated merely to determine his or her parole eligibility. A proper application of the statutory deductions from Ankeney’s sentence to which he is entitled demonstrates that he has not completed service of his required term of parole.

Summary and full case available here, courtesy of The Colorado Lawyer.

HB 14-1044: Adding Penalties for Parolees who Tamper With Their Electronic Monitors

On January 8, 2014, Rep. Tim Dore introduced HB 14-1044 – Concerning Consequences for a Parolee who Tampers with an Electronic Monitoring Device that the Parolee is Required to Wear as a Condition of ParoleThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A parolee who violates the conditions of his or her parole by removing or tampering with an electronic monitoring device that the parolee is required to wear as a condition of his or her parole is subject to an immediate warrantless arrest. If a community parole officer has probable cause to believe that a parolee who is under the supervision of the parole officer has removed or tampered with an electronic monitoring device that the parolee is required to wear as a condition of his or her parole, the parole officer shall either:

  • Immediately make a warrantless arrest of the parolee; or
  • Not later than 12 hours after acquiring such probable cause, notify a law enforcement agency with jurisdiction over the parolee’s last-known address that the parolee is subject to an immediate warrantless arrest.

A parole officer shall file a complaint seeking revocation of the parole of any parolee who has removed or tampered with an electronic monitoring device.

If the state board of parole determines that a parolee has violated the conditions of his or her parole by removing or tampering with an electronic monitoring device, the board shall revoke the parolee’s parole and reinstate the remainder of the parolee’s sentence to the custody of the department of corrections. The bill is assigned to the Judiciary Committee.

Tenth Circuit: Denial of Motion to Suppress Affirmed Where Search Reasonable Under Totality of Circumstances

The Tenth Circuit Court of Appeals published its opinion in United States v. Mabry on Wednesday, September 4, 2013.

Bruce Mabry was arrested for a parole violation after Kansas parole officers learned he had left the state without permission and was in a car containing a large quantity of marijuana. While arresting him back in Kansas, the officers found a sawed-off shotgun and subsequently charged Mabry with its possession. He moved to suppress the evidence of the weapon on the basis that his Fourth Amendment rights were violated by the search. The district court denied his motion to suppress, and Mabry appealed after pleading guilty.

Parolees and probationers have a reduced expectation of privacy so warrantless searches without probable cause may be proper if the search is reasonable under the totality of the circumstances. The Tenth Circuit applied the totality of the circumstances exception and concluded that the search at issue here was reasonable because (1) as a parolee, Mabry had a diminished expectation of privacy; (2) there was reliable information that Mabry had violated his parole and was involved with distributing drugs, which supports a reasonable suspicion to search the residence; and (3) the State had a strong interest in monitoring Mabry’s behavior and preventing his recidivism, especially in light of his recent parole violations. The court affirmed the denial of Mabry’s motion to suppress.

Colorado Court of Appeals: Defendant Sentenced Under Sex Offender Lifetime Supervision Act So No Error in Returning to DOC for Remainder of Indeterminate Sentence

The Colorado Court of Appeals issued its opinion in People v. Beck on Thursday, August 1, 2013.

Crim.P. 35(c)—Sexual Assault on a Child—Probation—Revocation of Parole—Colorado Sex Offender Lifetime Supervision Act—CRS § 17-22.5-403(8)(b).

Defendant appealed the district court’s order denying his Crim.P. 35(c) motion. The Court of Appeals affirmed.

In 2004, defendant pleaded guilty to one count of sexual assault on a child, a class 4 felony. The trial court sentenced him to sex offender intensive supervised probation for ten years to life. After twice violating the terms of his probation, defendant was sentenced to two years to life in the custody of the Department of Corrections (DOC), plus parole of ten years to life. In 2009, defendant was released on parole. On October 8, 2010, the parole board revoked defendant’s parole and returned him to the DOC for the remainder of his sentence—that is, his natural life—because he had violated the conditions of his parole when he was terminated from a sex offender treatment program for noncompliance.

Defendant argued that the district court erred in deciding that CRS § 17-2-103(11)(b) authorized the revocation of his parole for the remainder of his indeterminate sentence rather than a maximum of 180 days. CRS §§ 17-2-103(11)(b) and 17-22.5-403(8)(b), which both address the length of time the parole board may return a sex offender to the DOC on revocation of his or her parole, are in conflict and cannot be reconciled. The specific and more recent statute, CRS § 17-22.5-403(8)(b), prevails when the parolee is on parole for a sex offense that falls within the purview of the Colorado Sex Offender Lifetime Supervision Act (SOLSA). The plain meaning of CRS § 17-22.5-403(8)(b) is that the General Assembly gave the parole board the discretion to revoke a sex offender’s parole for the rest of his or her indeterminate sentence.

Here, defendant is a sex offender under SOLSA subject to CRS § 17-22.5-403(8)(b) because he committed the offense in 2003 (after the effective date of SOLSA), and his conviction of sexual assault on a child is a sex offense under SOLSA. Therefore, the parole board was authorized to revoke defendant’s parole for the remainder of his sentence under CRS § 17-22.5-403(8)(b) and the district court did not err in denying his Crim.P. 35(c) motion.

Summary and full case available here.

HB 13-1109: Correcting Language of Mandatory Protection Orders Against Criminals to Encompass Parole Period

On January 18, 2013, Rep. Perry Buck and Sen. Scott Renfroe introduced HB 13-1109 – Concerning the Application of Mandatory Protection Orders to ParoleesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a mandatory protection order is created against any person charged with a criminal offense. The order restrains the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. The protection order remains in effect until final disposition of the action.

For the purposes of these provisions, the bill amends the definition of “until final disposition of the action” to clarify that a defendant shall not be deemed to have been released from incarceration until the defendant has also been discharged from any period of parole supervision that follows such incarceration. On Feb. 12, the House gave final approval of the bill; the bill is assigned to the Judiciary Committee in the Senate.

Governor Hickenlooper Announces Appointments to State Board of Parole

On Wednesday, June 29, 2011, Governor John Hickenlooper announced his appointments to the State Board of Parole.

The State Board of Parole holds hearings and considers applications for parole, and conducts all proceedings involving revocation of parole. These appointments are dependent upon Senate confirmation. The members appointed are:

  • Dr. Anthony Young, of Colorado Springs, to serve as a citizen representative; term to expire July 1, 2014. To also serve as Chairperson effective July 1, 2011, for a term expiring at the pleasure of the governor.
  • Patricia Ann Waak, of Erie, to serve as a citizen representative; term to expire July 1, 2013. To also serve as Vice Chairperson effective July 1, 2011, for a term expiring at the pleasure of the governor.
  • Edward P. Thomas, of Denver, to serve as a citizen representative; term to expire July 1, 2014.
  • Denise K. Balazic, of Aurora, to serve as a parole or probation representative; term to expire July 1, 2014.

The full press release from the Governor’s office concerning these board appointments can be found here.