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                                                  ADVANCE SHEET HEADNOTE
                                                             January 13, 2020

                                     2020 CO 1

No. 19SA44, Graham v. Executive Director of Colorado Department of
Corrections—Habeas Corpus—Parole Revocation—Statutory Interpretation.

      In this habeas corpus appeal, the supreme court considers whether

subsection (11)(b) of the parole revocation statute, section 17-2-103, C.R.S. (2019),

as it existed between August 9, 2017, and August 7, 2018, authorizes a parolee’s

confinement for the remainder of his parole period. The court concludes that it

does not. Rather, under subsection (11)(b), the parole board is only authorized to

order a parolee confined for up to ninety days. Because the parolee in this case

has been confined well beyond the ninety days authorized, the court holds that

the district court erred in denying his habeas petition.       Therefore, the court

reverses the district court’s order and remands the case to the district court with

directions to grant the writ of habeas corpus, make the writ permanent, and order

that the parolee be immediately released to parole.
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                     2020 CO 1

                       Supreme Court Case No. 19SA44
                          Appeal from the District Court
                  Logan County District Court Case No. 18CV32
                      Honorable Charles M. Hobbs, Judge

                                Plaintiff-Appellant:

                                  Jimmie Graham,

                                         v.

                              Defendants-Appellees:

   Executive Director of Colorado Department of Corrections; and Warden of
                          Sterling Correctional Facility.

                                Judgment Reversed
                                      en banc
                                  January 13, 2020


Jimmie Graham, pro se
     Sterling, Colorado

Attorneys for Defendants-Appellees:
Philip J. Weiser, Attorney General
Chris W. Alber, Senior Assistant Attorney General
       Denver, Colorado




PER CURIAM.
¶1    In this habeas corpus appeal, we consider the parole board’s order confining

Jimmie Graham for more than ninety days as a result of his parole violations. We

conclude that the parole board exceeded its statutory authority and that the district

court subsequently erred in denying Graham’s habeas petition. We thus reverse

the district court’s order. Because Graham has been confined well beyond the

ninety days authorized by the version of the parole revocation statute in effect at

the time of Graham’s parole revocation, we remand to the district court with

directions to grant the writ of habeas corpus, make the writ permanent, and order

the Executive Director of the Colorado Department of Corrections and the Warden

of Sterling Correctional Facility (collectively, “DOC”) to immediately release

Graham to parole.

                        I. Facts and Procedural History
¶2    In February 2018, Graham’s parole officer filed a complaint alleging that

Graham had violated three conditions of his parole: changing his residence

without permission; failing to report to the parole office as directed; and

committing a new felony—escape. The allegation related to the commission of a

new felony was dismissed after the escape case was dismissed. Graham then pled

not guilty to the two remaining allegations. Following a hearing, the parole board

found that Graham had violated his parole as alleged in the two outstanding

counts of the complaint. In June 2018, the board revoked Graham’s parole and


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ordered him confined to the DOC for the remainder of his parole period. In so

doing, the board noted that Graham had been on parole nine times, had absconded

from parole seven times, and had been revoked from parole eight times. This poor

parole history, concluded the board, justified its decision. Graham appealed, but

his appeal was denied.

¶3    Graham then filed a petition for habeas corpus in the district court, alleging

that the applicable version of the parole revocation statute, section 17-2-103(11)(b),

C.R.S. (2017), did not permit the parole board to order him confined for the

remainder of his parole period.1 According to Graham, his case fell within the

ambit of subparagraph (III.5), which authorizes confinement for a maximum of

ninety days following revocation of parole. § 17-2-103(11)(b)(III.5). The district

court denied Graham’s petition and concluded that the parole board had acted

within its discretion.




1The revocation of Graham’s parole proceeded under section 17-2-103(11)(b), as it
existed between August 9, 2017, and August 7, 2018. See Ch. 394, sec. 2, § 17-2-103,
2017 Colo. Sess. Laws 2026, 2027–29. Because that is the version of the parole
revocation statute that governs Graham’s appeal, it is the one we cite to and
discuss throughout this opinion. We note that section 17-2-103(11)(b) has changed
significantly; subparagraph (II) has been substantially amended, and
subparagraph (III.5) has been repealed entirely.

                                          3
¶4    Graham timely appealed to this court. See Colo. Const. art. VI, § 2 (outlining

the appellate jurisdiction of the supreme court); see also § 13-4-102(1)(e), C.R.S.

(2019) (excluding habeas corpus appeals from the jurisdiction of the court of

appeals). We now reverse.

                                    II. Analysis

¶5    We agree with Graham that the parole board exceeded its statutory

authority in ordering him confined for the remainder of his parole period. See

Martin v. People, 27 P.3d 846, 858 (Colo. 2001) (noting that under section

17-2-103(11)(b), the parole board is authorized to return a parolee to confinement

as a penalty for violating parole but that the period of confinement is limited by

statute). Subsection (11) of section 17-2-103 sets out the board’s authority to

address parole violations. Paragraph (a) provides that when the board finds a

violation, it may revoke parole (as provided in paragraph (b)), continue parole, or

modify parole. § 17-2-103(11)(a). When, as here, the board decides to revoke

parole, paragraph (b) restricts the duration of confinement it may order:

      (I) If the board determines that the parolee has violated parole
      through commission of a crime, the board may revoke parole and
      order the parolee confined for up to the remainder of the parole
      period.

      (II) If the board determines that the parolee violated any condition of
      parole that does not involve the commission of a crime, and the
      provisions of subsection (11)(b)(III) or (11)(b)(III.5) of this section are
      not applicable, the board may revoke parole and order the parolee
      confined for up to the remainder of the parole period.

                                          4
      (III) If the board determines that the parolee has violated any
      condition of parole that does not involve the commission of a crime,
      the parolee has no active felony warrant, felony detainer, or pending
      felony criminal charge, and the parolee was on parole for an offense
      that was a level 3 or level 4 drug felony or class 4, class 5, or class 6
      nonviolent felony as defined in section 17-22.5-405(5)(b), except for
      menacing as defined in section 18-3-206, or any unlawful sexual
      behavior contained in section 16-22-102(9), or unless the parolee was
      subject to statutes related to wrongs to at-risk adults, or domestic
      violence sentencing, the board may revoke parole and order the
      parolee confined for a period not to exceed thirty days.

      (III.5) If the board determines that the parolee has violated any
      condition of parole that does not involve the commission of a crime,
      the parolee has no active felony warrant, felony detainer, or pending
      felony criminal charge, and the parolee was on parole for an offense
      that was a level 2 drug felony or a class 3 nonviolent felony as defined
      in section 17-22.5-405(5)(b), except for stalking as described in section
      18-9-111(4), as it existed prior to August 11, 2010, or section 18-3-602,
      or any unlawful sexual behavior described in section 16-22-102(9), or
      unless the parolee was subject to statutes related to wrongs to at-risk
      adults, or domestic violence sentencing, the board may revoke parole
      and order the parolee confined for up to ninety days.

      ...

      (VI) If the board determines that a parolee who has been designated
      as a sexually violent predator has violated any condition of parole,
      the board may revoke parole and order the parolee confined for up to
      the remainder of the parole period.

§ 17-2-103(11)(b).

¶6    In his habeas petition, Graham argued that he qualified for the ninety-day

maximum in subparagraph (III.5) because: (1) he did not violate parole by

committing a new offense; (2) the offense for which he was on parole, a class 3




                                         5
felony escape, was a “nonviolent felony offense”; and (3) he otherwise met the

subparagraph’s requirements.

¶7    The DOC did not dispute Graham’s contention. Instead, it claimed that

Graham had failed to recharge his GPS monitoring device. The DOC thus relied

on section 17-2-103(11)(f)(II). Under that provision, if the board determines that a

parolee has violated the conditions of his parole by removing or tampering with

an electronic monitoring device, it may revoke the parolee’s parole pursuant to

paragraph (b) of subsection (11).

¶8    The record is not clear as to whether the parole board determined that

Graham had in fact removed or tampered with his electronic monitoring device.

But this is not an impediment to our resolution of Graham’s appeal because the

DOC’s subsection (11)(f)(II) contention is immaterial. Although that subsection

authorizes the parole board to revoke a parolee’s parole for removing or

tampering with an electronic monitoring device, it does not set forth a different

penalty for such conduct; instead, it simply refers to all the penalty options listed

in the subparagraphs contained in subsection (11)(b). Therefore, even if Graham

removed or tampered with his electronic monitoring device, his habeas petition

still hinged on whether his case fell within the purview of subparagraph (III.5).

Because it is uncontested that his case did, meaning that the parole board had no




                                         6
authority to confine him for more than ninety days, the parole board exceeded its

statutory authority by ordering him confined for the rest of his parole period.

¶9    That Graham may have had a particularly poor record on parole should

have been of no consequence to the board’s decision. The DOC cited no authority

to the district court, and we are aware of none, that permitted the parole board to

revoke Graham’s parole and order him confined for the remainder of his parole

period simply because he had a poor record on parole. The parole board certainly

lacked authority to override the legislative determinations in section

17-2-103(11)(b). See Thiret v. Kautzky, 792 P.2d 801, 808 (Colo. 1990) (reversing the

district court’s denial of a habeas corpus petition noting that neither the DOC nor

the parole board “has discretion to override the legislative determination

mandating parole” and remanding the case with directions that the writ be

granted). As we observed in Stilley v. Tinsley, 385 P.2d 677 (Colo. 1963), while a

parole violator’s “record may be unsavory and his conduct not such as to appeal

favorably to the conscience of the court,” he is nevertheless “entitled to be dealt

with in conformity with constitutional and statutory guarantees.” Id. at 680.

Graham’s parole record, as poor as it is, cannot deprive him of his constitutional

and statutory rights.




                                         7
                                 III. Conclusion

¶10   We reverse the district court’s order denying Graham’s habeas petition.

Because Graham has been confined well beyond the ninety days authorized by the

applicable version of the parole revocation statute, we remand to the district court

with directions to grant the writ of habeas corpus, make the writ permanent, and

order the DOC to immediately release Graham to parole.




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