v. Williams

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 31, 2020

2020COA177

No. 19CA0890, Owens v. Williams — Criminal Law — Parole —
Inmate and Parole Time Computation — One Continuous
Sentence — Parole Eligibility

A division of the court of appeals holds that when a defendant

is convicted of offenses to which different parole eligibility date

calculation statutes apply, the Department of Corrections may, in

appropriate circumstances, in treating the sentences as one

continuous sentence (as it must, see § 17-22.5-101, C.R.S. 2020;

Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77), apply just

one such statute to the one continuous sentence, even if that

means the defendant’s parole eligibility date would be later than if

the sentences for each offense were treated separately for purposes

of calculating the parole eligibility date.
COLORADO COURT OF APPEALS 2020COA177

Court of Appeals No. 19CA0890
Fremont County District Court No. 19CV31
Honorable Michael W. Meyrick, Magistrate

Nathanael E. Owens,

Plaintiff-Appellant,

v.

Dean Williams, Mary Carlson, and Scott Dauffenbach,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE J. JONES
Pawar, J., concurs
Berger, J., specially concurs

Announced December 31, 2020

Nathanael E. Owens, Pro Se

Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney
General, Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, Nathanael E. Owens, is an inmate serving a lengthy

sentence in the custody of the Colorado Department of Corrections

(DOC) arising from convictions for three offenses. He sued

employees of the DOC1 under C.R.C.P. 106(a)(2) seeking a writ of

mandamus, claiming that the DOC has improperly calculated his

parole eligibility date. The DOC moved to dismiss, and the district

court granted its motion.

¶2 Ultimately, this case turns on whether the DOC can rely on

section 17-22.5-403(2.5), C.R.S. 2020, to calculate Owens’ parole

eligibility date as the date he will have served seventy-five percent of

his entire composite sentence. Owens contends that because he

wasn’t convicted of a crime of violence, that provision doesn’t apply.

The provision that does apply, he says, is section 17-22.5-403(1),

which sets forth the general rule that an inmate is eligible for parole

after serving fifty percent of his sentence.

1 The defendants named in Owens’ complaint include Dean
Williams, Mary Carlson, and Scott Dauffenbach. Although Owens
sued the individuals in their official capacities, nothing in the
record indicated the nature of their official titles or positions.

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¶3 We conclude that the DOC doesn’t have a clear duty to

calculate Owens’ parole eligibility date in the way Owens requests.

We agree with Owens that his consecutive sentences for his offenses

must be treated as one continuous sentence for the purpose of

calculating his parole eligibility date. But because he was convicted

of two class 3 felony counts of aggravated robbery, the DOC could

apply the seventy-five percent multiplier of section 17-22.5-

403(2.5)(b)(I) when determining the parole eligibility date for the one

continuous sentence, notwithstanding the fact that Owens is also

serving a sentence for an offense that doesn’t fall within section 17-

22.5-403(2.5). We therefore affirm.

I. Background

¶4 In 2017, Owens pleaded guilty to two class 3 felony counts of

aggravated robbery and one class 5 felony count of vehicular

eluding. The district court sentenced him to ten years in DOC

custody on each of the aggravated robbery convictions and four

years on the vehicular eluding conviction, all to run consecutively.

¶5 The DOC initially calculated Owens’ parole eligibility date

using a “hybrid” method that it had employed for many years: it

applied the seventy-five percent multiplier of section 17-22.5-

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 403(2.5) to the convictions for aggravated robbery and applied the

fifty percent multiplier of section 17-22.5-403(1) to the conviction

for vehicular eluding. This resulted in a parole eligibility date of

seventeen years from the date Owens began serving his sentence,

less earned time credit.2

¶6 Owens filed this case under C.R.C.P. 106(a)(2) seeking a writ of

mandamus requiring the DOC to calculate his parole eligibility date

by treating his sentences as one continuous sentence and applying

the fifty percent multiplier of section 17-22.5-403(1). He asserted

that such a calculation is required because he wasn’t and hadn’t

previously been convicted of any crime of violence.

¶7 The DOC moved to dismiss. It pointed out that it had

recalculated Owens’ parole eligibility date by treating the three

sentences as one continuous sentence as required by section 17-

22.5-101, C.R.S. 2020 (“For the purposes of this article, when any

inmate has been committed under several convictions with separate

sentences, the [DOC] shall construe all sentences as one

2The calculation can be expressed in mathematical terms as (.75 ×
10 (years) × 2 (number of convictions/sentences)) + (.50 × 4 (years)).

3
 continuous sentence.”). See Exec. Dir. of Colo. Dep’t of Corr. v.

Fetzer, 2017 CO 77 (holding that this provision applies to all

calculations of parole eligibility dates). The DOC then applied the

seventy-five percent multiplier to the composite twenty-four-year

sentence, which resulted in a parole eligibility date about three

months later than the originally calculated date. The DOC argued

that its new calculation rendered Owens’ claim moot and, in the

alternative, that Owens had failed to show a clear right to the relief

he requested (applying the fifty percent multiplier) because the

seventy-five percent multiplier of section 17-22.5-403(2.5)(a)(I)

applies to Owens’ two class 3 felony aggravated robbery convictions.

¶8 Relying on section 17-22.5-403(2.5)(b)(II), Owens responded

that section 17-22.5-403(2.5) can’t apply unless the offender has

been previously convicted of a crime of violence.

¶9 The district court granted the DOC’s motion on the DOC’s

alternative ground that Owens doesn’t have a clear right to have his

parole eligibility date calculated using the fifty percent multiplier.

II. Discussion

¶ 10 The parties’ arguments on appeal track their arguments in the

district court. Like the district court, we conclude that Owens is

4
 mistaken that he has a clear right to application of the fifty percent

multiplier of section 17-22.5-403(1).3

A. Standard of Review

¶ 11 Because the DOC attached an affidavit to its motion to

dismiss, we will treat the motion as one for summary judgment.

See C.R.C.P. 12(b) (if matters outside the pleadings are submitted

with a motion to dismiss for failure to state a claim, and considered

by the court, “the motion shall be treated as one for summary

judgment”); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339

(Colo. 1988); Garcia v. Centura Health Corp., 2020 COA 38, ¶ 50.

We review a district court’s summary judgment de novo. Burton v.

Colo. Access, 2018 CO 11, ¶ 19. Summary judgment is proper

when the record shows that there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.

C.R.C.P. 56(c).

3We reject the DOC’s assertion that because it recalculated Owens’
parole eligibility date by treating the three sentences as one
continuous sentence, his claim is moot. That was just one aspect
of the recalculation. Owens’ challenge to the use of the seventy-five
percent multiplier rather than the fifty percent multiplier presents
an issue that could affect his parole eligibility date.

5
¶ 12 This case also turns largely on questions of statutory

interpretation. We also review such questions de novo. Colo. Oil &

Gas Comm’n v. Martinez, 2019 CO 3, ¶ 19; Nowak v. Suthers, 2014

CO 14, ¶ 17 (construing sections 17-22.5-101 and 17-22.5-403(1)).

When we interpret a statute, we look to the entire statutory scheme

to give consistent, harmonious, and sensible effect to all its parts,

and we apply words and phrases consistent with their plain and

ordinary meanings. Martinez, ¶ 19; Denver Post Corp. v. Ritter, 255

P.3d 1083, 188-89 (Colo. 2011). If the statutory language is clear,

we apply it as written, without resorting to other principles of

statutory interpretation. Martinez, ¶ 19; Denver Post Corp., 255

P.3d at 1088.

B. Analysis

¶ 13 We begin by recognizing the limiting principles applicable to

suits for mandamus relief. Under C.R.C.P. 106(a)(2), a person may

petition a court for an order

to compel a . . . governmental body . . . to
perform an act which the law specially enjoins
as a duty resulting from an office, trust, or
station, or to compel the admission of a party
to the use and enjoyment of a right or office to
which his is entitled, and from which he is

6
 unlawfully precluded by such . . .
governmental body . . . .

¶ 14 Mandamus is an extraordinary remedy that may be used to

compel performance by a public official of a plain legal duty

imposed on the official by virtue of the official’s office. Bd. of Cnty.

Comm’rs v. Cnty. Road Users Ass’n, 11 P.3d 432, 437 (Colo. 2000).

It is therefore available “to compel the performance of a purely

ministerial duty involving no discretionary right and not requiring

the exercise of judgment.” Id.; accord Verrier v. Colo. Dep’t of Corr.,

77 P.3d 875, 877-78 (Colo. App. 2003) (involving calculation of

earned time credit).

¶ 15 The burden on the plaintiff is heavy. The plaintiff must show

that (1) he has a clear right to the relief he seeks; (2) the defendant

has a clear duty to perform the act requested; and (3) no other

remedy is available. Cnty. Road Users Ass’n, 11 P.3d at 437.

¶ 16 With these strictures in mind, we turn to the merits.

¶ 17 First off, the issue whether the DOC must treat all three of

Owens’ sentences as one continuous sentence isn’t disputed. The

DOC concedes, as it did in the district court, that Fetzer dictates

7
 that it must do so. And the DOC in fact recalculated Owens’ parole

eligibility date by doing so.

¶ 18 The real issue, then, is whether the DOC has a clear duty to

apply the fifty percent multiplier of section 17-22.5-403(1) to that

one continuous sentence. It does not.

¶ 19 In Fetzer, the court held that although the DOC must treat all

sentences as one continuous sentence, when those sentences are

for a mix of offenses that implicate different parole eligibility date

calculation provisions, “the [DOC’s] decision to apply some form of

governing sentence theory, or some other theory or device

altogether, in administering the relevant class of composite

continuous sentences [is] a matter within its expertise and

discretion.” Fetzer, ¶ 20.

¶ 20 This case involves offenses, and resulting sentences, subject to

two different calculation provisions.

¶ 21 Section 17-22.5-403(1) says, as now relevant, that a person

sentenced for class 3 and class 5 felonies “shall be eligible for parole

after such person has served fifty percent of the sentence

imposed . . . .” At first glance, this provision would seem to apply —

as Owens appears to argue — to all three of his sentences. But

8
 subsections (2.5)(a) and (b)(I) say, “[n]otwithstanding subsection (1)

of this section, any person convicted and sentenced for . . .

aggravated robbery . . . shall be eligible for parole after such person

has served seventy-five percent of the sentence imposed” if the

conviction was for “a class 3 felony offense . . . .”

¶ 22 Owens pleaded guilty to two class 3 felony counts of

aggravated robbery. So while his sentence for vehicular eluding

falls within subsection (1)’s fifty percent rule, his two aggravated

robbery sentences fall within subsections (2.5)(a) and (b)(I)’s

seventy-five percent rule. Per Fetzer, under these circumstances,

the DOC had discretion to apply the seventy-five percent rule to the

one composite, continuous twenty-four-year sentence. In other

words, it can’t be said that the DOC has a clear duty to apply the

fifty percent rule to that one composite, continuous sentence.

¶ 23 But wait, Owens says, section 17-22.5-403(2.5)(a) can’t apply

to his aggravated robbery sentences because there was no finding

that they were crimes of violence or that he had previously been

convicted of a crime of violence. For this proposition, he relies on

subsection (2.5)(b)(II); Outler v. Norton, 934 P.2d 922 (Colo. App.

9
 1997), overruled by Meredith v. Zavaras, 954 P.2d 597 (Colo. 1998);

and Nowak. But he misreads that provision and the cases.

¶ 24 Section 17-22.5-403(2.5)(a) and (b) says that the seventy-five

percent rule applies to a conviction and sentence for aggravated

robbery if (I) the crime “is a class 2 or class 3 felony offense; or (II)

[the crime] is a class 4 or class 5 felony offense” and the defendant

“has previously been convicted of a crime of violence as defined in

section 18-1.3-406, C.R.S.” (Emphasis added.) Thus, a conviction

for aggravated robbery as a class 3 felony plainly requires

application of the seventy-five percent rule regardless of whether

the offense was found to be a crime of violence or the defendant was

previously convicted of a crime of violence. See Lombard v. Colo.

Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008) (“Generally,

we presume the disjunctive use of the word ‘or’ marks distinctive

categories.”); Pro’s Closet, Inc. v. City of Boulder, 2019 COA 128,

¶ 12 (same).

¶ 25 Outler is distinguishable because it addressed section 17-22.5-

403(2), which applies to crimes committed after June 7, 1990, and

before July 1, 2004, and expressly limits application of a

seventy-five percent multiplier to sentences for certain offenses

10
 where the defendant “has previously been convicted of . . . a crime

of violence as defined in section 18-1.3-406, C.R.S.” See Outler,

934 P.2d at 925-26. As discussed, section 17-22.5-403(2.5) isn’t so

limited.

¶ 26 Nowak is also distinguishable, albeit for a different reason. In

that case, the court held that the fifty percent multiplier of section

17-22.5-403(1) applies to two sentences — treated as one

continuous sentence under section 17-22.5-101 — even when the

second sentence is imposed after the parole eligibility date for the

first sentence has passed. Nowak, ¶¶ 1, 4, 35. The court wasn’t

confronted with any issue as to section 17-22.5-403(2.5) or any

issue as to sentences implicating both the fifty percent multiplier

and the seventy-five percent multiplier. And nothing in the court’s

reasoning conflicts, even implicitly, with our conclusion.

¶ 27 Perhaps Owens means to suggest that because his conviction

for vehicular eluding was for a class 5 felony, and he hadn’t

previously been convicted of a crime of violence, section 17-22.5-

403(2.5)(a) can’t be applied to his one continuous sentence. But

any such suggestion can’t be squared with Fetzer’s holding that

when the one continuous sentence comprises sentences subject to

11
 different parole eligibility date calculation provisions, the DOC has

discretion to decide how to calculate the date. Fetzer, ¶ 20. That

discretion logically includes the option of using the calculation rule

applicable to the offenses resulting in eighty-three percent of the

one continuous sentence.4

¶ 28 In sum, Owens hasn’t shown that he has a clear right to the

relief he seeks or that the DOC has a clear duty to perform the act

he requests. It follows that he isn’t entitled to a writ of mandamus.

III. Conclusion

¶ 29 The judgment is affirmed.

JUDGE PAWAR concurs.

JUDGE BERGER specially concurs.

4 Indeed, one could argue that doing otherwise would result in a
windfall to the defendant that couldn’t have been intended by the
legislature — a windfall created by the mere fact that a defendant
committed a less serious offense in addition to the more serious
offenses subject to the seventy-five percent rule.

12
 JUDGE BERGER, specially concurring.

¶ 30 I join the court’s opinion because the court’s reading of the

supreme court’s opinion in Executive Director of Colorado

Department of Corrections v. Fetzer, 2017 CO 77, is not

unreasonable. Obviously, this court is bound by supreme court

precedent. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.

¶ 31 I write separately to explain why a wide grant of discretion to

the Department of Corrections (DOC) in these circumstances is

both unnecessary and inconsistent with the statutory scheme. I do

not quarrel with the court’s conclusion that the DOC has wide

discretion in many matters relating to the administration of

Colorado’s prisons. That discretion is necessary to run a large

government department, particularly a corrections department. But

when the General Assembly has definitively spoken on a subject

and has displaced discretion, courts have a duty to enforce the law

as written, not to grant either unlimited or even circumscribed

discretion to executive branch officials to rewrite statutes. See Bd.

of Cnty. Comm’rs v. Colo. Pub. Utils. Comm’n, 157 P.3d 1083, 1091

(Colo. 2007) (“Our primary task in interpreting a statute is to give

effect to the intent of the General Assembly.”).

13
¶ 32 Exercising its exclusive constitutional authority, the General

Assembly has prescribed that certain offenders, based on their

crimes and other statutory criteria, are eligible for parole after

serving fifty percent of their sentences. § 17-22.5-403(1), C.R.S.

2020. Other offenders, based on their crimes and other statutory

criteria, must serve seventy-five percent of their sentences before

being eligible for parole. § 17-22.5-403(2.5), C.R.S. 2020. When a

single sentence is at issue, these rules are easy to apply. But when,

as here, an offender is committed on more than one sentence, the

question is more complicated.1

¶ 33 Owens was committed on three separate sentences, ordered to

run consecutively to each other; statutory law requires the DOC to

treat such sentences as one continuous sentence. § 17-22.5-101,

C.R.S. 2020. The DOC did so in this case and applied the

seventy-five percent rule to all of Owens’ sentences because at least

1I do not address the even more complicated subject of application
of the fifty percent and seventy-five percent rules to concurrent
sentences, because the facts of this case do not include concurrent
sentences. But even if those complexities support the wide
discretion granted to the DOC by the court’s opinion and Fetzer, I
don’t perceive any reason not to apply the legislature’s clear rules to
consecutive sentences.

14
 one of his separate sentences was subject to the seventy-five

percent rule. But his third sentence was subject to the fifty percent

rule, not the seventy-five percent rule. In doing so, the DOC

indisputably extended Owens’ parole eligibility date beyond the date

that would be mandated by the application of the two different

percentages of time served statutes to each of his sentences.

¶ 34 The court holds, in reasonable reliance on Fetzer, that the

continuous sentence rule trumps the separate legislative

enactments regarding the percentage of the sentence that must be

served to reach parole eligibility, and that, despite these rather clear

statutes, the DOC has discretion to apply the seventy-five percent

rule to the entire, continuous sentence.

¶ 35 But, as I illustrate below, it would not be difficult to apply the

legislative rules to each of the sentences that comprise the one

continuous sentence and remain faithful to the one continuous

sentence rule. Doing so, in my view, respects the legislature’s

exclusive authority to set the rules for parole eligibility and does

nothing to prevent the DOC from also complying with the one

continuous sentence rule.

15
¶ 36 A hypothetical illustrates the mischief created by the grant of

discretion to the DOC. Take the situation where the offender is

committed under three consecutive sentences: a twenty-five-year

sentence for a crime that is subject to the fifty percent parole

eligibility rule and two separate sentences of five years, one of which

is subject to the seventy-five percent rule and the other of which is

subject to the fifty percent rule. As I read Fetzer, the DOC might

act within its discretion to treat the entire continuous sentence as

subject to the seventy-five percent rule, resulting in parole eligibility

after serving 26.25 years.2 But if the percentage of time served

statutes were applied to each of the sentences, the offender would

be eligible for parole in 18.75 years.

¶ 37 The court would say, I’m sure, that no one, much less the

DOC, has unbridled discretion and that the exercise of such

discretion is reviewable by this court. But how do the judges of this

court decide whether the parole eligibility difference reflected in my

hypothetical would be an abuse of discretion? At what point does

2 For purposes of this illustration, I have ignored any other credits
to which the offender may be entitled.

16
 the DOC abuse its discretion in the application of such a rule? Is

there some percentage deviation that renders the exercise of

discretion unreasonable? I can’t perceive any principled basis to

make such determinations.

¶ 38 We exercise appellate jurisdiction in many circumstances

requiring us to determine whether a lower court has properly

exercised its discretion, and sometimes the questions are close. As

with the operation of executive departments, judicial discretion is

an essential component of the operation of the judicial branch. But

when the legislature has spoken on the precise issue and when the

vagaries of such executive and judicial discretion can be avoided by

the application of clear statutes, I see no reason or justification to

go the discretion route.

¶ 39 Accordingly, while I join the court’s opinion, the supreme court

is not itself bound by Fetzer and I respectfully suggest that either

the supreme court take a second look at this or the General

Assembly clarify that it meant what it said when it prescribed the

percentages of sentences served to determine parole eligibility.

17