randy ankeney case: reply brief

8/10/2019 Randy Ankeney Case: Reply Brief

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SUPREME COURTSTATE OF COLORADO

2 East 14th AvenueDenver, CO 80203

COURT USE ONLY Supreme Court Case No.2013SA336

On Appeal from Honorable Judge David M.Thorson, District Court Fremont CountyCase No. 2012CV22

RANDAL ANKENEY,

Petitioner-Appellee,

v.

RICK RAEMISCH, EXECUTIVEDIRECTOR OF COLORADODEPARTMENT OF CORRECTIONS, LOU

ARCHULETTA, WARDEN OF THEFREMONT CORRECTIONAL FACILITY,

Respondents-Appellants.JOHN W. SUTHERS, Attorney GeneralJAMES X. QUINN, First Assistant

Attorney General, *Ralph L. Carr Colorado Judicial Center1300 Broadway, 10th FloorDenver, CO 80203Telephone: (720) 508-6610

FAX: (720) 508-6032E-Mail: [email protected] Number: 46394*Counsel of Record

REPLY BRIEF

DATE FILED: September 23, 2014 4:53 PMFILING ID: EEF84FA1BC375CASE NUMBER: 2013SA336


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Respondents-Appellants Rick Raemisch and Lou Archuletta,

through the Colorado Attorney General, respectfully submit the

following Reply Brief.


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TABLE OF CONTENTS

PAGE

i

CERTIFICATE OF COMPLIANCE .......................................................... 1

ARGUMENT ............................................................................................. 1

I. Ankeneys arguments regarding the law of the case are bothfactually and legally erroneous. ....................................................... 1

II. The Court of Appeals and district court erroneouslyconcluded that good time should be credited toward aninmates mandatory release date. .................................................... 2

III. Inmates have no right to earned time credit, and the CDOCproperly applied all earned time credit toward thecalculations of Ankeneys sentence. ............................................... 18

CONCLUSION ........................................................................................ 20


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TABLE OF AUTHORITIES

PAGE

ii

CASES

Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug.22, 2013)(unpublished) ....................................................... 10, 11, 13, 20

Badger v. Suthers, 985 P.2d 1042 (Colo. 1999) .................................. 9, 12

City of Pueblo v. Shutt Inv. Co., 28 Colo. 524, 67 P. 162 (1901) .............. 2

Giampapa v. Am. Family Mut. Ins. Co.,64 P.3d 230 (Colo. 2003) ........... 2

Hughes v. Jones, 3 P.2d 1074 (1931) ...................................................... 18

Linker v. Linker, 470 P.2d 882 (1970) .................................................... 18

Mercer v. Theriot, 377 U.S. 152 (1964) ..................................................... 2

Meyers v. Price, 842 P.2d 229 (Colo. 1992) ............................................. 20

Pearson v. Dist. Court, 924 P.2d 512 (Colo. 1996) .................................... 1

People v. McCreadie, 938 P.2d 528 (Colo. 1997) ....................................... 3

People v. Norton, 63 P.3d 339 (Colo. 2003) ............................................... 8

Rather v. Suthers, 973 P.2d 1264 (Colo. 1999), cert denied, 528

U.S. 834 (1999) ....................................................................................... 3Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989) ..................................... 20

Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990) ................................. passim

Verrier v. Colo. Dept of Corr., 77 P.3d 875 (Colo. App. 2003) ............... 20

STATUTES

16-11-310 (repealed 1988) ................................................................ 8, 11

16-11-310, 8A C.R.S. (1986) (repealed 1988) ......................................... 9

17-22.5-101, 6 C.R.S. (1998) ................................................................... 9

17-22.5-302, C.R.S. (2013) 19

17-22.5-302(1.5), C.R.S. (2013) 18,19


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TABLE OF AUTHORITIES

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17-22.5-302(4), 6 C.R.S. (2013).20

17-22.5-303(2), 6 C.R.S. (1998) ............................................................... 9 17-22.5-303(6), 6 C.R.S. (1998) ............................................................... 9

17-22.5-403(1), C.R.S. (2013) .............................................................. 3, 4

17-22.5-405, C.R.S. (2013) ...................................................................... 4

18-1-105(1)(a)(V), 6 C.R.S. (1998) .................................................... 8, 12

RULES

C.A.R. 28 .................................................................................................... 1C.A.R. 28(g) ................................................................................................ 1

C.A.R. 28(k) ............................................................................................... 1

C.A.R. 32 .................................................................................................... 1


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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, undersigned counsel certifies that:

The brief complies with C.A.R. 28(g). It contains 4,005 words,

excluding the caption, table of contents, table of authorities, certificate

of compliance, certificate of service, and signature block.

s/ James X. Quinn James X. Quinn


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ARGUMENT

I. Ankeneys arguments regarding the law of thecase are both factually and legally erroneous.

The district court initially granted Respondents motion to dismiss

Ankeneys claim for habeas corpus relief and permitted Ankeney to

proceed on his mandamus claim. Later the district court dismissed

Ankeneys mandamus claim. Ankeney appealed the district courts

order to the Colorado Court of Appeals.

The Court of Appeals addressed the question of whether

Ankeneys complaint set forth a claim upon which mandamus relief

could be granted. The Court of Appeals did not, and could not, address

the district courts denial of habeas relief and specifically ordered the

district court to address the merits of the habeas claim on remand.

After remand, Ankeney filed an Amended Petition. On remand,

the district court specifically granted habeas relief. Courts considering

whether or not to review one of their own cases are reminded that the

law of the case doctrine neither requires nor encourages courts to

support erroneous judgments. Pearson v. Dist. Court , 924 P.2d 512, 515

(Colo. 1996); Giampapa v. Am. Family Mut. Ins. Co. ,64 P.3d 230,


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243(Colo. 2003). Moreover, a decision of an intermediate appellate

court in a prior appeal remains subject to review by a higher court even

after retrial and a second round of appellate proceedings in the same

case. See Mercer v. Theriot , 377 U.S. 152, 153-54 (1964); City of Pueblo

v. Shutt Inv. Co. , 28 Colo. 524, 530, 67 P. 162, 164 (1901); Giampapa v.

Am. Family Mut. Ins. Co .,64 P.3d 230, 243 (Colo. 2003). Accordingly,

this Court may reach the substantive issues arising from the Court of

Appeals prior decision.

II. The Court of Appeals and district courterroneously concluded that good time should becredited toward an inmates mandatory releasedate.

The Court of Appeals and district courts construction of Colorado

law regarding the proper application of time credit is flawed. As noted,

in Colorado there are two types of time credit that may be awarded to

inmates: good time credit and earned time credit. Good time credits are

awarded for good conduct in prisons, such as obeying rules; earned time

credits may be awarded for substantial progress in rehabilitation or

work programs. Rather v. Suthers , 973 P.2d 1264, 1266 (Colo. 1999),


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cert denied , 528 U.S. 834 (1999); People v. McCreadie , 938 P.2d 528, 531

n.6 (Colo. 1997). For inmates serving sentences for crimes committed

after July 1, 1985, both types of credit are utilized to determine the date

that inmate become eligible for release to parole at the discretion of the

Parole Board; however, good time is not applied to determine when

inmates reach their mandatory release dates, the dates that they are

entitled to release from incarceration.

Ankeney correctly states that the only issue before this Court is

whether statutory good time applies to the determination of a Parole

Eligibility Date, or the date an offender is released from incarceration to

begin serving a mandatory period of parole. Ankeney argues that good

time applies to the release date, and that all offenders are entitled to

release from incarceration after serving fifty percent of the sentence

imposed by the sentencing court. Thus, under Ankeneys construction,

Ankeney is only required to serve a maximum of four years of

incarceration on an eight year sentence before released to serve a

mandatory period of parole.


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Initially, it is important to note that Ankeneys analysis is in

direct contravention of C.R.S. 17-22.5-403(1) which states that any

person sentenced for a class 2 through class 6 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.

C.R.S. 17-22.5-403(1) (emphasis added).

Ankeney asserts in his Answer Brief that because the Court of

Appeals did so, there is a need for a journey through the maze of prior

statutes and cases. However, this Court already ventured on that

journey, explaining the various parole schemes and the impact on time

computation in Thiret v. Kautzky , 792 P.2d 801, 804-805 (Colo. 1990).

As clearly explained in that case, the handling of sentences to

incarceration and parole has undergone several major shifts since 1979,

due to statutory enactments by the General Assembly, which have

impacted the manner in which good time credits and earned time

credits are applied to an inmates sentence. Id.


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As noted in Thiret , prior to 1979, prisoners received indeterminate

sentences, and release to parole was entirely at the discretion of the

Parole Board. Id. at 804. Under this system, good time credits merely

determined the date on which the inmate became eligible to be

considered for release to parole, at the discretion of the Parole Board.

Id. In 1979, the legislature adopted new determinate sentencing laws,

that departed from the previous discretionary parole system, and, in

effect, adopted a system of mandatory parole. Id. The effect of this

legislation was to remove discretion from the Parole Board over the

decision to release a prisoner to parole, and to tie release to parole to

the accumulation of time served, earned time credits, and good time

credits. Id . Under this mandatory parole scheme, both good time and

earned time applied to the offenders release date. Then, in 1985, the

General Assembly again enacted legislation affecting parole. The 1985

legislation once again granted the Parole Board discretion to grant or

deny parole prior to the expiration of a prisoners sentence. Id . at 805.

As a result, for prisoners serving sentences for crimes committed after

July 1, 1985, good time credit only applies to determine the date upon


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which they become eligible for release to parole, at the Parole Boards

discretion. Id.

This Court in Thiret specifically identified these various parole

schemes and the application of good time applicable to each.

Thus, in Colorado, with respect to the statutoryscheme governing parole, we have three generalclasses of persons now serving sentences in our

prisons:1. Those serving sentences for crimes committedprior to July 1, 1979.

2. Those serving sentences for crimes committedon or after July 1, 1979 but before July 1, 1985.

3. Those serving sentences for crimes committedon or after July 1, 1985.

Upon accruing sufficient credits to becomeeligible for parole, persons fitting under the

first and third categories may be granted ordenied parole at the discretion of the Parole

Board. Good time and earned time creditsearned by an inmate towards his release, for

persons coming under these categories, merely establish the date of paroleeligibility. A person fitting under the second

category, however, must be paroled uponreaching the parole date as determined bydeducting vested good time and earned timecredits from the persons sentence.


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Id. at 805 (emphasis added). Accordingly, prisoners like Ankeney who

are serving sentences for crimes committed after July 1, 1985, (the third

category) are only entitled to have good time credit applied toward their

parole eligibility dates.

The Court of Appeals and district court simply misread Thiret . In

Thiret , this Court utilized descriptive labels regarding the differing

parole schemes, including what it referred to as discretionary parole

and mandatory parole. Id. at 804-805. However, Colorados current

parole scheme is not a mandatory parole scheme as it existed between

1979 and 1985. Rather, Colorado currently has a discretionary parole

system, which is followed by a statutorily prescribed mandatory period

of parole after an offender discharges the incarceration portion of a

sentence. Specifically, after this Court issued its decision in Thiret ,

statutory sentencing laws were amended in 1993. The General

Assembly created a new sentencing scheme, such that for most felony

offenses (Felony 2 through Felony 6), there is both an incarceration

period as well as a pre-determined period of mandatory parole that also

applies to those felony sentences. See People v. Norton , 63 P.3d 339,


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343 (Colo. 2003). The 1993 changes to the law continue to afford the

Parole Board the discretion to release inmates to parole prior to

completing the entire term of the incarceration portions of their

sentences, which is consistent with the 1985 amendments returning

discretion over release to parole prior to completion of the incarceration

portion of the sentence to the Parole Board; however, the length of term

of parole to be served is set by statute and correlated to the level of

felony. Id . This was not a return to the mandatory parole system

discussed in Thiret (which was the parole system applicable to prisoners

serving sentences for crimes committed between July 1, 1979, and July

1, 1985), because under that parole scheme, the Parole Board had no

discretion regarding the date on which an inmate was released to

parole. Thiret , 792 P.2d at 804.

Indeed, this Court expressly noted that [i]t is important to

distinguish between mandatory parole as used in the sense that an

offender must be released or placed on parole upon expiration of a

sentence less good time and earned time deductions, see C.R.S. 16-11-

310 (repealed 1988); Thiret v. Kautzky , 792 P.2d 801, 804 & n.6, 805


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(Colo. 1990); and mandatory period of parole meaning a period of

parole that an offender must serve following his or her discharge from

imprisonment, see C.R.S. 18-1-105(1)(a)(V), 6 C.R.S. (1998). Badger v.

Suthers , 985 P.2d 1042, 1043 (Colo. 1999). 1

1 Badger is instructive. Badger was convicted of the crime of second-degree murder and the crime of escape. On December 17, 1986, thedistrict court sentenced Badger on the escape conviction to nine years inthe custody of the DOC, plus a mandatory period of parole. Thefollowing day, the district court sentenced Badger on the murderconviction to twenty-three years, to be served consecutively to hisescape sentence. Accordingly, the DOC calculated a continuoussentence for Badger of thirty-two years pursuant to 17-22.5-101, 6C.R.S. (1998). (When any inmate has been committed under severalconvictions with separate sentences, the department shall construe allsentences as one continuous sentence.). Because Badger committed

the escape after July 1, 1985, his escape sentence was governed by thediscretionary parole provisions of section 17-22.5-303(6), 6 C.R.S.(1998). Because Badger committed the murder between July 1, 1981and July 1, 1984, his murder sentence is governed by the mandatoryparole provisions of section 17-22.5-303(2), 6 C.R.S. (1998) and section16-11-310, 8A C.R.S. (1986) (repealed 1988). Badger argued that hiscontinuous sentence of thirty-two years should be governed by theparole provisions applicable to his murder sentence, since it is thelonger of the two sentences that make up his continuous sentence.

Because Badger was entitled to mandatory parole under his murdersentence, he reasoned that he was entitled to mandatory parole for hisone continuous sentence after he served 50% of his continuous sentenceor after he has served sixteen years (applying both good time andearned time to discharge date). The DOC argued that Badger was notentitled to mandatory parole until he served 100% of that portion of hissentence that is subject to discretionary parole (the escape portion of his


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In summary, the division of the court of appeals, and the district

court on remand, was mistaken in its analysis of the applicable statutes

and case law regarding the application of good time and earned time

credits toward an inmates mandatory release date. In the Ankeney

decision, the Court of Appeals interpreted the decision in Thiret v.

Kautzky so as to mean that the application of good time credits is

determined by whether an inmate is serving a sentence subject to a

discretionary parole scheme or a mandatory parole scheme. Ankeney ,

at 6-7. The Court of Appeals collapsed the three categories of prisoners

that this Court identified in Thiret into these two categories, apparently

characterizing the first and third categories identified in Thiret

(prisoners serving sentences for crimes committed before July 1, 1979

and after July 1, 1985) as being discretionary parole schemes, and

sentence) plus 50% of that portion of his sentence that is subject tomandatory parole (the murder portion of his sentence). Thus, accordingto the calculation of the DOC, Badger was not entitled to mandatory

parole until he has served nine years plus eleven and a half years, for atotal of twenty and a half years. This Court agreed with the DOC,expressly recognizing that Badger was not entitled to mandatory paroleuntil he has served all of his escape sentence (nine years) plus half ofhis murder sentence (eleven and a half years), for a total of twenty anda half years, although he could be released on discretionary parolebefore that date.


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characterizing the second category identified in Thiret (prisoners

serving sentences for crimes committed between July 1, 1979 and July

1, 1985) as being a mandatory parole scheme. Id. The Court of

Appeals then concluded that prisoners sentenced after the 1993

statutory amendments, who receive both an incarceration portion of

their sentence and a period of mandatory parole, fall within a

mandatory parole scheme. Id. at 8. This analysis is flawed. The

Court of Appeals replaced the Colorado Supreme Courts use of the

terms first category, second category, and third category with the

terms discretionary parole scheme and mandatory parole scheme

and erroneously determined that the 1993 amendments reinstituted

mandatory parole, and determined that for this reason, good time

credit must be applied toward an inmates release date, under the

holding in Thiret. However, the 1993 amendments did not reinstate

the mandatory parole scheme discussed in Thiret that applies to

prisoners sentenced between July 1, 1979, and July 1, 1985. As

explained above, the 1993 amendments maintained the post 1985

discretionary parole system. The 1993 amendments instituted a


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statutorily prescribed mandatory period of parole after an offender

discharges the incarceration portion of a sentence. As this Court noted

in Badger, [i]t is important to distinguish between mandatory parole

as used in the sense that an offender must be released or placed on

parole upon expiration of a sentence less good time and earned time

deductions, see C.R.S. 16-11-310 (repealed 1988); Thiret v. Kautzky ,

792 P.2d 801, 804 & n.6, 805 (Colo. 1990); and mandatory period of

parole meaning a period of parole that an offender must serve following

his or her discharge from imprisonment, see 18-1-105(1)(a)(V), 6

C.R.S. (1998). Badger v. Suthers , 985 P.2d at 1043 n. 1. In reaching

its decision in Ankeney , the Court of Appeals and district court failed to

make this distinction, and characterized the 1993 amendments as

reinstating the prior mandatory parole scheme, which they did not.

The 1993 amendments continue to afford the Parole Board the

discretion to determine whether an inmate should be released to parole

prior to serving the full term of incarceration. Because prisoners

remain eligible for release to parole at the discretion of the Parole

Board, prior to the natural expirations of the incarceration portions of


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their sentences, it makes sense to apply good time credits only toward

ones Parole Eligibility Date, but not the Mandatory Release Date, so as

to allow there to be distinction between the two.

Therefore, the Respondent Appellants respectfully submit that the

division that decided the unpublished Ankeney decision misread and

misapplied this Courts decision in Thiret, and was mistaken in its

determination as to the application of good time credits. Moreover,

after the Ankeney decision was released, multiple offenders citing the

unpublished Ankeney decision, have filed similar habeas corpus

petitions. Every district court receiving the post Ankeney filings has

expressly refused to follow the flawed analysis in the unpublished

Ankeney decision. (See Exhibit A , Order in Wallin v. Raemisch ,

Crowley District Court case no. 14cv2; Exhibit B , Order in Cowand v.

Raemisch , Fremont District Court case no. 14cv10; Exhibit C , Order in

Sumpter v. Raemisch , Fremont District Court case no. 14cv8; Exhibit

D , Order in Dixon v. Archuleta , Fremont District Court case no. 14cv43;

Exhibit E , Order in Crawford v. Archuleta , Fremont District Court

case no. 14cv36; Exhibit F , Order in Lovato v. Clements , Fremont


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District Court case no. 14cv23; Exhibit G , Wu v. Executive Director ,

Fremont District Court case no. 14cv24; Exhibit H , Brackeen v.

Raemisch , Fremont District Court case no. 14cv73; Exhibit I , Order in

Aragon v. Raemisch, Freemont District Court case no. 14cv66; Exhibit

J , Order in Vondette v Archuleta Fremont District Court case no.

14cv47; Exhibit K , Order in Sines v Raemisch Et Al , Fremont District

Court case no. 14cv15; Exhibit L , Langstaff v. Archuletta , Fremont

District Court case no. 14cv27; Exhibit M , Yeiser v. Raemisch, Fremont

District Court case no. 14cv78, Exhibit N , Garcia v. Carlson Et Al,

Fremont District Court case no. 14cv81; Exhibit O , People of the State

of Colorado v. Ackerman, Fremont District Court case no. 14cv87;

Exhibit P , Young v. Raemisch Et Al, Fremont District Court case no.

14cv90; Exhibit Q , Sharon v. Raemisch Et Al, Fremont District Court

case no. 14cv94; Exhibit R , Luark v. Colorado Department of

Corrections Time Computation Division, Fremont District Court case

no. 14cv41; Exhibit S , Romary v. Mary Carlson Et Al, Fremont District

Court case no. 14cv89; Exhibit T , Candelaria v. Raemisch Et Al,

Fremont District Court case no. 14cv97; Exhibit U , Moreno v.


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Raemisch Et Al, Fremont District Court case no. 14cv101; Exhibit V ,

Varney v. Carlson Et Al, Fremont District Court case no. 14cv99;

Exhibit W , Garcia v. Raemisch Et Al, Fremont District Court case no.

14cv100; Exhibit X , Smith v. Raemisch Et Al, Fremont District Court

case no. 14cv111; Exhibit Y , Montoya v. Carlson Et Al, Fremont

District Court case no. 14cv110; Exhibit Z , Mathews v. Raemisch Et Al,

Fremont District Court case no. 14cv109; Exhibit Aa , The People of the

State of Colorado v. Robert E. Charlton, Adams County Court case no.

8CR2833; Exhibit Ab , Cline v. Carlson Et Al, Fremont District Court

case no. 14cv84; Exhibit Ac , Harvey v. Raemisch Et Al, Bent County

District Court case no. 14cv10; Exhibit Ad , Walker v. Ploughe,

Fremont District Court case no. 14cv115; Exhibit Ae , Dougherty v.

Raemisch, Fremont District Court case no. 14cv116; Exhibit Af ,

Marquez v. Raemisch, Fremont District Court case no. 14cv113;

Exhibit Ag , Harrison v. Raemisch, Fremont District Court case no.

14cv118; Exhibit Ah , Major v. Raemisch, Fremont District Court case

no. 14cv123; Exhibit Ai , Chavez v. Raemisch et al, Fremont District

Court case no. 14cv126; Exhibit Aj , Faust v. Raemisch et al, Fremont


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Goodrich et al, Bent County District Court case no. 14cv4; Exhibit Az ,

Hardy v. CDOC Time Computation Division, Fremont County Court

case no. 14cv42; Exhibit Ba , Chaparro v. CDOC Time Computation

Division, Fremont County Court case no. 14cv57; Exhibit Bb , Barella

v. CDOC Time Computation Division, Fremont County Court case no.

14cv50; Exhibit Bc , Douglas v. CDOC Time Computation Division,

Fremont County Court case no. 14cv59; Exhibit Bd , Rodriguez v.

CDOC Time Computation Division, Fremont County Court case no.

14cv53; Exhibit Be , Dutton v. CDOC Time Computation Division,

Fremont County Court case no. 14cv54; Exhibit Bf , Gingles v. CDOC

Time Computation Division, Fremont County Court case no. 14cv56;

Exhibit Bg , Amez Cua-Ruiz v. CDOC Time Computation Division,

Fremont County Court case no. 14cv49; Exhibit Bh , Dowd v. Pam

Plugh, Warden CMC Facilities, Fremont County Court case no.

14cv139; Exhibit Bi , Wilson v. Rick Raemisch, Bent County Court case

no. 14cv14; Exhibit Bj , Cuddie v. CDOC Time Computation Division,

Fremont County Court case no. 14cv55.). 2

2 This Court can take judicial notice of all of these cases. See Hughes v.


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III. Inmates have no right to earned time credit, andthe CDOC properly applied all earned time

credit toward the calculations of Ankeneyssentence.

As indicated, the issue before the Court is the proper application

of good time credit toward the calculation of Ankeneys sentence.

Nevertheless, Ankeney asserts in the Answer Brief that he had an

entitlement to certain types of earned time credit, namely, educational

earned time credits, and that such credits were not applied toward the

calculation of his Parole Eligibility Date and his Mandatory Release

Date. Inmates who are awarded earned time for participation in

education programs outlined under C.R.S. 17-22.5-302(1.5) shall

receive earned time pursuant to section 17-22.5-405 . C.R.S. 17-

22.5-302(1.5)(a) (emphasis added). For the purposes of clarification, as

explained in the Affidavit of Mary Carlson, all earned time credit that

Ankeney was actually awarded by the CDOC pursuant to 17-22.5-

405 was applied toward the calculation of both his Parole Eligibility

Jones, 3 P.2d 1074, 1076 (1931); Linker v. Linker , 470 P.2d 882, 887(1970). See also, Vento v. Colorado Nat. Bank , 985 P.2d 48 (Colo. App.1999) rehearing denied, and certiorari denied. (A court may take

judicial notice of the contents of court records in a related proceeding).


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Date and Mandatory Release Date, as it was earned by Ankeney. See

Affidavit of Mary Carlson, Exhibit B, Motion to Dismiss, paras. 8, 10,

CD Record, pp. 55-57. As earned time credit received for the conduct

outlined in C.R.S. 17-22.5-302(1.5) is awarded pursuant to section 17-

22.5-405, there is nothing in the record showing that the CDOC did not

apply educational earned time credits to Ankeneys sentence pursuant

to C.R.S. 17-22.5-302(1.5) any such earned time would ultimately be

awarded to Ankeney pursuant to section 17-22.5-405, which is exactly

the way that Ms. Carlson described it in her Affidavit.

Alternatively, to the extent that Ankeney contends he had a right

to educational earned time credit pursuant to C.R.S. 17-22.5-302,

and also that the CDOC should assume prospectively that he would be

awarded educational earned time credits in calculating his sentence,

this is not the case. Inmates have no right to receive earned time

credits of any type and the CDOC has no obligation to assume that an

inmate will receive earned time credits when calculating his sentence.

See C.R.S. 17-22.5-405 (for each inmate sentenced to the custody of

the department, or for each parolee, the department shall review the


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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 . . .); Meyers v. Price ,

842 P.2d 229, 231 (Colo. 1992). Inmates have no clear right to receive

earned time credits, and the CDOC has no duty to provide such credits.

Verrier v. Colo. Dept of Corr. , 77 P.3d 875, 878 (Colo. App. 2003). For

inmates convicted of offenses after July 1, 1985, not only is earned time

credit awarded at the discretion of the CDOC, even once it is awarded it

may be withdrawn at the discretion of the CDOC. 17-22.5-302(4),

C.R.S.; Renneke v. Kautzky , 782 P.2d 343, 345 (Colo. 1989). To the

extent Ankeney makes assertions to the contrary, he is incorrect.

CONCLUSION

For the reasons set forth in the Opening Brief and above, the

decision of the Colorado Court of Appeals in Ankeney v. Raemisch et al .,

Case No. 12CA1930; and the District Courts decision in 2012CV22,

should be reversed.


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JOHN W. SUTHERS Attorney General

/s/ James X. QuinnJAMES X. QUINN, 21729*First Assistant Attorney GeneralCorrections UnitCivil Litigation and Employment Law

Section Attorneys for Respondents-

Appellants*Counsel of Record


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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within Opening Brief upon all parties herein via ICCES on this 23 rd day of September, 2014,addressed as follows:

Davis LaneDanielle Jeffries1543 Champa Street, 400Denver, CO 80202

Marc B. Tull, Esq.P.O. Box 1935Elisabeth, CO [email protected]

/s/ Mariah Cruz-Nanio
mailto:[email protected]:[email protected]:[email protected]

randy ankeney case: reply brief

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