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                                                        ADVANCE SHEET HEADNOTE
                                                                       July 1, 2019

                                       2019 CO 70

No. 17SA285, Diehl v. Weiser—Habeas Corpus—Parole Eligibility.

      The supreme court determines how the department of corrections (“DOC”) should

calculate an inmate’s parole eligibility date when an inmate is released to serve

mandatory parole and receives additional concurrent sentences. The supreme court

concludes that the DOC’s interpretation of the statutory scheme for inmate and parole

time computations is reasonable. Accordingly, the supreme court holds that the new

parole eligibility date for an inmate who was reincarcerated for a parole violation and is

sentenced for additional offenses should be calculated using the beginning of the period

of mandatory parole as the start of the inmate’s one continuous sentence.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 70

                          Supreme Court Case No. 17SA285
                            Appeal from the District Court
                  Chaffee County District Court Case No. 16CV30043
                        Honorable Patrick W. Murphy, Judge

                                  Petitioner-Appellee:
                                  Scott Edward Diehl,
                                           v.
                               Respondents-Appellants:
 Philip J. Weiser, Colorado Attorney General; Jason Lengerich, Warden of Buena Vista
      Correctional Facility; and Dean Williams, Executive Director of the Colorado
                                Department of Corrections.

                                  Judgment Reversed
                                        en banc
                                      July 1, 2019

Attorneys for Petitioner–Appellee:
The Law Office of April M. Elliott, P.C.
April M. Elliott
     Denver, Colorado

Reppucci Law Firm, P.C.
Jonathan D. Reppucci
     Denver, Colorado

Attorneys for Respondents–Appellants:
Philip J. Weiser, Attorney General
Nicole Suzanne Gellar, First Assistant Attorney General
      Denver, Colorado


JUSTICE HART delivered the Opinion of the Court.
¶1    This habeas corpus appeal requires us to determine how the Department of

Corrections     (“DOC”)   should   apply       the   “one-continuous-sentence”   statute,

section 17-22.5-101, C.R.S. (2018), to an offender who was eligible for and released to

parole, committed additional crimes while on parole, and was sentenced for those

subsequent crimes concurrent with his initial sentence. The central question is whether

the offender’s original prison sentences should be included in the newly calculated

continuous sentence for purposes of determining a new parole eligibility date. We

conclude today that they should not.

                          I. Facts and Procedural History

¶2    Petitioner-Appellee, Scott Edward Diehl, pleaded guilty to three drug offenses in

2005. For each offense, he received a sentence that required him to serve a designated

number of years in prison as well as a period of mandatory parole. He began serving his

term of imprisonment for those sentences, which ran concurrently, on September 6, 2005.

¶3    Diehl was released from prison at the discretion of the state board of parole on

August 16, 2011, and he immediately began serving a five-year period of mandatory

parole. Diehl absconded from parole from February 14 to March 28, 2013. He was

arrested and returned to prison to serve the remainder of his mandatory parole term

incarcerated.   During this period of reincarceration, Diehl pleaded guilty in three

additional cases arising from the time when he was on parole. He received new sentences

that were to run concurrently with his outstanding sentences.

¶4    On December 8, 2016, Diehl filed a petition for writ of habeas corpus with the

district court, arguing that he was being unlawfully denied consideration for

                                           2
discretionary parole. He contended that the DOC erred in using August 6, 2011, the date

on which he was first released to mandatory parole, rather than September 6, 2005, the

date on which he was first sentenced to prison, to calculate his parole eligibility date.

¶5      The district court agreed with Diehl. In doing so, the court rejected the DOC’s

argument that Diehl’s “sentence to imprisonment” on his original convictions had been

discharged when he began serving his mandatory period of parole and was thus no

longer relevant to his new parole eligibility date. The district court concluded that a

sentence, for purposes of Colorado’s “one-continuous-sentence” rule, see § 17-22.5-101, is

comprised of two components—a period of incarceration and a period of mandatory

parole.    Although the imprisonment component of the sentence was statutorily

discharged    when    Diehl    began    serving    his   period   of   mandatory     parole,

see § 18-1.3-401(1)(a)(V)(D), C.R.S. (2018), the district court noted that the statutory

scheme provides that Diehl’s overall sentence was not “deemed to have [been] fully

discharged” until Diehl “either completed or [had] been discharged by the state board of

parole from the mandatory period of parole imposed pursuant to” section

18-1.3-401(1)(a)(V). Therefore, the district court concluded that the DOC was required to

calculate Diehl’s parole eligibility date using his first date of incarceration, September 6,

2005.




                                             3
¶6       The DOC appealed the district court’s order.1

                                       II. Analysis

¶7       We begin by addressing our jurisdiction to resolve this appeal. We then set out

the appropriate standard of review, noting that we give considerable deference to the

DOC’s interpretation of the statutory scheme for inmate and parole time computations.

Finally, we explain why the DOC’s interpretation of the relevant statutes is reasonable

and the new parole eligibility date for an inmate who was reincarcerated for a parole

violation and is then sentenced for additional offenses should be calculated using the

beginning of the period of mandatory parole as the start of the inmate’s one continuous

sentence.

                                     A. Jurisdiction

¶8       This case comes to us on appeal from a habeas corpus proceeding. Habeas corpus

is available to review claims that a petitioner is being denied the opportunity to be

considered for parole. Naranjo v. Johnson, 770 P.2d 784, 787 (Colo. 1989). Diehl filed a

writ of habeas corpus challenging the DOC’s calculation of his projected parole eligibility




1   The issues on appeal are:
         1. Whether the Department is required to include statutorily discharged
            prison components as part of an offender’s one continuous sentence for
            purposes of time computation?
         2. Whether the Department is required to calculate Diehl’s sentence
            “consistent with” a time computation example stated in the Final Order?


                                             4
date and arguing that he had effectively been denied at least six opportunities for

discretionary parole consideration. The district court agreed that Diehl was eligible for

parole consideration, and the DOC appealed. We have jurisdiction over appeals from

habeas corpus proceedings. Nowak v. Suthers, 2014 CO 14, ¶ 11, 320 P.3d 340, 343; see also

Colo. Const. art. VI, § 2 (providing that the supreme court shall have appellate

jurisdiction and a “general superintending control over all inferior courts”);

§ 13-4-102(1)(e), C.R.S. (2018) (prohibiting the Colorado Court of Appeals from having

initial jurisdiction over appeals from final judgments of writs of habeas corpus).

¶9     While awaiting the resolution of this appeal, Diehl was released on parole. The

DOC asks us to remand this case to the district court to consider whether this case is now

moot. We need not remand to make this determination. Mootness is a jurisdictional

prerequisite that can be addressed at any stage during the proceedings. See People v.

Shank, 2018 CO 51, ¶ 9, 420 P.3d 240, 243 (“[J]urisdictional prerequisite[s] . . . can be raised

at any time during the proceedings.”); see also Nowak, ¶ 12, 320 P.3d at 343 (electing to

address mootness, despite not being raised by the parties, because it could affect the

existence of a justiciable controversy).

¶10    A case is moot when a judgment would have no practical legal effect on the

existing controversy. Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426 (Colo.

1990). When issues become moot because of subsequent events, as here where Diehl no

longer has a claim that he is being unlawfully denied parole consideration, appellate

courts will generally decline to render an opinion on the merits. Id. at 426–27. However,

when the moot issue is one that is capable of repetition, yet evading review, we may

                                               5
address the merits of the appeal. Nowak, ¶ 13, 320 P.3d at 343–44; see also State Bd. of

Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 971 (Colo. 1997).

¶11     This is one of those instances. During the DOC’s 2018 budget hearing, then DOC

Executive Director Rick Raemisch explained that there are “roughly 2,700 offenders that

could potentially be affected by” our decision in Executive Director of Colorado Department

of Corrections v. Fetzer, 2017 CO 77, 396 P.3d 1108, as well as our ruling in the present case.

Colo.       Dep’t       of       Corr.,      Budget         Hearing        11–12       (2018),

http://leg.colorado.gov/sites/default/files/fy2018-19_corhrg.pdf

[http://perma.cc/EX3A-RSUQ] (“[T]he [department] is . . . awaiting clarification on the

court’s opinion on the Deihl [sic] case which could impact these same recalculations.”).

Due to the vast number of potentially impacted offenders, this issue is capable of

repetition. Additionally, because habeas petitions are generally subject to short statutory

time periods, this issue may continue to evade review. See Nowak, ¶¶ 15–16, 320 P.3d at

344 (addressing habeas petition even though the inmate reached his parole eligibility date

and was paroled at the time of appeal); see also Colo. Dep’t of Corr., Parole Div. v. Madison,

85 P.3d 542, 544 n.2 (Colo. 2004) (noting that the relatively short statutory time periods

associated with habeas proceedings make otherwise moot issues capable of repetition,

yet likely to evade review). Therefore, we will address the arguments presented here.

                                 B. Standard of Review

¶12     Because the parties do not contest Diehl’s underlying sentences or time credits, the

sole issue we must address is the application of sections 17-22.5-101 and 18-1.3-401 to the

calculation of Diehl’s parole eligibility date. We review issues of statutory interpretation

                                              6
de novo, giving deference to the DOC’s interpretation of statutes pertaining to its

responsibilities and authority when that interpretation is reasonable. See Fetzer, ¶ 17, 396

P.3d at 1113 (“[T]he department’s interpretation of its responsibilities to administer

relevant statutory mandates is entitled to great weight . . . .”).

¶13    Our primary responsibility when interpreting statutes is to give effect to the

General Assembly’s intent. Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007). We do so

by first looking to the plain language of the statute, reading words and phrases in context,

and construing them according to their common usage. Id. at 690. If the statutory

language is clear and unambiguous, it is unnecessary to resort to rules of statutory

construction, and our inquiry ends. “When statutory language conflicts with other

provisions, we may rely on other factors such as legislative history, the consequences of

a given construction and the goal of the statutory scheme to determine a statute’s

meaning.” Frazier v. People, 90 P.3d 807, 811 (Colo. 2004).

                           C. Parole Eligibility Calculations

¶14    As pertinent here, a defendant who receives a sentence for a class 2, 3, 4, 5, or 6

felony is eligible for parole when that person has served “fifty percent of the sentence

imposed . . . less any time authorized for earned time granted pursuant to section

17-22.5-405.” § 17-22.5-403(1), C.R.S. (2018). This seemingly clear command is often

complicated when a defendant has multiple convictions and therefore multiple

sentences. Indeed, this is the third time in just five years that we have confronted a

question of how the DOC should calculate an inmate’s parole eligibility date when he is

subject to several sentences. See Nowak, ¶ 40, 320 P.3d at 348 (concluding that the DOC

                                              7
must aggregate consecutive sentences when computing an inmate’s parole eligibility

date, even when doing so would result in the inmate becoming parole eligible before

serving at least fifty percent of the second sentence); see also Fetzer, ¶¶ 16–17, 396 P.3d at

1112–13 (determining that calculating an inmate’s parole eligibility date solely on the

basis of an inmate’s longest sentence, in place of a composite continuous sentence

accounting for all the inmate’s separate sentences, violates the one-continuous-sentence

rule).

¶15      We start with section 17-22.5-101, which requires that “when any inmate has been

committed under several convictions with separate sentences, the department shall

construe all sentences as one continuous sentence.” This “one-continuous-sentence” rule

requires the DOC, among other things, to combine the inmate’s sentences into one

composite continuous sentence, and then determine when that continuous sentence

begins to run. See Fetzer, ¶¶ 14, 16, 20, 396 P.3d at 1112–13; Nowak, ¶¶ 33–35, 40, 320 P.3d

347–48. We have explained that section 17-22.5-101 and section 17-22.5-403 must be read

together and that they require the DOC to determine parole eligibility based on this one

continuous sentence. Nowak, ¶ 35, 320 P.3d at 347.

¶16      The question here is how the DOC should calculate a new parole eligibility date

when an offender who is on parole violates conditions of parole and is both

reincarcerated to serve the remainder of his parole period and also convicted of

additional offenses for conduct that occurred while he was paroled. Diehl and the DOC

urge very different answers to that question.



                                              8
¶17    Diehl argues that calculation of his new parole eligibility date must include both

his period of mandatory parole and his sentence to imprisonment on the earliest offense

for which he is still serving either component. He argues that our prior cases make clear

that a “sentence” as that word is used in section 17-22.5-101 includes both a prison

component and a period of mandatory parole.             See Fetzer, ¶ 13, 396 P.3d at 1111

(identifying incarceration and parole as “component parts of a sentence”); People v.

Norton, 63 P.3d 339, 344 (Colo. 2003) (explaining that there is “no persuasive reason to

believe that mandatory parole was intended to be excluded from the scope of an

offender’s ‘sentence’” as “sentence” is used in the presentence confinement provision of

the sentencing statute); People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002) (“The penalties for

felony offenders under [the General Assembly’s 1993 scheme] include both an

incarceration component and a mandatory parole component.”). Therefore, he argues,

when he was reincarcerated to serve the remainder of his mandatory parole in prison, he

was still serving a sentence that included both a prison component and a mandatory

parole component and the entirety of that sentence should be included in the calculation

of his parole eligibility date.

¶18    The district court accepted Diehl’s argument and further relied on section

18-1.3-401(1)(a)(VI), which provides that an inmate “shall not be deemed to have fully

discharged his or her sentence until said person has either completed or been discharged by

the state board of parole from the mandatory period of parole imposed pursuant to

[section 18-1.3-401(1)(a)(V)].” (Emphasis added.)



                                              9
¶19    The DOC argues that section 18-1.3-401(1)(a)(V)(D) and our decision in Luther,

58 P.3d 1013, compel a different answer. Section 18-1.3-401(1)(a)(V)(D) provides that if

the parole board grants an inmate early release from prison “the offender shall be deemed

to have discharged the offender’s sentence to imprisonment . . . in the same manner as if

such sentence were discharged pursuant to law . . . .” The DOC interprets this provision

to mean that, on release to mandatory parole, the imprisonment component of a sentence

is extinguished and is therefore no longer part of any continuous sentence.

¶20    The DOC points out that its interpretation is supported by our decision in Luther,

in which we stated that a prison sentence was “no longer operable in any sense” after an

inmate was released to serve mandatory parole. 58 P.3d at 1016. In Luther, the inmate,

like Diehl, was serving a mandatory period of parole when he committed the crime of

escape. Id. at 1014. He was reincarcerated, and the district court imposed a sentence of

three years imprisonment plus a three-year period of mandatory parole for his new

conviction, to begin after the completion of the revoked parole incarceration period. Id. at

1015. Luther argued that this sentence violated the prohibition on imposing two periods

of mandatory parole. Id. at 1014; see § 18-1.3-401(1)(a)(V)(E) (“If an offender is sentenced

consecutively for the commission of two or more felony offenses . . . the mandatory period

of parole for such offender shall be the mandatory period of parole established for the

highest class felony of which such offender has been convicted.”). As Luther saw it, he

was already serving the mandatory parole portion of his original sentence and the court

was now sentencing him to a new period of imprisonment with a second term of

mandatory parole.

                                            10
¶21    In rejecting Luther’s argument, we considered whether “the General Assembly

intended that the period of reincarceration be classified as ‘mandatory parole’” and

concluded that it did not, and instead that “reincarceration for violation of parole is not

itself ‘parole’ . . . .” Luther, 58 P.3d at 1016–17. Because Luther could no longer be

considered as serving a period of “mandatory parole” in connection with the original

sentence, his consecutive sentences did not violate the prohibition against multiple

mandatory parole periods. Id. Having reached that conclusion, we explained that

“Luther’s parole revocation reincarceration period and his new sentence for attempted

escape are one continuous sentence, with one period of mandatory parole following.” Id.

at 1017.

¶22    Similarly, here, the DOC argues, when Diehl was reincarcerated for violating his

parole, he was no longer serving a period of mandatory parole on the earlier sentences.

Instead, his parole revocation reincarceration period is a separate and independent time

period that must be incorporated with his newly imposed sentences into the “one

continuous sentence” required by section 17-22.5-101.

¶23    The parties’ disagreement reflects the reality that the relevant statutes are less than

entirely clear.   In some instances, the word “sentence” is used to mean both the

combination of time in prison and time on mandatory parole. See Edwards v. People, 196

P.3d 1138, 1139 (Colo. 2008) (holding that “sentence” in the presentence confinement

credit statute means both the incarceration portion and the parole portion of an offender’s

sentence); Norton, 63 P.3d at 343 (holding that the sentence, or penalty, imposed on felony

offenders consists of “both an incarceration component and a parole component”). But

                                             11
elsewhere the word “sentence” is used to mean only time in prison. See Martin v. People,

27 P.3d 846, 856 (Colo. 2001) (construing “maximum sentence imposed” in the parole

board statute “as the sentence of incarceration ordered by the trial court”); People v.

Johnson, 13 P.3d 309, 314 (Colo. 2000) (concluding that “sentence” in community

corrections sentencing statute “refers to the period of confinement, imprisonment, or

term of custody over which a court may exercise discretion when imposing a sentence,

exclusive of any reference to mandatory parole”); Craig v. People, 986 P.2d 951, 963 (Colo.

1999) (“[M]andatory parole is imposed in addition to the imprisonment component of a

sentence.”). Similarly, section 18-1.3-401 refers to the “discharge” of the prison sentence

on release to parole and also to the “full[] discharge” of the sentence only after parole has

been served.

¶24    Given this lack of absolute statutory clarity, we will defer to the DOC’s

interpretation unless it is unreasonable. We have emphasized that “in light of the

practicalities inherent in administering the complex of sentencing and parole mandates

imposed by statute, the department’s administrative interpretations are entitled to great

weight.” Fetzer, ¶ 20, 396 P.3d at 1113. Here, we conclude that the DOC’s approach to

calculating parole eligibility when an inmate is reincarcerated for a parole violation and

sentenced on additional convictions for conduct that occurred while he was on parole is

entirely reasonable. Indeed, in light of our decision in Luther, it is the better reading.

¶25    In Luther, we treated the parole revocation reincarceration period and the newly

imposed sentence as two parts of one continuous sentence. The General Assembly

amended the penalties statute the year after Luther was decided but did nothing to

                                             12
disavow that decision’s interpretation of the one-continuous-sentence rule.         That is

notable because, when a legislative body amends a statute, it is presumed that the

legislature is aware of, and approves of, case law interpreting that statute.           See

Semendinger v. Brittain, 770 P.2d 1270, 1272 (Colo. 1989). Because the General Assembly

did not amend the penalties statute in a way that would override our holding in Luther,

we presume that the General Assembly approves of that holding. The DOC was therefore

reasonable in adopting the approach it did to calculate Diehl’s new parole eligibility date.

                                    III. Conclusion

¶26    The DOC’s interpretation of sections 17-22.5-101 and 18-1.3-401 is reasonable. The

new parole eligibility date for an inmate who was reincarcerated for a parole violation

and is sentenced for additional offenses should be calculated using the beginning of the

period of mandatory parole as the start of the inmate’s one continuous sentence.

Accordingly, we reverse the judgment of the district court.




                                            13
