dissenting.
Although a remand for consideration of the question whether the defendant was erroneously deprived of 49 days of presentence confinement credit seems harmless enough, I fear the rationale of the majority opinion is capable of making considerable mischief. Because I also consider the majority's analysis misguided and its ultimate conclusion a mistake, I respectfully dissent.
While the majority's explanation of our sentencing scheme strikes me as oversimplified and its decision to construe the word "sentence," onee more, in one more context, as problematic, I do not see how there can still be any serious disagreement that a statutorily imposed period of parole is one component of a convicted felon's sentence. See People v. Norton, 63 P.3d 339, 344 (Colo.2003). To my mind, however, that is hardly the point. In my opinion, the significant question is not whether a parole term is part of the defendant's sentence, but whether a prison term and a statutorily mandated period of parole are fungible.
Until our parole system was revamped in 1993, this may at least have been an arguable proposition, but under the current regime, that is no longer the case. While parole supervision in this state had previously amounted to nothing more than an alternate method of serving a sentence to incarceration, that conceptual framework was abandoned, in favor of parole terms that are separate and distinct from terms of confinement. See Craig v. People, 986 P.2d 951, 958 (Colo.1999); see also Martin v. People, 27 P.3d 846, 850 (Colo.2001). At least in part to ensure that all felons continue to be supervised for an appropriate period of time following their release from prison, whether they were released with time remaining on their prison sentences or not, see Hearing on H.B. 98-1302 Before the House Judiciary Committee, 59th General Assembly, Ist Reg. Sess. (Feb. 16, 1998), the legislature created mandatory periods of parole, graduated according to the seriousness of the conviction and no longer subject to the sentencing discretion of the courts. See § 18-1.3-401(1)(a)(V), C.R.S. (2008).
Although a punitive sentence to confinement and a period of parole supervision are both measured in terms of time, they exist for substantially different purposes and are no more interchangeable than would be, for example, a prison term and a fine. Nor have we suggested anything to the contrary. In Norton, 63 P.3d 339, we credited a parolee's presentence confinement, following his arrest on a new charge, against the prison term he would be obliged to serve upon revocation of his parole. We there described this new period of confinement in terms of "the parole component of his previous offense," id. at 348, for the reason that the applicable statute required the conversion of his parole term "into an additional period of imprisonment of up to the remaining length of the parole period," Craig at 963, but we nowhere suggested that parole itself and prison terms are interchangeable.
Presumably, any challenge to the legality of a prison sentence, after the defendant has been released to parole supervision, will now be an acceptable procedure for seeking reduction of his parole term. For anything that appears in the majority's opinion, this will be the case, whether the defendant had already served his entire term of confinement or was released at the discretion of the parole board after merely becoming eligible for parole. Because I believe this result not only thwarts the legislature's intent in creating our current parole scheme, but also invites abuses of the process, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.