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Graham v. Executive Director of Colorado Department of Corrections

Supreme Court of Colorado, En Banc

January 13, 2020

Jimmie Graham, Plaintiff-Appellant
v.
Executive Director of Colorado Department of Corrections; and Warden of Sterling Correctional Facility. Defendants-Appellees

          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In so doing, the board noted that Graham had been on parole nine times, had absconded from parole seven times, and had been revoked from parole eight times.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 ...

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