Appeal
from the District Court Logan County District Court Case No.
18CV32 Honorable Charles M. Hobbs, Judge.
Jimmie
Graham, pro se Sterling, Colorado
Attorneys for Defendants-Appellees: Philip J. Weiser,
Attorney General Chris W. Alber, Senior Assistant Attorney
General Denver, Colorado.
PER
CURIAM.
¶1
In this habeas corpus appeal, we consider the parole
board's order confining Jimmie Graham for more than
ninety days as a result of his parole violations. We conclude
that the parole board exceeded its statutory authority and
that the district court subsequently erred in denying
Graham's habeas petition. We thus reverse the district
court's order. Because Graham has been confined well
beyond the ninety days authorized by the version of the
parole revocation statute in effect at the time of
Graham's parole revocation, we remand to the district
court with directions to grant the writ of habeas corpus,
make the writ permanent, and order the Executive Director of
the Colorado Department of Corrections and the Warden of
Sterling Correctional Facility (collectively,
"DOC") to immediately release Graham to parole.
I.
Facts and Procedural History
¶2
In February 2018, Graham's parole officer filed a
complaint alleging that Graham had violated three conditions
of his parole: changing his residence without permission;
failing to report to the parole office as directed; and
committing a new felony-escape. The allegation related to the
commission of a new felony was dismissed after the escape
case was dismissed. Graham then pled not guilty to the two
remaining allegations. Following a hearing, the parole board
found that Graham had violated his parole as alleged in the
two outstanding counts of the complaint. In June 2018, the
board revoked Graham's parole and ordered him confined to
the DOC for the remainder of his parole period. In so doing,
the board noted that Graham had been on parole nine times,
had absconded from parole seven times, and had been revoked
from parole eight times. This poor parole history, concluded
the board, justified its decision. Graham appealed, but his
appeal was denied.
¶3
Graham then filed a petition for habeas corpus in the
district court, alleging that the applicable version of the
parole revocation statute, section 17-2-103(11)(b), C.R.S.
(2017), did not permit the parole board to order him confined
for the remainder of his parole period.[1] According to
Graham, his case fell within the ambit of subparagraph
(III.5), which authorizes confinement for a maximum of ninety
days following revocation of parole. §
17-2-103(11)(b)(III.5). The district court denied
Graham's petition and concluded that the parole board had
acted within its discretion.
¶4
Graham timely appealed to this court. See Colo.
Const. art. VI, § 2 (outlining the appellate
jurisdiction of the supreme court); see also §
13-4-102(1)(e), C.R.S. (2019) (excluding habeas corpus
appeals from the jurisdiction of the court of appeals). We
now reverse.
II.
Analysis
¶5
We agree with Graham that the parole board exceeded its
statutory authority in ordering him confined for the
remainder of his parole period. See Martin v.
People, 27 P.3d 846, 858 (Colo. 2001) (noting that under
section 17-2-103(11)(b), the parole board is authorized to
return a parolee to confinement as a penalty for violating
parole but that the period of confinement is limited by
statute). Subsection (11) of section 17-2-103 sets out the
board's authority to address parole violations. Paragraph
(a) provides that when the board finds a violation, it may
revoke parole (as provided in paragraph (b)), continue
parole, or modify parole. § 17-2-103(11)(a). When, as
here, the board decides to revoke parole, paragraph (b)
restricts the duration of confinement it may order:
(I) If the board determines that the parolee has violated
parole through commission of a crime, the board may revoke
parole and order the parolee confined for up to the remainder
of the parole period.
(II)If the board determines that the parolee violated any
condition of parole that does not involve the commission of a
crime, and the provisions of subsection (11)(b)(III) or
(11)(b)(III.5) of this section are not applicable, the board
may revoke parole and order the parolee confined for up to
the remainder of the parole period.
(III) If the board determines that the parolee has violated
any condition of parole that does not involve the commission
of a crime, the parolee has no active felony warrant, felony
detainer, or pending felony criminal charge, and the parolee
was on parole for an offense that was a level 3 or level 4
drug felony or class 4, class 5, or class 6 nonviolent felony
as defined in section 17-22.5-405(5)(b), except for menacing
as defined in section 18-3-206, or any unlawful sexual
behavior contained in section 16-22-102(9), or unless the
parolee was subject to statutes related to wrongs to ...