COLORADO SURPREME COURT 2 East 14th Avenue Denver, CO 80203 ________________________________________ On Appeal from Honorable Judge David M. Thorson, District Court, Fremont County Case No. 2012CV22 RANDAL ANKENEY, Petitioner-Appellee v. RICK RAEMISCH, EXECUTIVE DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS; LOU ARCHULETTA, WARDEN OF THE FREMONT CORRECTIONAL FACILITY, Respondents-Appellants. ________________________________________ David A. Lane, #16422 Danielle C. Jefferis, #47213 KILLMER, LANE & NEWMAN, LLP The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 Telephone: (303) 571-1000; Fax: (303) 571-1001 Email: dlane@kln-law.com djefferis@kln-law.com

� COURT USE ONLY � Case No.: 2013SA336

ANSWER BRIEF

DATE FILED: September 2, 2014 3:44 PM FILING ID: FDD6C1EA16C62 CASE NUMBER: 2013SA336

i

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g).

Choose one: ■ It contains 9,219 words. It does not exceed 30 pages.

The brief complies with C.A.R. 28(k). For the party raising the issue:

It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record, not to an entire document, where the issue was raised and ruled on.

■ For the party responding to the issue:

It contains, under a separate heading, a statement of whether such party agrees with the opponent’s statements concerning the standard of review and preservation for appeal, and if not, why not.

■ I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. KILLMER, LANE & NEWMAN, LLP

David A. Lane

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................. iv

STATEMENT OF ISSUES PRESENTED ………………………………………………….1

1. Does the law require that all good time, earned time and educational earned time accumulated by a prisoner be counted in figuring out that prisoner’s mandatory release date if that prisoner is subject to a mandatory term of parole upon completion of incarceration? …………………………………..3

2. Is a writ of habeas corpus an appropriate remedy when an individual is being held on parole beyond a statutory discharge date? ………………………… 3

STATEMENT OF THE CASE ........................................................................................... 3

COURSE OF PROCEEDINGS BELOW…………………………………..………………. 3 FACTS……………………………………………………………………………….5 ARGUMENT……………………………………….. ……………………….…….…6

I. The Colorado Court of Appeals was correct in holding that the current state of the law requires that any offender subject to a term of mandatory parole, such as Ankeney, must be awarded statutorily mandated earned time, good time and educational earned time in the calculation of that offender’s mandatory release date from prison and the commencement of the required period of parole ……….…………………………………..……………….. 6

A. Relevant Statutes ……………….……………….………………. 7

B. The Proper Method for Calculating Ankeney’s PED …..……… 11

C. The COD Formula Used in Setting Ankeney’s PED …….…….. 12

iii

D. What the Law Demands in Calculating Ankeney’s MRD …...… 15

E. Basic Principles of Statutory Construction Mandate This Result..18

F. Relevant Case Law …………………………………………….. 22

G. Ankeney Was Not Credited With Any Good Time Despite his Having Accumulated In It Violation of § 301 …………………. 25

H. DOC Failed To Use Discretion In Not Counting Education Earned Time ……………………………………………………………. 28

I. No Rational Distinction Can Be Made For Applying § 301 Good Time ……………………………………………………………. 28

J. The Parole Board’s Discretion To Grant Or Deny Parole Exists Only Between The Dates Of The PED and The MRD …...……. 31

II. The Court Below Correctly Concluded That Ankeney Should Be Discharged From Parole Whether Or Not He Named The Parole Board As A Party ………………………………………………………...……………. 37

CONCLUSION……………………………….……………………………………...38

CERTIFICATE OF SERVICE .......................................................................................... 40 ADDENDUM ………………………………………………………………………………….. 41

iv

TABLE OF AUTHORITIES

CASES PAGES

Ankeney v. Clements,

Record, p. 20-33, 94-203…………………………..……….….…………1, 5

BP Am. Prod. Co. v. Patterson,

185 P.3d 811, 813 (Colo. 2008) ………………………………………..… 20

Bynum v. Kautzky,

784 P.2d 735, 736, 739 (Colo. 1989) ……………………………...…. 23, 24

Kestler v. N.C. Local Governmental Emples. Re. Sys.,

808 F. Supp. 1220, 1224 (W.D.N.C. 1992) …………………...………….. 38

Martin v. People,

27 P.3d 846, 848 (Colo. 2001) …………………………………………… 20

Meyers v. Price,

842 P.2d 229, 230 (Colo. 1992) ………………………………....……. 28-29

Nowak v. Suthers, et. al.,

320 P.3d 340, 345 (Colo. 2014) ……………………………………… 19-20

Pa. Bureau of Corr. V. United States Marsals Serv.,

474 U.S. 34, 43 (1985) …………………………………………………… 20

Pennobscot, Inc. v. Bd. Of Cnty. Comm’rs,

642 P.2d 915, 922 (Colo. 1982) ……………………………………….…. 21

People v. Black,

915 P.2d 1257, 1258-59, 1262 (Colo. 1996) ……………………………... 24

People v. Cooper,

v

27 P.3d 348, 352-354 (Colo. 2001) ……………………………………. 6, 19

People v. Gavin,

835 P.2d 603, 606 (Colo. App. 1992) ……………………………………. 20

People v. Hall,

87 P.3d 210 (Colo. App. 2003) ………………………………..…………. 36

People v. Luther,

58 P.3d 1013, 1017 (Colo. 2002) …………………………………….….. 37

People v. Norton,

63 P.3d 339, 343 (Colo. 2003) …………………………………………… 24

People v. Santisteven,

868 P.2d 415, 418 (Colo. App. 1993) ……………………………………..20

Rather v. Suthers,

973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S. 834 (1999) …….. 8

Simon v. Jones,

550 F. App’x 670 (10th Cir. 2014) …………………………………..……. 27

Superintendent, Mass. Corr. Inst. V. Hill,

472 U.S. 445, 454 (1985) ………………………………………………… 27

Thiret v. Kautzky,

792 P.2d 801, 805 (Colo. 1990) ……………………………..……….. 23, 36

STATUTES

C.R.S. § 2-4-201 ………… ………………………………………………………. 21

C.R.S. § 2-4-205 ……………………………………………………….…………. 20

vi

C.R.S. § 13-4-102 .......................................................................................................... 4

C.R.S. § 17-22.5-103 ……………………………………………...……………… 17

C.R.S. § 17-22.5-301 ……………………………………………………..….. passim

C.R.S. § 17-22.5-302 ………………………………………………………… passim

C.R.S. § 17-22.5-403 ………………………………………………………… passim

C.R.S. § 17-22.5-404 …………………..…………………………………………. 37

C.R.S. § 17-22.5-405 …………………………………………………..…….. passim

C.R.S. § 18-1.3-401 (1)(a)(V)(A) ………………………………………………… 36

C.R.S. § 1973 (1980 Repl. Vol. 1B) …………………………………………...…. 21

6 C.R.S. (2002) …………………………………………………………………… 37

OTHER AUTHORITY

C.A.R. 28(f) …………………………………………………………………..……. 7

C.R.C.P. § 106 …………………………………..…………………………………. 1

1

Petitioner-Appellee Randal Ankeney by and through undersigned

counsel respectfully files the following ANSWER BRIEF:

Statement Of The Issues Presented The State Appellant is appealing from a habeas corpus/mandamus

ruling in Fremont County district court in which in Mr. Ankeney alleged that

he was unlawfully being kept on parole. The district court agreed with

Ankeney and he was discharged from parole. In reality, the State is

attempting to reverse an unpublished decision by the Colorado Court of

Appeals, Ankeney v. Clements, (Record, p. 94-203) which formed the

cornerstone of the district court’s opinion. The Appellants failed to appeal

that decision.

Ankeney as a pro se inmate doing an eight-year sentence, filed a

habeas petition as well as a Complaint pursuant to C.R.C.P. § 106 seeking

mandamus relief in the district court of Fremont County. He alleged inter

alia that the Department of Corrections (DOC) was failing to credit good

time and educational earned time toward his mandatory release date

(hereinafter “MRD”) even though he was required to serve a three-year

mandatory parole term subsequent to his incarceration. Mr. Ankeney lost in

the Fremont County district court and took a pro se appeal from that

decision. In an unpublished opinion the Court of Appeals found, pursuant to

2

well settled precedent established by this Court, that because Ankeney was

subject to a mandatory term of parole following incarceration, he was

entitled to have all good time, earned time and educational earned time

which he had accumulated, counted toward the establishment of his MRD

from incarceration. The State of Colorado never appealed that decision.

Very shortly after the filing of the Court of Appeals opinion, without

ever having his parole voted on or approved by the Parole Board, having hit

his MRD, Ankeney was released from prison and placed on a term of

mandatory parole for three years, which led to the filing of his second

habeas/mandamus petition in Fremont County district court. Ankeney

alleged that because he was held past his MRD, that time must be counted

for his parole. The district court concluded that Ankeney was correct and he

was subsequently discharged from parole. The State has appealed only from

that ruling. This Court has jurisdiction only over the second habeas corpus

petition as the State never appealed to the Court of Appeals from any aspect

of the mandamus order and has thus waived any claims regarding the

recalculation of his time pursuant to the order of the district court. The

issues on appeal are:

3

1. Does the law require that all good time, earned time and educational earned time accumulated by a prisoner be counted in figuring out that prisoner’s mandatory release date if that prisoner is subject to a mandatory term of parole upon completion of incarceration?

2. Is a writ of habeas corpus an appropriate remedy when an individual is being held on parole beyond a statutory discharge date?

Statement Of The Case1

Ankeney, as previously stated, successfully appealed his original

habeas corpus case to the Colorado Court of Appeals. The State never

appealed that ruling. Just after to the Court of Appeals ruling, Ankeney was

released from prison and placed on parole. Ankeney contended that because

DOC had held him beyond his MRD, the time spent behind bars should

count as time taken off of his three-year period of mandatory parole. The

district court agreed and Mr. Ankeney was discharged from parole, thus

inspiring this appeal by the State.

Course Of Proceedings Below

When Appellees filed no appeal, the Court of Appeals remanded the

case to the district court. There, the court issued a mandamus order requiring 1 It is noteworthy that throughout its Brief, Appellant continually refers to the events surrounding Ankeney’s successful prosecution of his original habeas petition which resulted in the Court of Appeals ruling. (e.g. Brief, pps. 3-5). Because the State never appealed that ruling this appeal is, in effect, an untimely effort by the State to overturn the Court of Appeals decision in Ankeney.

4

Appellants to correctly calculate Ankeney’s MRD. That recalculation took

his MRD from the DOC-calculated date of August 28, 2013 to the correct

date of October 28, 2010. The district court in Ankeney’s subsequent effort

to end his parole, held that Mr. Ankeney’s three year period of mandatory

parole would have ended no later than October 28, 2013, and accordingly,

granted Mr. Ankeney’s habeas petition ordering his immediate release from

parole.2

2 Despite the district court’s order, Appellants did not immediately release Ankeney, who continued to report to parole until the mandamus order was processed and the new MRD updated in the department’s system.

Because the State never appealed from the Court of Appeals

decision, the MRD for Ankeney which was set pursuant to the mandamus

and not appealed, is law of the case and cannot be disturbed by this Court.

This recalculation was not a habeas ruling, which is appealable to this Court,

but a mandamus ruling which is not. Because the mandamus (not the

habeas) resulted in a discharge from parole date of October 28, 2013, and

because the Appellants never appealed from that calculation, whatever this

Court decides to do in this case is essentially moot as applied to Ankeney.

The two forms of relief, mandamus and habeas are very closely

related in context of this case, however, this Court does not have jurisdiction

over any mandamus orders in the court below when no appeal was filed in

the Court of Appeals. See C.R.S. § 13-4-102.

5

Facts On January 4, 2008, Ankeney was sentenced in Larimer County

District Court to an eight-year prison term to be followed with a three-year

period of mandatory parole. He was credited with 75 days of pretrial

confinement. All parties agree that the Larimer County case was his

controlling sentence for purposes of this Court’s analysis.

Ankeney had no disciplinary issues, was complying with all of the

programs set up for him while incarcerated including the Fremont

Correctional Facility’s incentive living unit program, the education program,

the drug and alcohol program and the “7 Habits” program. He helped teach

G.E.D. classes to other inmates. All of this information was included in the

district court file prior to the Court of Appeals decision in Ankeney. (Record

pps. 20-33). At no time has the State ever disputed that Ankeney has met all

of the conditions precedent to obtaining good time, earned time and

educational earned time, all of which are provided for by Colorado statutes.

The only significant issue before this Court is whether Ankeney

should have been credited for his good time accumulated pursuant to C.R.S.

§ 17-22.5-301 and his educational earned time pursuant to C.R.S. § 17-22.5-

302 in order to set his MRD. No party disputes that he had accumulated

6

these credits and no party disputes that DOC did not apply them in setting

his MRD.

ARGUMENT

I. The Colorado Court of Appeals was correct in holding that the current state of the law requires that any offender subject to a term of mandatory parole, such as Ankeney, must be awarded statutorily mandated earned time, good time and educational earned time in the calculation of that offender’s mandatory release date from prison and the commencement of the required period of parole.

Standard of Review – Agreed that the standard is De novo

In what may be considered a vast understatement, this Court has held

that “[m]any changes have been made to the laws surrounding parole in the

past two decades, and interpretation of the statutes is a multi-faceted and

confusing task.” People v. Cooper, 27 P.3d 348, 352 (Colo. 2001). In

summary, this Court understood that after “various amendments to parole

statutes between 1979 and 1990, in 1993, the General Assembly enacted the

most significant change when it adopted a scheme of mandatory parole for

convicted felons.” Id. at 353.

7

A. Relevant statutes.3

It is helpful to firmly keep in mind that the only real issue before this

Court in this case is whether statutory good time pursuant to C.R.S. §17-

22.5-301, educational earned time pursuant to C.R.S. § 17-22.5-302 along

with statutory earned time pursuant to C.R.S. § 17-22.5-405 must be credited

toward determining an offenders mandatory release date (MRD) from prison

so that the offender may commence his or her mandatory period of parole.

The statutes involved in this case and the jargon used to describe various

parole-related events have been massively confusing over the years due to

changes in the law and the application of parole/release concepts and

terminology. In an effort to help simplify the statutory labyrinth, the

following is a summary of the relevant statutes

4

C.R.S. § 17-22.5-403 Parole Eligibility Date

:

5

3 See addendum reproducing the relevant statutes pursuant to C.A.R. 28(f). The statutes were highlighted by undersigned counsel in order to ease this Court’s review.

– This statute makes

most offenders, including Ankeney, parole eligible after serving fifty percent

4 It may be helpful to think of a sentence in terms of a timeline, with the offender beginning at the left side working left to right by serving time. At the same time, good time, earned time and educational earned time are accruing at the other end of the timeline and moving right to left toward the offender. When time served meets credits accumulated, an offender has hit the mandatory release date. 5 The PED in this case is not at issue. Appellants argue extensively that good time and educational earned time should only apply to the PED,

8

of their sentence less ten days per month of any earned time accumulated

pursuant to C.R.S. § 17-22.5-405. This statute sets an inmate’s discretionary

parole eligibility date (hereinafter PED). Appellants do not dispute this.6

“C.R.S. § 17-22.5-301, Good Time

Nowhere in the statute is there any mention of good time or educational

earned time. The PED is only set by halving a sentence and deducting any

earned time accumulated pursuant to § 405.

7

however the issue before this Court is not in the calculation of the PED, but the MRD.

– Each person sentenced for a

crime…whose conduct indicates that he has substantially observed all of the

rules and regulations of the institution or facility in which he has been

confined and has faithfully performed the duties assigned to him shall be

entitled to a good time deduction of fifteen days a month from his

sentence.” This statute is at the heart of the issue in this case. All inmates

situated as Ankeney, are entitled to fifteen days good time credit per month,

deducted from their sentence. It is not disputed that it is discretionary

whether DOC awards good time to any inmate, but DOC can only use its

6 DOC erroneously fails to calculate an inmate’s PED in this fashion, as this brief will point out. They ultimately get the right number for the wrong reasons. 7 Rather v. Suthers, 973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S. 834 (1999) held that good time credits are awarded for an inmate’s good behavior during incarceration, while earned time credits are awarded for substantial progress in rehabilitation or work programs.

9

discretion not to award it through inmate misconduct. It is undisputed that

Ankeney had no misconduct. (Record, p. 33). DOC claims that not only is

it within its discretion to award it, it is within its discretion whether to apply

it regardless of whether an inmate has misbehaved. Ankeney argues, and the

Court of Appeals agreed, that good time must be credited to an inmate’s

MRD absent misconduct by the inmate.

“C.R.S. § 17-22.5-302, [Educational] Earned Time – (1) In addition

to the good time authorized in §17-22.5-301, earned time, not to exceed

thirty days for every six months of incarceration, [five days per month] may

be deducted from the inmate's sentence upon a demonstration by the inmate

of progress in…” work, group living, counseling etc. Additionally, §

302(1.5)(a) provides that in addition to this five days per month, if the

inmate is compliant, he or she “shall receive earned time pursuant to

section 17-22.5-405.” Again, Appellants argue just as they argued on the

good time statute that DOC not only has discretion whether or not to award

it, but whether once awarded, it must be applied. Ankeney makes the same

argument against their position.

C.R.S. § 17-22.5-405, Earned Time – All inmates in Ankeney’s

position are entitled to ten days of earned time credit every month for

making progress in work and personal growth. DOC should credit earned

10

time in two ways. It should be used to set a PED pursuant to § 403, and it

should be used to help set the MRD pursuant to § 405. DOC should

calculate an inmate’s PED by halving the sentence and then further

deducting ten days per month for earned time as explicitly set forth in the

plain language of § 403 supra. The evidence shows however, that

Appellants believe that good time under § 301 is subsumed by the provisions

of § 403; the statute which cuts an inmate’s time in half in order to calculate

parole eligibility. DOC in the district court claimed that the fifty percent

eligibility date in § 403 is actually “good time” as defined in § 301. (See

affidavit of Mary Carlson, Record pps. 55-56). Despite this mistake, DOC

correctly calculated Ankeney’s PED by cutting his sentence in half and

deducting earned time from that number.

DOC also correctly uses earned time to calculate an inmate’s MRD by

taking ten days per month off the back end of an inmate’s sentence.

Inexplicably, however, DOC uses only this § 405 credit in calculating the

MRD of any inmate. DOC completely ignores § 301 good time and § 302

educational earned time credit for determining an MRD, thus forming the

only real issue in this entire case. In other words, in figuring the MRD, DOC

subtracts ten days per month off the back end (the right side of the timeline)

from an inmate’s sentence. They do not do the same with good time or

11

educational earned time. There is absolutely no statutory authority or case

law for distinguishing earned time (coming off the back end of an inmate’s

sentence to establish the MRD) and good time/educational earned time

(which DOC does not count toward an MRD or, as it turns out, anything else

in DOC’s calculus). It is Ankeney’s position, as well as that of the Colorado

Court of Appeals, that § 301 good time and § 302 educational earned time

must be given effect by the Appellants and that there is no basis in case law

or statute to apply earned time to an MRD but not good time and educational

earned time as well.

In order to simplify this extremely dense area of law, I will illustrate

the issues in this case by using Ankeney’s actual situation and walk this

Court through the labyrinth of statutes in order to demonstrate what should

have happened in Ankeney’s case compared and contrasted with what

actually occurred.

B. The Proper Method For Calculating Ankeney’s PED.8

Ankeney received an eight-year DOC sentence to be followed by a

mandatory term of parole for three years. On the first day of incarceration,

Ankeney, on an eight year sentence, would have had a discretionary parole

8 The reason the PED is at issue in this case is because Appellants argue repeatedly that Ankeney’s good time under § 301 was given to him in setting his PED. That is incorrect.

12

eligibility date of four years as mandated in § 403.9 After serving one month

of his sentence, because Ankeney was working at a job at DOC and

obtaining earned time, his PED was reduced by ten days earned time granted

pursuant to § 405. At that point under the provisions of § 403, his PED

moved toward him on a timeline and made him parole eligible after three

years, eleven months and twenty days. Because he was steadily employed

and doing a good job at DOC, every month, his PED continued to move

toward him at the rate of ten days per month earned time pursuant to § 403

as he accrued earned time under § 405. Had he accumulated all possible

earned time, his PED would have been at the two year, eight-month mark.10

C. The DOC Formula Used In Setting Ankeney’s PED.

DOC’s calculations were essentially correct in this regard.

Because Appellants extensively argue that good time and educational

earned time are used only to set a PED, in order to fully understand the flaws

in that argument, it is important to examine what DOC actually did in

calculating his PED. The definitive proof that DOC failed to correctly

9 Parole eligibility at the fifty percent mark has absolutely nothing whatsoever to do with the fifteen day per month sentence reduction found in § 301, the good time statute, despite the affidavit of Mary Carlson, the DOC time computation expert. (Record pps. 55-56). 10 Pursuant to § 403, the math is: 8 years x 50% = 4 years = 48 months x 10 days earned time per month = 16 months earned time. 4 years – 16 months = 2 years, 8 months = Ankeney’s PED.

13

implement the above-referenced parole statutes is seen in the Affidavit of

Mary Carlson, the time computation manager for DOC, (Record pps. 55-56).

In the original Ankeny habeas/mandamus petition, she provided an affidavit

outlining very clearly how DOC misuses § 301 good time and § 302

educational earned time in calculating both PEDs and MRDs. In paragraph

eight of her affidavit she says:

8. Offender ANKENEY’S PED is calculated to be past. C.R.S. § 17-22.5-403 requires fifty percent of the sentence be satisfied before the inmate becomes eligible for parole. ANKENEY’S PED was calculated as follows:

Eight years sentence, less seventy-five days presentence confinement credit (pscc), less seventy-five days for good time on the pscc, give a remainder of seven years and seven months for purposes of calculating the PED. To this time, credit of fifty percent for good time (fifteen days per month, per CRS 17-22.5-301) reduces his time left to serve to three years, nine months and fifteen days…and gives a resulting PED of October 19, 2011. Offender ANKENEY has not had any of his good time withheld during his incarceration. October 19, 2011 was further reduced by granting earned time in the amount of three hundred ten days and projected earned time in the amount of thirty days, resulting in a PED of November 9, 2010. (emphasis added)

Apparently, DOC understands that § 301 credit must be effectuated

somewhere in an offender’s parole calculus. DOC took the position in the

first habeas/mandamus proceeding that § 403’s parole eligibility at the fifty

14

percent mark is in fact the application of § 301 good time.11 Neither good

behavior nor bad behavior changes the PED of any inmate under § 403.

Section 403 has nothing whatsoever to do with good time. Mary Carlson

swears in her affidavit that § 403 is a “credit of fifty percent for good time

(“fifteen days per month, per § 301”) when in fact a credit of fifty percent

would be thirty days per month for every thirty days served. Fifteen days off

per thirty days served is a thirty-three percent time reduction. Her affidavit

discloses that DOC uses (or misuses) good time despite the clear language of

§ 403 mandating the use of earned time. The fact that the official in charge

of all DOC time computation believes fifteen days of credit for every thirty

days served is a fifty percent reduction in sentence is shocking. It is also

shocking that DOC ignores the plain language of these statutes.12

Calculating

the PED however, is not the issue before this Court. It is the MRD which is

of concern in this case.

11 This argument has been abandoned by the Appellants in this proceeding, as it is abundantly clear that § 403 has no relationship whatsoever to § 301. 12 Despite the fact that DOC did this calculation incorrectly by referencing good time, the ultimate calculation was correct as they cut his sentence in half (which they erroneously claim is good time) and deducted earned time. When Ankeney finally did meet the Parole Board for his discretionary early parole it was denied, which was within the Board’s discretion.

15

D. What The Law Demands In Calculating Ankeney’s MRD. While Ankeney’s PED moved toward him pursuant to the calculus

above, his MRD should also have been moving toward him assuming all

possible earned time pursuant to § 405 (ten days per month), educational

earned time pursuant to § 302 (thirty days every six months, which translates

into five days per month) and good time pursuant to § 301 (fifteen days

every month). Instead, DOC was moving his MRD toward him only at the

rate of ten days earned time per month under § 405. Therefore, good time

under § 301 and educational earned time under § 302 played no role

whatsoever in calculating either Ankeney’s PED (which is a correct

interpretation of § 403 as only earned time counts toward a PED) or his

MRD (which is an incorrect interpretation of §§ 301 and 302). In the world

of DOC time computation, that time simply disappears, thereby ignoring the

clear intent of the legislature in enacting these statutes.

Under a correct reading of the law, however, the maximum earned

time/educational earned time/good time credit any inmate can possibly get

toward calculating his or her MRD is therefore thirty days per month. For

every thirty days of incarceration actually served on the front end of a

sentence, thirty days can be taken off the back end pursuant to earned time,

good time and educational earned time credits.

16

The entire dispute pending before this Court is that DOC completely

ignores § 301 good time and § 302 educational earned time in calculating

Ankeney’s MRD, never crediting him with fifteen days per month good time

or five days per month educational earned time anywhere, despite exemplary

behavior and educational programs completed.

Ankeney should have been released when he hit his MRD at

approximately the four-year mark to serve his mandatory parole. The MRD

should have occurred when all of his time served on the front end of his

sentence met all of his good time, earned time and educational earned time

credits taken off of the back end of his eight-year sentence, which would

have been at the four-year mark.13

Mary Carlson’s affidavit shows that DOC only credited Ankeney with

the ten days per month deduction for earned time, off the back end of a

sentence but completely ignored his good time or educational earned time.

14

13 § 405 – ten days per month, education earned time § 302-five days per month, and good time § 301-fifteen days per month, all taken from the back end of his sentence.

Because DOC policy is to only apply § 405 earned time toward Ankeney’s

MRD, at the four year mark when Ankeney should have been hitting his

14 Indeed, if this Court reviews Ankeney’s official time computation reports and other DOC records, it will see that Ankeney was report free and was engaged in many educational programs, yet § 301 and § 302 credits are completely absent in the MRD calculation. (Record pps. 20, 26, 28, 30, 33, 36, 39, 40, 55).

17

MRD, DOC had taken only sixteen months off the back end of his sentence

for earned time making his MRD at the six-year-eight-month mark.

Nowhere did good time count for Ankeney, despite the plain language of

C.R.S. § 17-22.5-301(1) mandating that inmates shall receive good time

credits. Nowhere in DOC’s time computation did Ankeney ever receive a

single day off his sentence for good time or educational earned time despite

the concession by DOC that he accumulated both.

In her affidavit, Ms. Carlson states under oath:

10. Offender ANKENEY’S MRD is estimated to be April 19, 201415

, C.R.S. § 17-22.5-103 requires that no inmate be discharged from DOC until he has remained the full term for which he was sentenced. ANKENEY’S MRD on his eight year sentence is calculated as follows:

Eight years sentence, less seventy-five days pscc, gives a remainder of seven years, nine months and fifteen days remaining to be served as of the sentencing date until completion of the sentence. This is added to the SED of Larimer case 06CR1548, which is January 4, 2008, and gives a resulting MRD of October 19, 2015. [Ankeney was incarcerated on October 19, 2007 at the county jail] CRS § 17-22.5-405 allows inmates in the DOC to earn time in order to reduce their MRD. Offender ANKENEY has earned a total of one year and five months; he has also been projected to earn the full ten days per month in his last three months of incarceration and this thirty days also reduces his MRD. The reduction of earned time and projected earned time of one year and six months results in the currently estimated MRD of April 19, 2014.

15 Approximately six years, four months after he entered DOC instead of the four years he should have had

18

Good time pursuant to § 301 and educational earned time pursuant to

§ 302 are completely irrelevant to DOC’s calculations for an MRD. Had

DOC correctly calculated Ankeney’s MRD, he would have been released to

parole in approximately the fall of 2011. Instead, he was released on August

28, 2013 having served almost all of his parole period while incarcerated. In

the second habeas/mandamus petition in this case, the district court correctly

calculated that Ankeney had served most of his parole in prison with the

remainder commencing at the point of his release and he had therefore hit

his statutory discharge date (hereinafter “SDD”) and was released from all

supervision.

E. Basic Principles Of Statutory Construction Mandate This Result. The Court of Appeals achieved the correct result in this case by

analyzing the relevant cases and statutes. This is a very difficult analysis to

follow, albeit a correct one. Given the Gordian Knot of cases and statutes

set forth by Appellants, it is suggested that another way of approaching this

case my be more productive and less confusing. That is to start anew and

simply rely upon elementary principles of statutory construction to interpret

the relevant statutes. This Court will come to precisely the same conclusion

as the Court of Appeals, however this a road more easily traveled. Applying

19

basic principles of statutory construction to this case, the tortured history of

Colorado parole law outlined by Appellants becomes interesting, but not

dispositive or even particularly relevant.

C.R.S. §17-22.5-403 is the definitive statute setting forth the factors

for parole eligibility. The legislature has specifically stated that someone in

Ankeney’s position “shall be eligible for parole after such person has served

fifty percent of the sentence imposed upon such person, less any time

authorized for earned time granted pursuant to section 17-22.5-405.” No

other statute defines parole eligibility. The only reference to any time credit

for determining the PED is the earned time credit pursuant to § 405. Neither

§§ 301 or 302 have anything whatsoever to do with determining a PED.

This is critically important because the major thrust of Appellants’ entire

argument to this Court is, that despite § 403’s explicit commands regarding

calculating parole eligibility Appellants argue that those two statutes are to

be applied only in defining an inmate’s parole eligibility. (Brief, pps. 8, 9,

16, 17, 19, 20, 21-24).

Basic principles of statutory construction tell this Court that the word

“shall” means that there is no discretion involved in the application of this

law. People v. Cooper, 27 P.3d 348, 354 (Colo. 2001); Nowak v. Suthers, et

20

al., 320 P.3d 340, 345 (Colo. 2014); People v. Santisteven, 868 P.2d 415,

418 (Colo. App. 1993) ("The word 'shall' is mandatory.").

Further, when a statute definitively addresses a specific circumstance,

it must be deemed the controlling authority on that point. Any general

statutes or case law to the contrary must yield to the specific intent of the

legislature as set forth in the statute which specifically deals with the issue at

hand. Pa. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43

(1985); BP Am. Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008);

Martin v. People, 27 P.3d 846, 848 (Colo. 2001); C.R.S.§ 2-4-205 (the

specific provision must prevail over the general provision).

The good time statute, § 301, prima facie unambiguously mandates a

deduction from an inmate’s sentence:

17-22.5-301. Good time: (1) Each person sentenced for a crime committed…[see subsection 3 of the statute making this applicable to Ankeney], whose conduct indicates that he has substantially observed all of the rules and regulations of the institution…shall be entitled to a good time deduction of fifteen days a month from his sentence.

There is no ambiguity in this statute. People v. Galvin, 835 P.2d 603,

606 (Colo. App. 1992) (“There is a presumption that the word "shall," when

used in a statute, is mandatory…Hence, the General Assembly's use of the

word "shall" mandates good time deduction. Ankeney should have received

twenty-four months of good time when he hit the four-year mark of his

21

incarceration, deducted from his eight years. He did not receive this credit

although he earned it. On its face it applies to mandatory parolees and

discretionary parolees. All of the interpretations outlined by Appellants

juxtaposed with irrelevant case law notwithstanding, the plain terms of this

statute mean precisely what they say. It is presumed that the general

assembly in enacting a statute intended it to be effective. Section 2-4-

201(1)(b), C.R.S. 1973 (1980 Repl. Vol. 1B); Pennobscot, Inc. v. Bd. of

Cnty. Comm'rs, 642 P.2d 915, 922 (Colo. 1982) (Quinn, J., dissenting).

The earned time statutes are similarly straightforward:

17-22.5-302. [Educational] Earned time: (1) In addition to the good time authorized in section 17-22.5-301, earned time, not to exceed thirty days for every six months of incarceration, may be deducted from the inmate's sentence upon a demonstration…by the inmate that he has made substantial and consistent progress in [programs etc.]…(1.5) (a) In addition to the thirty days of earned time authorized in subsection (1) of this section, an inmate who makes positive progress…shall receive earned time pursuant to section 17-22.5-405.

These statutes prima facie tell us that educational earned time credits

(five days per month) are not mandatory but may be deducted, however if an

inmate is successful in these programs, earned time pursuant to § 405 is

mandatory.

C.R.S. §17-22.5-405. Earned time - earned release time - achievement earned time: (1) Earned time, not to exceed ten days for each month of incarceration or parole, may be deducted from the

22

inmate's sentence upon a demonstration to the department by the inmate…[progress in work, counseling etc.]”

This statute becomes mandatory through a reading of § 302, supra.

DOC views this as the only time which must come off the back end of

Ankeney’s sentence and they did in fact deduct it in their calculation.

Simple statutory construction obviates the need for a journey through

the maze of prior statutes and cases, however because the Court of Appeals

ventured down that path, on we go.

F. Relevant Case Law.

The case law defining these statutes is extraordinarily difficult to

follow because over the years, this Court has used terms which have

changed in meaning as the legislature has frequently amended the parole

statute. The upshot of the case law, as found by the Court of Appeals, is that

this Court has held that when an offender is subject to incarceration followed

by a mandatory term of parole, good time, earned time and educational

earned time must be credited toward that inmate’s MRD. If an inmate is not

subject to a mandatory term of parole and could ‘kill the number’ at DOC16

16 Meaning to be released from prison straight into the community with no parole supervision.

,

there is no MRD other than the expiration of the sentence. In that scenario,

good time, earned time and educational earned time need not count toward

23

release to parole but only to a PED. With a discretionary parole inmate, on

the other hand, if the Parole Board decides to exercise its discretion and

release that inmate prior to the expiration of his or her sentence, good time,

earned time and educational earned time can be used only to set that

inmate’s PED. An MRD is only used if incarceration is followed by parole.

If an offender is not subject to parole, there is no MRD, there is only a

statutory discharge date (SDD) which means that the entire sentence has

been served and the offender is released from custody. There is no parole

and he or she is now free from all supervision of any kind.

Good time credits reward an “inmate who substantially observes the

rules and regulations of the facility in which he is confined and who

faithfully performs his assigned duties.” Bynum v. Kautzky, 784 P.2d 735,

736 (Colo. 1989). Earned time credits may be earned “if the inmate makes

substantial progress in matters such as work and training.” Id. Progress in

educational programs offered at DOC also nets an offender educational

earned time. See C.R.S. § 17-22.5-405. The impact of good and earned

time depends upon whether the inmate is subject to a discretionary parole

scheme or a mandatory parole scheme. In Thiret v. Kautzky, 792 P.2d 801,

805 (Colo. 1990), this Court held that:

Upon accruing sufficient [good and earned time] credits to become eligible for parole, persons fitting under [a discretionary parole

24

scheme] may be granted or denied parole at the discretion of the Parole Board. Good time and earned time credits earned by an inmate towards his release, for persons coming under [this category], merely establish the date of parole eligibility. A person fitting under [a mandatory parole scheme], however, must be paroled upon reaching the parole date as determined by deducting vested good time and earned time credits from the person’s sentence.

See also, People v. Norton, 63 P.3d 339, 343 (Colo. 2003) (under a

mandatory parole scheme, the law “mandated that offenders who had

acquired certain ‘good time’ and ‘earned time’ credits must be released on

parole”); People v. Black, 915 P.2d 1257, 1258-59 (Colo. 1996) (under a

mandatory parole scheme, “an inmate who has earned sufficient good time

and earned time credits towards completion of his sentence is entitled to be

released on parole and the Colorado State Parole Board…has no discretion

to deny parole”); id at 1262 (Lohr, J., concurring in part and dissenting in

part) (“Under mandatory parole, a prisoner must be paroled after serving the

sentence less any good time and earned time credits. Under discretionary

parole, a prisoner becomes eligible for parole at such time, but release on

parole is discretionary with the parole authorities throughout the term of the

sentence.”); Bynum v. Kautzky, 784 P.2d 735, 739 (Colo. 1989) (under

mandatory parole scheme, good time and earned time provisions “were only

intended to establish the mandatory date of release on parole. Thus…with

respect to parole, the good time and earned time credits ‘vest’ only for the

25

purpose of determining parole eligibility, not for purposes of determining

whether reincarceration is possible once a former inmate has violated his

parole.”).

Norton stated that the 1993 amendments to the parole statutes

reinstituted mandatory parole for many offenders who committed crimes on

or after July 1, 1993. Ankeney was therefore subject to a mandatory parole

scheme. As such, he has an absolute right to have DOC apply to his MRD

all of his good time, earned time and educational earned time.

G. Ankeney Was Not Credited With Any Good Time Despite His Having Accumulated It In Violation Of § 301.

Appellant writes “During his incarceration, according to Ankeney, he

was awarded good time credit, which was applied to determine his parole

eligibility date, the date that he first became eligible to be considered by the

Parole Board for release to parole, at the Parole Board’s discretion.”17

17 It is unclear where Ankeney allegedly made this assertion as Appellant cites to nothing in the record supporting this claim. Ankeney denies ever arguing this.

(Brief, p. 8). This is simply not true. Ankeney maintains and has always

maintained that his PED must be set pursuant to § 403, which made him

parole eligible after completeing fifty percent of his sentence less earned

time given pursuant to § 405. Good time should have played absolutely no

role in determining Ankeney’s PED despite DOC’s affidavit that good time

26

was somehow used in the calculus. (Record pps. 55-56). DOC, in

calculating his PED erroneously used the words “good time” in cutting

fifteen days per month off his PED (“fifty percent” according to them). The

plain language of § 403 never mentions good time and only applies § 405

earned time. One of the central issues in this case is that the State cannot

point to a single day of good time which was applied to Ankeney during the

entire period of his incarceration despite his having accumulated fifteen days

per month during the entire period of his incarceration. Other than the bald

assertion by Appellant that good time was applied to Ankeney’s PED which

in itself is a violation of § 403, there is nothing in the record indicating that

he ever received any such credit. Ankeney’s good time apparently

disappeared. The State will not be able in its Reply Brief to point to a day of

good time applied to Ankeney despite his having accumulated the maximum

possible number of days of good time credit. In the world of DOC, good

time is a nullity and simply disappears. It cannot by law be used for

calculating a PED nor was it used for calculating Ankeney’s MRD. In

essence, DOC has de facto taken fifteen days per month away from Ankeney

simply by ignoring the good time statute.

The United States Supreme Court has held that once an inmate

acquires good time as Ankeney did, some due process must be invoked in

27

order to take it from that inmate. The Court has held that “…revocation of

good time does not comport with "the minimum requirements of procedural

due process," [citation omitted] unless the findings of the prison disciplinary

board are supported by some evidence in the record.” Superintendent, Mass.

Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The Tenth Circuit has long

followed this mandate by demanding some evidence in the record prior to a

prison official denying an inmate earned/good time. See e.g., Simon v.

Jones, 550 F. App'x 670 (10th Cir. 2014). The Appellants have de facto

revoked all of the good/educational earned time accrued by Ankeney by

simply ignoring it. The United States Supreme Court continued saying

“…the loss of such credits threatens his prospective freedom from

confinement by extending the length of imprisonment. Thus the inmate has a

strong interest in assuring that the loss of good time credits is not imposed

arbitrarily. [citation omitted]. Superintendent, Mass. Corr. Inst. 472 U.S. at

454 (1985).

DOC skipped officially crediting good time to Ankeney and jumping

through any hoops to withdraw it based upon inmate misconduct. The

statute is simply ignored. Good time disappears despite the absolute mandate

of the legislature that it shall be deducted from an inmate’s sentence.

28

H. DOC Failed To Use Discretion In Not Counting Education Earned Time.

C.R.S. § 17-22.5-302 (Education earned time statute) makes reference

to the good time statute stating that “[i]n addition to the good time

authorized in section 17-22.5-301 earned time, not to exceed thirty days for

every six months of incarceration, may be deducted from the inmate’s

sentence…” (emphasis added). § 301(1) however makes mandatory the §

405 deduction for earned time with virtually the same language used in §

301, the good time deduction. Why DOC deducts earned time but not good

time or educational earned time when the statutes are almost identical is

unclear.

I. No Rational Distinction Can Be Made For Applying § 405 Earned Time To An MRD But Not § 301 Good Time.

Appellants heroically attempt to explain why only § 405 earned time

is taken off the back end of any offender’s sentence but not good time or

educational earned time. (Brief pps. 21-24).

The first error made by Appellants is in citing to this Court’s opinion

in Meyers v. Price, 842 P.2d 229 (Colo. 1992) as standing for the outdated

proposition that good time and earned time only apply to an inmate’s PED.

(Brief p. 21). That case was decided in 1992 prior to the reinstatement of

29

mandatory parole which occurred in 1993.18

Appellants’ argument flies in the face of common sense. Earned time

while on parole simply means that a parolee who is engaged in work, study,

and programming generally, should be rewarded with a time cut from parole.

Good time, by its own terms, can only apply to following the rules and

regulations of the prison. One cannot logically obtain good time for

Indeed, Meyers pleaded guilty

in 1988. Id. at 230. That case dealt with a discretionary parole situation and

not a mandatory parole. Appellant’s go on to state that the legislature

amended C.R.S. § 17-22.5-405(5) to make non-violent inmates who were on

parole, eligible for earned time credits while on parole. Appellant’s argue

that this is evidence that earned time must be given to a parolee who has

long ago passed his PED (as he’s already on parole) therefore earned time

cannot only apply to the setting of a PED. (Brief, p. 22). It appears that the

argument made by Appellants is that because a parolee cannot obtain good

time while on parole, good time must only apply to that inmate’s PED as per

the Meyers decision. The argument goes that the legislature could have

included good time but chose not to therefore good time should not be used

in setting an MRD.

18 This is typical of the confusion in this area of law. Both federal and state courts are very confused by the cases because in order to understand the cases, one must also understand the ever-changing statutory landscape which can nullify a case within days of its publication.

30

following any rules and regulations of society. When society’s rules are

violated by a parolee, (also known as reoffending) reincarceration for a new

offense is the upshot.

Appellants argue that a legislative amendment in 2009, C.R.S. § 17-

22.5-405(6), mandates that DOC’s time computation office and the Parole

Board are required to schedule earned release time for inmates convicted of

Class 4 and 5 felonies “up to sixty days prior to the mandatory release date

and for inmates convicted of class 6 felonies up to thirty days prior to the

mandatory release date” for some inmates. (Brief, pps. 23-24). Appellants

argue that this evinces an intent by the legislature to apply earned time to the

back end of an inmate’s sentence in setting an MRD. Because there is no

mention of good time, the legislature must have intended to exclude good

time from being a factor in setting an MRD. Again, good time is

automatically assumed to be accrued absent any discipline and earned time

requires by statute that someone be reviewing objective criteria of progress,

programs and the like, which takes more time than noting an absence of

discipline. In any event, this is far from a clear statement by the legislature

that earned time and good time should not be treated identically when

calculating an MRD.

31

J. The Parole Board’s Discretion To Grant Or Deny Parole Exists Only Between The Dates Of The PED And The MRD.

Appellant erroneously states in its Opening Brief that “Ankeney was

granted discretionary parole.” (Brief, p. 4). This was not discretionary

parole. Ankeney hit his DOC-calculated MRD (two years later than it

should have been) when he was finally automatically paroled and the Parole

Board never voted to parole him. He was simply released by DOC to parole

when he hit DOC’s erroneously calculated MRD.19 Why Appellants believe

this was a discretionary parole is unclear. In fact, most inmates on parole

never achieve parole status through a vote of the Parole Board. Virtually all

parolees simply hit their MRD and are released to parole with no

discretionary actions by the Board involved.20

19 Coincidentally that date was within days from when DOC was informed by the Court of Appeals that Ankeney had passed his MRD.

Indeed, Ankeney served most

of the time he was supposed to have been on parole while incarcerated at

DOC because of DOC’s failure to credit his good time or educational earned

time. That is why his second habeas petition was granted. Under the

correctly applied law in the Ankeney case, the Parole Board would have had

complete discretion to parole him between his PED of two-years-eight-

20 This is based solely upon anecdotal data. Undersigned counsel has interviewed hundreds of current DOC prisoners in conjunction with this and other cases.

32

months and his MRD of four years. The Board exercised its discretion and

denied him parole during that time period. All discretion vanished however

once Ankeney hit his MRD at the four year mark. Indeed, that is why DOC

refers to it a Mandatory Release Date.

A central argument repeatedly made by Appellants is that the current

law is a discretionary parole statute (Brief, pps. 13, 14, 18, 19, 20, 27, 29,

30). They argue that any parole decision for any inmate resides within the

sole discretion of the Parole Board. They completely ignore the fact that

when any inmate such as Ankeney hits his or her MRD, there is absolutely

no discretion whatsoever in the release decision. That inmate is placed on

parole regardless of the discretion of the Parole Board.

If, as Appellant argues, parole is completely within the discretion of

the Parole Board the only MRD for any inmate should be the entire term of

years imposed by the court at sentencing. Any MRD prior to the full

expiration of the incarceration portion of a sentence should be discretionary

with the Board if one follows Appellant’s logic. Obviously, this is not the

case and Appellants concede that § 405 earned time at the very least sets an

MRD somewhere before the expiration of the incarceration part of the

sentence imposed by the court.

33

Basic misunderstandings and mathematical errors plague Appellant’s

analysis. Appellant continually decries the “illogic” in Ankeney’s position,

arguing that good time and earned time may only be used to establish a PED

and not an MRD because “[a]ny other interpretation would render the parole

statutes meaningless because an inmate would be already entitled to

discharge when he is eligible for discretionary parole.” (Brief, p. 17). They

argue that “[a]pplication of good time to an inmate’s discharge21

As has already been demonstrated, this is simply mathematically

incorrect. Ankeney’s PED as established by §§ 403 and 405 would have

been at the two year, eight month mark. Had all good time, earned time and

educational earned time been applied to Ankeney’s MRD, his MRD would

have been at the four year mark. The PED is moved backwards by earned

time as is the MRD. It is a mathematical impossibility for the PED to be the

same as the MRD. Keeping in mind that the only credit statutorily moving

the PED is § 405 earned time, if Ankeney had not received any earned time

date

renders these statutes meaningless, because the offender is eligible for

release on the same date as he is eligible for discretionary parole.” (Brief, p.

19).

21 Sloppy use of language has confused these issues. Presumably the use of the words “discharge date” in the Appellants’ Brief refers to the MRD as opposed to the statutory discharge date when an offender is finished with his or her entire sentence including parole.

34

while incarcerated at DOC, under § 403 he would have had his PED at the

four year mark, (no ten days a month credit for earned time) however he

would have lost those same ten days per month earned time off the back end

of his sentence and he would only have received credit for fifteen days per

month good time. Instead of achieving thirty days off the back end for his

thirty days served, he would only be receiving fifteen days off the back end.

He would thus still owe twenty-four months before achieving his MRD. At

no time would any inmate’s PED be the same as his or her MRD, contrary to

the assertion of the State.

Appellants argue that there is a significant distinction between the

“mandatory parole” statute in existence between July 1, 1979 and July 1,

1985 which mandated that every inmate must be released at some point from

incarceration to parole, and the post 1993 amendment which mandates that

every inmate must be released at some point from incarceration to parole.

(Brief p. 14). While indeed the statutes differ, the upshot is precisely the

same. Under both systems, the worst inmate at DOC who got no credit of

any kind for good time, earned time or educational earned time would still

have to face a mandatory period of parole upon leaving DOC. That was true

for inmates in the 1979-1986 analysis and it is true for inmates in the post-

1993 analysis. The State is correct in arguing that the Parole Board

35

maintains complete discretion for granting parole “prior to the expiration of

the incarceration portion of his sentence” however that discretion evaporates

upon any inmate hitting his or her MRD. Ankeney would still be required to

be paroled even assuming an abysmal record of behavior/work/education at

DOC. With no time off the back end for earned/good/educational earned

time, he would have to serve every day of his eight years assuming the

Parole Board exercised its discretion and refused to parole him early under §

403. His MRD would be eight years and he would still have to serve a

three-year parole term. His SDD would be at the eleven-year mark when he

had completed every day of his incarceration and parole.

The distinction between the two mandatory parole schemes does not

make a difference in terms of the requirement that DOC credit good time,

earned time and educational earned time to an inmate’s MRD.

Apparently, DOC erroneously believed in Ankeney’s case that the §

403 parole eligibility statute is a like-kind substitution for good time. Section

403 however, is triggered by the passage of time served and § 405 earned

time and has nothing whatsoever to do with calculating good time.

The case law becomes confusing when Appellants cite discretionary

parole cases which decades ago used different terminology. This Court has

referred to an offender’s “MRD” which was the date of unconditional

36

release from any custody or supervision which today is referred to as an

offender’s statutory discharge date (SDD). Similarly, in prior cases a PED

was the date that an offender was required to be released from custody and

placed on parole. This is what DOC now refers to as the MRD. The

possibility of early parole for offenders subject to a mandatory term or

parole under § 403 did not exist when these cases were decided. In early

discretionary parole cases, good time under § 301 was applied toward what

would now be called an MRD, but when those cases were decided was

known as the PED.

Case law has consistently applied good time and earned time in the

same way. Whether they apply to an MRD or a PED depends upon whether

an offender is subject to discretionary parole or mandatory parole. See,

Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). Today, mandatory parole

inmates have an opportunity for early parole under § 403. See, C.R.S. § 18-

1.3-401(1)(a)(V)(A). An offender subject to mandatory parole faces a

sentence of imprisonment, a period of parole followed by perhaps another

prison term above and beyond the original sentence. People v. Hall, 87 P.3d

210 (Colo. App. 2003).

37

II. The Court Below Correctly Concluded That Ankeney Should Be Discharged From Parole Whether Or Not He Named The Parole Board As A Party.

Standard of Review – Agreed that the review is De novo

In its decision discharging Ankeney from parole, the court made the

following correct observation:

The attorney general raised a legitimate issue regarding the proper parties respondent, noting that only the parole board has the authority to release the petitioner from parole, and the parole board is not a party to this case. After ascertaining that the same unit of the attorney general's office represents both the department of corrections and the parole board, the Court decided to order the petitioner's immediate release from parole anyway. The Court cannot justify requiring the petitioner to submit to parole supervision while the parole board is substituted as a party defendant so that the same attorneys can make the same arguments before the court. The petitioner has already been required to serve 34 months of incarceration he should not have been required to serve.

(Record page 251). Had Appellants actually been concerned about this fact they should

have filed a motion to substitute the correct party long before the hearing

before the district court. The first time counsel for Ankeney heard this

argument was at the hearing. (Transcript p. 11, lines 4-6). The Court in

pointing out the futility of delay in order to name the Parole Board as a

party, and prolonging the illegal nature of Ankeney’s parole also gave

counsel for the Parole Board (Mr. Quinn, who is also counsel for DOC)

leave to file a motion to reconsider. (Transcript, p. 18). Mr. Quinn declined

38

that invitation.

"Parole" is a condition of constrained liberty involving a "release from

institutional custody." § 17-22.5-404(1), 6 C.R.S. (2002); People v. Luther,

58 P.3d 1013, 1017 (Colo. 2002). As the district court correctly concluded,

it would be a terrible waste of time and resources to reschedule a hearing,

and to keep Ankeney in a state of “constrained liberty” all for the purpose of

coming back to court with precisely the same lawyers making precisely the

same arguments with precisely the same result. As the federal court in

North Carolina noted:

While the Board of Trustees, as an agency or instrumentality of the state, cannot itself be sued, it is clear that its members can be sued in their official capacity for injunctive relief…It would be a glorification of form over substance to require the plaintiff to name the Board members individually so as to elude the jurisdictional bar of the Eleventh Amendment.

Kestler v. N.C. Local Governmental Emples. Ret. Sys., 808 F. Supp. 1220,

1224 (W.D.N.C. 1992).

CONCLUSION

For all of the foregoing reasons, the decision to grant habeas relief to

Mr. Ankeney for purposes of taking him off of parole was correct and the

judgment of the district court should be affirmed.22

22 Appellants in their Conclusion ask this Court to reverse the Court of Appeals in Ankeney v. Raemisch et. al.,12CA1930. The Appellants long ago

39

Respectfully submitted on this the 2nd day of September, 2014.

KILLMER, LANE & NEWMAN, LLP

/s/ David A. Lane David A. Lane, Reg. No. 16422 Killmer, Lane & Newman, LLC 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 dlane@kln-law.com

lost their right to ask this Court to reverse that case by failing to file any appeal. This Court obviously can overrule that case in this separate action but that case is not before this Court for purposes of a reversal.

40

CERTIFICATE OF SERVICE This certificate certifies that I have duly served the within ANSWER BRIEF on all parties herein via ICCES on this 2nd day of September, 2014 to the following: James W. Quinn Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720-508-6610 james.quinn@state.co.us /s/ Jamie Akard Jamie Akard

41

ADDENDUM

17-22.5-403. Parole eligibility

(1) Any person sentenced for a class 2, class 3, class 4, class 5, or class 6 felony, or a level 1, level 2, level 3, or level 4 drug felony, or any unclassified felony shall be eligible for parole after such person has served fifty percent of the sentence imposed upon such person, less any time authorized for earned time granted pursuant to section 17-22.5-405. However, the date established by this subsection (1) upon which any person shall be eligible for parole may be extended by the executive director for misconduct during incarceration. The executive director shall promulgate rules and regulations concerning when and under what conditions any inmate's parole eligibility date may be extended. Such rules and regulations shall be promulgated in such a manner as to promote fairness and consistency in the treatment of all inmates.

(2) (a) Notwithstanding subsection (1) of this section, any

person convicted and sentenced for second degree murder, first degree assault, first degree kidnapping unless the first degree kidnapping is a class 1 felony, first or second degree sexual assault, first degree arson, first degree burglary, or aggravated robbery, committed on or after June 7, 1990, and before July 1, 2004, which person has previously been convicted of a crime which would have been a crime of violence as defined in section 18-1.3-406, C.R.S., shall be eligible for parole after such person has served seventy-five percent of the sentence imposed upon such person, less any time authorized for earned time granted pursuant to section 17-22.5-405.

(b) The provisions of paragraph (a) of this subsection (2) shall not apply to persons sentenced pursuant to part 10 of article 1.3 of title 18, C.R.S.

(2.5) (a) Notwithstanding subsection (1) of this section, any

person convicted and sentenced for second degree murder, first degree assault, first degree kidnapping unless the first degree kidnapping is a class 1 felony, first degree arson, first degree burglary, or aggravated robbery, committed on or after July 1, 2004, shall be eligible for parole after such person has served seventy-five percent of the sentence imposed upon such person, less any time authorized for

42

earned time granted pursuant to section 17-22.5-405. (b) The provisions of paragraph (a) of this subsection

(2.5) shall only apply to: (I) A person convicted and sentenced for a crime

listed in paragraph (a) of this subsection (2.5) that is a class 2 or class 3 felony offense; or

(II) A person convicted and sentenced for a crime listed in paragraph (a) of this subsection (2.5) that is a class 4 or class 5 felony offense, which person has previously been convicted of a crime of violence as defined in section 18-1.3-406, C.R.S.

(3) Notwithstanding subsection (1) or (2) of this section, any

person convicted and sentenced for any crime enumerated in subsection (2) of this section, committed on or after June 7, 1990, and before July 1, 2004, who has twice previously been convicted for a crime which would have been a crime of violence as defined in section 18-1.3-406, C.R.S., shall be eligible for parole after such person has served seventy-five percent of the sentence served upon such person, at which time such person shall be referred by the department to the state board of parole which may place such person on parole for a period of time which does not exceed the time remaining on such person's original sentence. For offenses committed on or after July 1, 1993, such person shall be placed on parole for the period of time specified in section 18-1.3-401 (1) (a) (V), C.R.S. Section 17-22.5-402 (2) shall not apply to any such offender.

(3.5) (a) Notwithstanding subsection (1) or (2.5) of this section,

any person convicted and sentenced for any crime enumerated in subsection (2.5) of this section, committed on or after July 1, 2004, who has previously been convicted for a crime which would have been a crime of violence as defined in section 18-1.3-406, C.R.S., shall be eligible for parole after such person has served seventy-five percent of the sentence served upon such person, at which time such person shall be referred by the department to the state board of parole which may place the person on parole for the period of time specified in section 18-1.3-401 (1) (a) (V), C.R.S. Section 17-22.5-402 (2) shall not apply to any such offender.

(b) The provisions of paragraph (a) of this subsection (3.5) shall only apply to:

43

(I) A person convicted and sentenced for a crime listed in paragraph (a) of subsection (2.5) of this section that is a class 2 or class 3 felony offense; or

(II) A person convicted and sentenced for a crime listed in paragraph (a) of subsection (2.5) of this section that is a class 4 or class 5 felony offense, which person has twice previously been convicted of a crime of violence as defined in section 18-1.3-406, C.R.S.

(4) The governor may grant parole to an inmate to whom

subsection (2) or (3) of this section applies prior to such inmate's parole eligibility date or discharge date if, in the governor's opinion, extraordinary mitigating circumstances exist and such inmate's release from institutional custody is compatible with the safety and welfare of society.

(5) For any offender who is incarcerated for an offense

committed prior to July 1, 1993, upon application for parole, the state board of parole, working in conjunction with the department and using the guidelines established pursuant to section 17-22.5-404, shall determine whether or not to grant parole and, if granted, the length of the period of parole. The state board of parole may set the length of the period of parole for any time period up to the date of final discharge as determined in accordance with section 17-22.5-402. If an application for parole is refused by the state board of parole, the state board of parole shall reconsider within one year thereafter whether such inmate should be granted parole. The state board of parole shall continue such reconsideration each year thereafter until such inmate is granted parole or until such inmate is discharged pursuant to law; except that, if the inmate applying for parole was convicted of a class 1 or class 2 crime of violence, as defined in section 18-1.3-406, C.R.S., any class 3 sexual offense described in part 4 of article 3 of title 18, C.R.S., a habitual criminal offense as defined in section 18-1.3-801 (2.5), C.R.S., or of any offense subject to the requirements of section 18-1.3-904, C.R.S., the board need only reconsider granting parole to such inmate once every three years, until the board grants such inmate parole or until such inmate is discharged pursuant to law.

(6) For persons who are granted parole pursuant to subsection

(5) of this section, the division of adult parole shall provide parole

44

supervision and assistance in securing employment, housing, and such other services as may effect the successful reintegration of such offender into the community while recognizing the need for public safety. The conditions for parole for any such offender under this subsection (6) shall be established pursuant to section 17-22.5-404 by the state board of parole prior to such offender's release from incarceration. Upon a determination that the conditions of parole have been violated in a parole revocation proceeding, the state board of parole shall continue the parole in effect, modify the conditions of parole if circumstances then shown to exist require such modifications, which circumstances shall be set forth in writing, or revoke the parole and order the return of the offender to a place of confinement designated by the executive director for any period of time up to the period remaining on such person's sentence until the discharge date as determined by section 17-22.5-402 or one year, whichever is longer. In computing the period of reincarceration for an offender other than an offender sentenced for a nonviolent felony offense, as defined in section 17-22.5-405 (5), the time between the offender's release on parole and return to custody in Colorado for revocation of such parole shall not be considered to be part of the term of the sentence. The state board of parole may discharge an offender granted parole under this section at any time during the term of parole upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision.

(7) (a) For any offender who is incarcerated for an offense

committed on or after July 1, 1993, upon application for parole, the state board of parole, working in conjunction with the department and using the guidelines established pursuant to section 17-22.5-404, shall determine whether or not to grant parole. The state board of parole, if it determines that placing an offender on parole is appropriate, shall set the length of the period of parole at the mandatory period of parole established in section 18-1.3-401 (1) (a) (V) or 18-1.3-401.5 (2) (a), C.R.S., except as otherwise provided for specified offenses in section 17-2-201 (5) (a), (5) (a.5), and (5) (a.7). If an application for parole is refused by the state board of parole, the state board of parole shall reconsider within one year thereafter whether such inmate should be granted parole. The state board of parole shall continue such reconsideration each year thereafter until such inmate is granted

45

parole or until such inmate is discharged pursuant to law; except that, if the inmate applying for parole was convicted of any sex offense, as defined in section 18-1.3-1003 (5), C.R.S., a habitual criminal offense as defined in section 18-1.3-801 (2.5), C.R.S., or of any offense subject to the requirements of section 18-1.3-904, C.R.S., the board need only reconsider granting parole to such inmate once every three years, until the board grants such inmate parole or until such inmate is discharged pursuant to law, or if the person applying for parole was convicted of a class 2 felony that constitutes a crime of violence, as defined in section 18-1.3-406, C.R.S., the board need only reconsider granting parole to such person once every five years, until the board grants such person parole or until such person is discharged pursuant to law.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (7), for any sex offender, as defined in section 18-1.3-1003 (4), C.R.S., who is sentenced pursuant to the provisions of part 10 of article 1.3 of title 18, C.R.S., for commission of a sex offense committed on or after November 1,1998, the state board of parole shall determine whether or not to grant parole as provided in section 18-1.3-1006, C.R.S. If the state board of parole determines that placing a sex offender on parole is appropriate, it shall set an indeterminate period of parole as provided in section 18-1.3-1006, C.R.S. If the state board of parole does not release a sex offender on parole, it shall reconsider release on parole at least once every three years until the state board of parole determines the sex offender meets the criteria for parole specified in section 18-1.3-1006 (1), C.R.S.

(8) (a) For persons who are granted parole pursuant to

paragraph (a) of subsection (7) of this section, the division of adult parole shall provide parole supervision and assistance in securing employment, housing, and such other services as may affect the successful reintegration of such offender into the community while recognizing the need for public safety. The conditions for parole for any such offender under this paragraph (a) shall be established pursuant to section 17-22.5-404 by the state board of parole prior to such offender's release from incarceration. Upon a determination that the conditions of parole have been violated in a parole revocation proceeding, the state board of parole shall continue the parole in

46

effect, modify the conditions of parole if circumstances then shown to exist require such modifications, which circumstances shall be set forth in writing, or revoke the parole and order the return of the offender to a place of confinement designated by the executive director for any period of time up to the period remaining on such person's mandatory period of parole established in section 18-1.3-401 (1) (a) (V) or 18-1.3-401.5 (2) (a), C.R.S. Any offender who has been reincarcerated due to a parole revocation pursuant to this paragraph (a) shall be eligible for parole at any time during such reincarceration. The state board of parole may discharge an offender granted parole under this section at any time during the term of parole upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision. In making any such determination, the state board of parole shall make written findings as to why such offender is no longer in need of parole supervision.

(b) For sex offenders, as defined in section 18-1.3-1003 (4), C.R.S., who are convicted of an offense committed on or after November 1, 1998, and who are granted parole pursuant to paragraph (b) of subsection (7) of this section, the division of adult parole shall provide parole supervision and assistance in securing employment, housing, and such other services as may affect the successful reintegration of the sex offender into the community while recognizing the need for public safety. The conditions for parole for any sex offender shall be established pursuant to section 18-1.3-1006, C.R.S., and section 17-22.5-404 by the state board of parole prior to the sex offender's release from incarceration. Upon a determination in a parole revocation proceeding that the sex offender has violated the conditions of parole, the state board of parole shall continue the parole in effect, modify the conditions of parole if circumstances then shown to exist require such modifications, which circumstances shall be set forth in writing, or revoke the parole and order the return of the sex offender to a place of confinement designated by the executive director for any period of time up to the remainder of the sex offender's natural life. The revocation hearing shall be held and the state board of parole shall make its determination as provided in section 18-1.3-1010, C.R.S. Following reincarceration, the sex offender's eligibility for parole shall be determined pursuant to section 18-

47

1.3-1006, C.R.S. The state board of parole may discharge a sex offender from parole as provided in section 18-1.3-1006 (3), C.R.S.

(9) The state board of parole shall consider the parole of a

person whose parole is revoked either for a technical violation or based on a self-revocation at least once within one hundred eighty days after the revocation if the person's release date is more than nine months from the date of the person's revocation; except that a person whose parole is revoked based on a technical violation that involved the use of a weapon shall not be considered for parole for one year.

C.R.S. 17-22.5-403

48

17-22.5-405. Earned time - earned release time - achievement earned time

(1) Earned time, not to exceed ten days for each month of incarceration or parole, may be deducted from the inmate's sentence upon a demonstration to the department by the inmate, which is certified by the inmate's case manager or community parole officer, that he or she has made consistent progress in the following categories as required by the department of corrections:

(a) Work and training, including attendance, promptness, performance, cooperation, care of materials, and safety;

(b) Group living, including housekeeping, personal hygiene, cooperation, social adjustment, and double bunking;

(c) Participation in counseling sessions and involvement in self-help groups;

(d) Progress toward the goals and programs established by the Colorado diagnostic program;

(e) For any inmates who have been paroled, compliance with the conditions of parole release;

(f) The offender has not harassed the victim either verbally or in writing;

(g) The inmate has made positive progress, in accordance with performance standards established by the department, in the literacy corrections program or the correctional education program established pursuant to article 32 of this title.

(1.5) (a) Earned time, not to exceed twelve days for each

month of incarceration or parole, may be deducted from an inmate's sentence if the inmate:

(I) Is serving a sentence for a class 4, class 5, or class 6 felony or level 3 or level 4 drug felony;

(II) Has not incurred a class I code of penal discipline violation within the twenty-four months immediately preceding the time of crediting or during his or her entire term of incarceration if the term is less than twenty-four months or a class II code of penal discipline violation within the twelve months immediately preceding the time of crediting or during his or her entire term of incarceration if the term is less than

49

twelve months; (III) Is program-compliant; and (IV) Was not convicted of, and has not previously been

convicted of, a felony crime described in section 18-3-303, 18-3-305, 18-3-306, or 18-6-701, sections 18-7-402 to 18-7-407, or section 18-12-102 or 18-12-109, C.R.S., or a felony crime listed in section 24-4.1-302 (1), C.R.S.

(b) The earned time specified in paragraph (a) of this subsection (1.5) may be deducted based upon a demonstration to the department by the inmate, which is certified by the inmate's case manager or community parole officer, that he or she has made consistent progress in the categories described in subsection (1) of this section.

(c) Nothing in this subsection (1.5) shall preclude an inmate from receiving earned time pursuant to subsection (1) of this section if the inmate does not qualify for earned time pursuant to this subsection (1.5).

(2) The department shall develop objective standards for

measuring consistent progress in the categories listed in subsection (1) of this section. Such standards shall be applied in all evaluations of inmates for the earned time authorized in this section.

(3) For each inmate sentenced to the custody of the department,

or for each parolee, the department shall review the performance record of the inmate or parolee and may grant, withhold, withdraw, or restore, consistent with the provisions of this section, an earned time deduction from the sentence imposed. Such review shall be conducted annually while such person is incarcerated and semiannually while such person is on parole and shall vest upon being granted. However, any earned time granted to a parolee shall vest upon completion of any semiannual review unless an administrative hearing within the department determines that such parolee engaged in criminal activity during the time period for which such earned time was granted, in which case the earned time granted during such period may be withdrawn. In addition to any other sanctions, the executive director may refer to the district attorney all cases where the offender tests positive for the presence of drugs.

50

(3.5) In addition to the earned time deducted pursuant to subsection (1) of this section, an inmate working at a disaster site pursuant to section 17-24-124 shall be entitled to additional earned time in the amount of one day of earned time for every day spent at a disaster site.

(4) Notwithstanding any other provision of this section, earned

time may not reduce the sentence of an inmate as defined in section 17-22.5-402 (1) by a period of time that is more than thirty percent of the sentence. This subsection (4) shall not apply to subsection (6) or subsection (9) of this section.

(5) (a) Notwithstanding subsections (1), (2), and (3) of this

section, an offender who is sentenced and paroled for a felony offense other than a nonviolent felony committed on or after July 1, 1993, shall not be eligible to receive any earned time while the offender is on parole. An offender who is sentenced and paroled for a nonviolent felony offense committed on or after July 1, 1993, shall be eligible to receive any earned time while the offender is on parole.

(a.5) Notwithstanding the provisions of paragraph (a) of this subsection (5), an offender who is sentenced for a felony committed on or after July 1, 1993, and paroled on or after January 1, 2009, shall be eligible to receive any earned time while on parole or after reparole following a parole revocation.

(b) As used in this subsection (5), unless the context otherwise requires, a "nonviolent felony offense" means a felony offense other than a crime of violence as defined in section 18-1.3-406 (2), C.R.S., any of the felony offenses set forth in section 18-3-104, 18-4-203, or 18-4-301, C.R.S., or any felony offense committed against a child as set forth in articles 3, 6, and 7 of title 18, C.R.S.

(6) Earned release time shall be scheduled by the state board of

parole and the time computation unit in the department of corrections for inmates convicted of class 4 and class 5 felonies or level 3 drug felonies up to sixty days prior to the mandatory release date and for inmates convicted of class 6 felonies or level 4 drug felonies up to thirty days prior to the mandatory release date for inmates who meet the following criteria:

(a) The inmate has not incurred a class I code of penal

51

discipline violation within the twenty-four months immediately preceding the time of crediting or during his or her entire term of incarceration if the term is less than twenty-four months or a class II code of penal discipline violation within the twelve months immediately preceding the time of crediting or during his or her entire term of incarceration if the term is less than twelve months;

(b) The inmate is program-compliant; and (c) The inmate was not convicted of, and has not

previously been convicted of, a felony crime described in section 18-3-303, 18-3-305, 18-3-306, or 18-6-701, sections 18-7-402 to 18-7-407, or section 18-12-102 or 18-12-109, C.R.S., or a felony crime listed in section 24-4.1-302 (1), C.R.S.

(7) Beginning in the fiscal year 2012-13, the general assembly

may appropriate the savings generated by subsections (1.5) and (6) of this section to recidivism-reduction programs.

(8) Notwithstanding any provision of this section to the

contrary, after his or her first ninety days in administrative segregation, a state inmate in administrative segregation shall be eligible to receive earned time if he or she meets the criteria required by this section or any modified criteria developed by the department to allow a state inmate to receive the maximum amount of earned time allowable for good behavior and participation in any programs available to the state inmate in administrative segregation.

(9) (a) Notwithstanding any provision of this section to the

contrary, in addition to the earned time authorized in this section, an offender who successfully completes a milestone or phase of an educational, vocational, therapeutic, or reentry program, or who demonstrates exceptional conduct that promotes the safety of correctional staff, volunteers, contractors, or other persons under the supervision of the department of corrections, may be awarded as many as sixty days of achievement earned time per program milestone or phase or per instance of exceptional conduct, at the discretion of the executive director; except that an offender shall not be awarded more than one hundred twenty days of achievement earned time pursuant to this subsection (9).

(b) As used in this section, unless the context otherwise

52

requires, "exceptional conduct" includes, but is not limited to: (I) Saving or attempting to save the life of another

person; (II) Aiding in the prevention of serious bodily

injury or loss of life; (III) Providing significant assistance in the

prevention of a major facility disruption; (IV) Providing significant assistance in the

solving of a cold case, as defined in section 24-4.1-302 (1.2), C.R.S.;

(V) Acting to prevent an escape; or (VI) Providing direct assistance in a documented

facility or community emergency. C.R.S. 17-22.5-405

53

17-22.5-301. Good time

(1) Each person sentenced for a crime committed on or after July 1, 1979, but before July 1, 1981, whose conduct indicates that he has substantially observed all of the rules and regulations of the institution or facility in which he has been confined and has faithfully performed the duties assigned to him shall be entitled to a good time deduction of fifteen days a month from his sentence. The good time authorized by this section shall vest quarterly and may not be withdrawn once it has vested. No more than forty-five days of good time may be withheld by the department in any three-month period of sentence.

(2) Each person sentenced for a crime committed on or after

July 1, 1981, but before July 1, 1985, shall be subject to all the provisions of this part 3; except that the good time authorized by this section shall vest semiannually and no more than ninety days of good time may be withheld by the department in any six-month period of sentence.

(3) Each person sentenced for a crime committed on or

after July 1, 1985, shall be subject to all the provisions of this part 3; except that the good time authorized by this section shall not vest and may be withheld or deducted by the department.

(4) Nothing in this section shall be so construed as to prevent

the department from withholding good time earnable in subsequent periods of sentence, but not yet earned, for conduct occurring in a given period of sentence.

C.R.S. 17-22.5-301

54

17-22.5-302. Earned time

(1) In addition to the good time authorized in section 17-22.5-301, earned time, not to exceed thirty days for every six months of incarceration, may be deducted from the inmate's sentence upon a demonstration to the department by the inmate that he has made substantial and consistent progress in each of the following categories:

(a) Work and training, including attendance, promptness, performance, cooperation, care of materials, and safety;

(b) Group living, including housekeeping, personal hygiene, cooperation, social adjustment, and double bunking;

(c) Participation in counseling sessions and involvement in self-help groups;

(d) Progress toward the goals and programs established by the Colorado diagnostic program.

(1.3) Notwithstanding the provisions of subsection (1) of this

section to the contrary, after his or her first ninety days in administrative segregation, a state inmate in administrative segregation shall be eligible to receive earned time if he or she meets the criteria required by this section or any modified criteria developed by the department to allow a state inmate to receive the maximum amount of earned time allowable for good behavior and participation in any programs available to the state inmate in administrative segregation.

(1.5) (a) In addition to the thirty days of earned time

authorized in subsection (1) of this section, an inmate who makes positive progress, in accordance with performance standards, goals, and objectives established by the department, in the correctional education program established pursuant to section 17-32-105, shall receive earned time pursuant to section 17-22.5-405; except that, if, upon review of the inmate's performance record, the inmate has failed to satisfactorily perform in the literacy corrections or correctional education program, any earned time received pursuant to this paragraph (a) may be withdrawn as provided in subsection (4) of this section. For purposes of this paragraph (a), "positive progress", at a minimum, means that the person is attentive,

55

responsive, and cooperative during the course of instruction and satisfactorily completes required work assignments equivalent to the courses and hours necessary for advancement at a rate of one grade level per calendar year in the school district where such inmate was last enrolled.

(b) Repealed. (2) The department shall develop objective standards for

measuring substantial and consistent progress in the categories listed in subsection (1) of this section. Such standards shall be applied in all evaluations of inmates for the earned time authorized in this section.

(3) For each inmate sentenced for a crime committed on or

after July 1, 1979, but before July 1, 1985, the department shall review the performance record of the inmate and shall grant, consistent with the provisions of this section, an earned time deduction from the sentence imposed. Such review shall be conducted at least annually; except that, in the case of an inmate who has one year or less of his sentence remaining to be served, the review shall be conducted at least semiannually. The earned time deduction authorized by this section shall vest upon being granted and may not be withdrawn once it is granted.

(4) For each inmate sentenced for a crime committed on or

after July 1, 1985, the department shall review the performance record of the inmate and may grant, withhold, withdraw, or restore, consistent with the provisions of this section, an earned time deduction from the sentence imposed. Such review shall be conducted as specified in subsection (3) of this section; except that the earned time deduction authorized by this subsection (4) shall not vest upon being granted and may be withdrawn once it is granted.

(5) For each inmate sentenced for a crime committed on or

after July 1, 1987, the department shall not credit such inmate with more than one-half of his allowable earned time for any six-month period or portion thereof unless such inmate was employed or was participating in institutional training or treatment programs provided by the department or was participating in some combination of such employment, training, or treatment programs. This subsection (5) shall not apply to those inmates excused from such employment or

56

programs for medical reasons. C.R.S. 17-22.5-302

57

17-22.5-402. Discharge from custody

(1) No inmate shall be discharged from the department until he has remained the full term for which he was sentenced, to be computed on and after the date upon which the sentence becomes effective and excluding any time the inmate may have been at large by reason of escape therefrom, unless he is pardoned or otherwise released by legal authority.

(2) Notwithstanding subsection (1) of this section, the full term for which an inmate is sentenced shall be reduced by any earned release time and earned time granted pursuant to section 17-22.5-405, except as provided in section 17-22.5-403 (3) and (3.5).

(3) This part 4 shall not apply to any offender to whom section 17-22.5-104 (2) (a), (2) (b), (2) (c), (2) (d) (I), (2) (d) (II), or (2) (d) (III) applies.

C.R.S. 17-22.5-402