Modified on Denial of Rehearing December 9, 2019
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
We are asked to decide whether a defendants 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 defendants 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 Bakers 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.
I. Facts and Procedural History
On November 4, 2009, a Jefferson County court issued a
warrant for Douglas Bakers 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, ...