People v. Dixon

Justice MARTINEZ dissents, and Justice BENDER joins in the dissent.

Justice EID does not participate.

Eric Dixon petitioned this Court pursuant to C.A.R. 21 for relief in the nature of mandamus, directed to the Colorado Department of Corrections. Dixon seeks an order compelling the department to calculate his combined sentences by granting him 174 days of presentence confinement credit against his new sentence, rather than against two previous sentences being served at the time of the offense underlying this petition. We issued a rule to show cause why the department should not be considered in violation of the district court's sentencing order and why it should not be ordered to comply. Because we hold that the department is not in violation of the court's order, we discharge the rule.

I. In 2002, Eric Dixon was convicted of attempted possession of a schedule II controlled substance and distribution of marihuana, and sentenced to two, concurrent, six-year terms of imprisonment. The district court suspended those sentences, however, on the condition that Dixon successfully complete a drug rehabilitation program. In August 2004, before completing the program, Dixon was arrested for attempted aggravated robbery. In November 2004, the district court found that Dixon failed to complete the program successfully, and it imposed the original sentences to the Colorado Department of Corrections for his two prior convictions.

Dixon was subsequently convicted of the robbery charge, and on January 24, 2005, the El Paso County District Court sentenced him to the custody of the department for eight years. The district court calculated that Dixon should be awarded 174 days credit for time served while awaiting trial on his attempted aggravated robbery charge and noted that amount on the mittimus remanding him to the custody of the department. The mittimus also indicated that the sentence was to run concurrently with Dixon's existing sentences from the prior convictions.

Relying on section 18-1.3-405, C.R.S. (2005), the department applied the 174 days of presentence confinement credit in the robbery case to each of Dixon's existing sentences. Dixon complained to the El Paso County District Court, asserting that his presentence confinement should have been credited against his new sentence for attempted aggravated robbery, rather than his existing sentences. The district court treated Dixon's request as a motion for presentence confinement credit, and entered a minute order on October 26, 2005, stating: "In response to defendant's motion for 174 days credit for time served, submitted on October 12, 2005, Court sends DOC Time Release Defendant copy of original mitt, which did award Defendant 174 days credit."

Dixon now seeks relief from this Court pursuant to C.A.R. 21.

II. This Court has determined that C.A.R. 21 provides an appropriate procedural mechanism, absent any other adequate remedy, to mandate compliance by the department of corrections with trial court sentencing orders. People v. Ostuni,58 P.3d 531, 533 (Colo. 2002). In this context, we have made abundantly clear that where a question of presentence confinement credit has been litigated in the district court, the department is bound to enforce the district court's order unless and until it is reversed by a higher court. People v. Grangruth, 990 P.2d 697,701 (Colo. 1999) (ordering department pursuant to C.A.R. 21 to comply with sentencing court order directing it to apply presentence confinement credit to particular sentence); Meredithv. Zavaras, 954 P.2d 597, 602-03 (Colo. 1998) (ordering department pursuant to C.A.R. 21 to comply with sentencing order directing it to apply presentence confinement credit to particular sentence because existing sentence was discharged).

Absent an order clearly directing the department to apply presentence confinement credit in a particular manner, however, the credit for time served noted on a mittimus must be understood simply as a factual finding of the period of time the defendant spent in confinement prior to sentencing. Ostuni,58 P.3d at 534. As we observed in Ostuni, the legislature has tasked the sentencing court with noting the length of the defendant's presentence confinement on the mittimus, and the department with properly crediting this period of confinement against the defendant's sentence. Id. at 533-34; § 18-1.3-405, C.R.S. (2005). In the case of an offender serving a sentence for a previous offense at the time he commits a new offense, the statute requires the department to deduct presentence confinement credit from the existing sentence rather than the new sentence. Ostuni,58 P.3d at 534.

Unlike the express orders in Grangruth, 990 P.2d at 699, andMeredith, 954 P.2d at 599, the El Paso County District Court made no attempt to impose a specific method of calculation on the department. While the defendant in this case did file a motion in the district court seeking an order compelling the department to apply presentence confinement credit to his new sentence, the district court did not issue such an order. The district court's minute order does not mandate, or even suggest, that the department apply this credit to any particular sentence. It simply restates the court's intent that the defendant be credited for 174 days of confinement while awaiting trial and sentencing for attempted aggravated robbery.

There is no claim before this Court that the department has miscalculated or failed to credit the defendant's presentence confinement in the manner prescribed by statute. As we concluded in Ostuni, an annotation of credit for time served on a mittimus should not be presumed to exceed the trial court's statutory authority or to impose limitations on the department's ability to comply with its legislative mandate, without a clear intention to do so. Id. The minute order in the present case does no more than restate the contents of the original mittimus. It therefore fails to manifest such an intention, any more than did the mittimus itself.

III. Because the petitioner has failed to demonstrate the violation of a clear duty to obey the district court's sentencing order, the rule is discharged.