Chaffee County District Court No. 14CV30 Honorable Charles M. Barton, Judge
Raymond Lee Fetzer, Pro Se
Cynthia H. Coffman, Attorney General, Nicole S. Gellar, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
TAUBMAN J. JUDGE
¶ 1 This case calls on us to consider the application of section 17-22.5-101, C.R.S. 2015, in circumstances not previously addressed by our appellate courts. We evaluate for the first time how section 17-22.5-101 applies to concurrent sentences with different effective dates in determining an inmate's parole eligibility date (PED).
¶ 2 Plaintiff, Raymond Lee Fetzer, an inmate in the custody of the Department of Corrections, appeals the trial court's dismissal of his petition for writ of mandamus for failure to state a claim for which relief could be granted. We reverse the trial court's judgment granting a motion to dismiss filed by the defendants, the executive director for the Department of Corrections and the warden for the Buena Vista Correctional Facility (collectively DOC). We remand the case with directions that the writ of mandamus be granted and that DOC be ordered to correctly calculate Fetzer's PED.
¶ 3 Between August 1988 and March 2000, Fetzer was convicted of seven crimes. In August 1988, he was convicted of three offenses - aggravated robbery, first degree burglary, and robbery of the elderly - and the court sentenced him to concurrent twenty-year sentences for each crime. A minor at the time, Fetzer was detained at the Lookout Mountain School until his custody could be transferred to DOC. Before that transfer, Fetzer escaped and was at large for ten months and twenty-four days.
¶ 4 In November 1989, the police arrested Fetzer and returned him to the custody of DOC. In 1990, Fetzer was convicted of his fourth offense, possession of a weapon by a previous offender, and the court sentenced him to serve eight years concurrently with his previous sentences. In 1991, Fetzer was convicted of his fifth offense, and the court sentenced Fetzer to an eighteen-month consecutive sentence for first degree introduction of contraband. The parole board released Fetzer on parole in October 1998; however, in 1999, his parole was revoked, he was returned to prison, and he was later convicted of his sixth and seventh offenses. In March 2000, the court sentenced Fetzer to twenty-two- and thirty-year concurrent sentences for aggravated robbery and menacing. These sentences were to run concurrently with one another and concurrently with Fetzer's prior sentences.
¶ 5 In 2014, the supreme court in Nowak v. Suthers, 2014 CO 14, 320 P.3d 340, considered whether section 17-22.5-101 requires DOC to construe an inmate's sentences as one continuous sentence in determining his PED when (1) the second sentence was not imposed until after the PED for the first sentence had passed and (2) when doing so would result in the inmate becoming parole eligible before serving at least fifty percent of the second sentence. Section 17-22.5-101 provides: "For the purposes of this article, when any inmate has been committed under several convictions with separate sentences, [DOC] shall construe all sentences as one continuous sentence."
¶ 6 The Nowak court held that for the purpose of computing an inmate's PED, section 17-22.5-101 requires DOC to construe all of an inmate's sentences as one continuous sentence. Id. at ¶ 4, 320 P.3d at 342.
¶ 7 Relying on Nowak, Fetzer requested that DOC review his PED. In August 2014, Mary Carlson, supervisor of time and release operations for DOC, reviewed his record and determined that Fetzer's PED was not affected by Nowak because that decision applied only to consecutive sentences. Using the "governing sentence" method developed by DOC, Carlson determined that Fetzer would be eligible for parole on June 16, 2022. She based the PED on Fetzer's conviction for aggravated robbery on March 14, 2000. DOC used that date for two purposes: (1) to determine his "governing sentence, " because his thirty-year sentence was the longest of his concurrent sentences; and (2) to determine the "effective date" of his concurrent sentences.
¶ 8 Subsequently, Fetzer filed a petition for mandamus relief in the trial court, asserting that he was entitled to a PED calculation under the one continuous sentence approach with a sentence effective date of August 12, 1988. On November 6, 2014, DOC filed a motion to dismiss pursuant to C.R.C.P. 12(b)(5) and attached an affidavit by Carlson. On November 18, 2014, Fetzer deposited an answer to DOC's motion in the prison mail system, which apparently did not reach the trial court. On December 12, 2014, the trial court granted the dismissal. Afterward, Fetzer filed, and the trial court accepted, his motion to review his response; however, the trial court determined the dismissal was proper.
II. One Continuous Sentence
¶ 9 Fetzer contends the trial court erred when it dismissed his petition for writ of mandamus. He also contends DOC failed to construe his several, separate sentences as one continuous sentence as required by section 17-22.5-101 and, ...