Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 16CA704.
Attorneys for Petitioner: Philip J. Weiser, Attorney General
William G. Kozeliski, Senior Assistant Attorney General
Attorneys for Respondent: Haddon, Morgan and Foreman, P.C.
Adam Mueller Denver, Colorado.
modified, and as modified, petition for rehearing DENIED.
We are asked to decide whether a defendant's claim that
he is entitled to more presentence confinement credit
("PSCC") than he originally received is properly
understood as a challenge to a sentence "not authorized
by law" under Crim. P. 35(a). We conclude that it is not.
PSCC is not a component of a sentence; instead, it is time
served before a sentence is imposed, which is later credited
against the defendant's sentence.
This conclusion does not mean that defendants have no avenue
to seek correction of an improper calculation of PSCC. To the
contrary, our legal system provides several means to ensure
that an error in calculating the credit owed to a defendant
can be corrected. A defendant may, for example, challenge the
calculation on direct appeal or through a Crim. P. 35(a)
"illegal manner" claim. In this case, because all
parties agree that both the parties and the court simply
overlooked Douglas Baker's eighteen missing days of PSCC,
we conclude that Rule 36 would have been the appropriate
route to correct the calculation error. Accordingly, we
reverse and remand the case with directions to return it to
the district court.
Facts and Procedural History
On November 4, 2009, a Jefferson County court issued a
warrant for Douglas Baker's arrest for sexual assault on
a child, pattern of abuse, a class three felony. When Baker
learned that he was facing arrest, he fled to Florida.
On June 27, 2011, Baker was arrested on the warrant and
booked into a Florida jail. He was then extradited to
Colorado where he was booked into the Jefferson County jail
on July 15, 2011. He remained in custody for the duration of
Baker pleaded guilty to one count of sexual assault on a
child, position of trust, a class three felony, and, on July
12, 2012, he was sentenced to a term of ten years to life in
the custody of the Department of Corrections. The court
awarded Baker 364 days of credit for time served and
designated him a Sexually Violent Predator ("SVP").
At the sentencing hearing, Baker objected to the SVP finding
and told the court that he would file a motion objecting to
it. Baker, however, failed to file a motion objecting to his
SVP status for over three years, and, in the interim, he
never filed a direct appeal.
Almost three years later, on April 20, 2015, Baker filed a
pro se motion entitled, "Motion to Correct Sentence
Pursuant to Crim. P. Rule 35(a)." In his motion, Baker
argued that he was not given PSCC for his time in custody in
Florida before he was extradited to Colorado. The People
responded, agreeing that Baker was entitled to credit for
that time and expressing no objection to the court awarding
Baker an additional eighteen days of PSCC.
On May 20, 2015, the district court awarded Baker an
additional eighteen days of PSCC for a total of 382 days. In
December 2015, at Baker's request, the court clarified
that this award amounted to a ruling on Baker's Rule
On January 11, 2016, Baker filed a pro se motion entitled,
"Motion to Vacate Sexually Violent Predator Status
Pursuant to C.R.S. §
18-3-414.5(1)(a)." Relying on our decision in Leyva v.
People, 184 P.3d 48 (Colo. 2008), Baker asserted that
his motion was not time barred because "the recent
correction of his illegal sentence" pursuant to Rule
35(a) restarted the three-year time clock for collaterally
attacking his original judgment ...