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One-Continuous-Sentence Rule Governs Colorado Parole Eligibility Dates

One-Continuous-Sentence Rule Governs Colorado Parole Eligibility Dates

by Mark Wilson

The Colorado Supreme Court held last year that state prison officials had misapplied the law and miscalculated a prisoner’s parole eligibility date (PED) for his consecutive sentence.

Colorado law requires the Department of Corrections (DOC) to treat a prisoner’s consecutive sentences “as one continuous sentence.” See: Section 17-22.5-101. This is true even when the sentences are for unrelated crimes and imposed at different times. Under Section 17-22.5-403(1), a prisoner is eligible for parole after serving 50 percent of the sentence.

On May 13, 2003, Jeffrey T. Nowak began serving an eight-year prison term. Under Section 17-22.5-403(1), the DOC calculated his PED as July 3, 2006 (i.e., 50 percent of his eight-year sentence).

After reaching his PED, Nowak absconded while on temporary leave. He was subsequently convicted of escape and sentenced to twelve years in prison, consecutive to his original sentence. He began serving his new sentence on July 13, 2007.

Since Nowak had already reached his PED on the initial sentence before committing the new crime of escape, the DOC “ignored” his 2003 conviction and established a PED in 2012, calculated from the date his second sentence started.

“DOC acknowledged that if it applied the one-continuous-sentence rule and treated Nowak’s eight-year sentence from 2003 and his twelve-year sentence from 2007 as one continuous twenty-year sentence, with an effective date of May 13, 2003, his PED would be approximately one year earlier, in March or April 2011,” the Colorado Supreme Court wrote. The DOC refused to apply the one-continuous-sentence rule, however, because Nowak would serve less than 50 percent of his escape sentence before reaching his new PED if it did so. The DOC contended this would constitute a “windfall.”

The Supreme Court interpreted Sections 17-22.5-101 and 17-22.5-403(1) and held, based on the “plain and ordinary meaning” of the statutory language, “that, for the purpose of computing an inmate’s PED, section 17-22.5-101 requires DOC to construe all sentences as one continuous sentence when the inmate has been committed under several convictions with separate sentences, even when doing so results in the inmate becoming parole eligible before serving at least 50% of the second sentence.” Therefore, the Court instructed the DOC “to recalculate Nowak’s PED based upon one continuous twenty-year sentence beginning May 13, 2003.”

However, Nowak was denied parole and remained incarcerated as of November 2015, which illustrates the fact that a PED is only the date a prisoner is eligible for parole, with no guarantee they will actually make parole. As noted by the Colorado Supreme Court, “the parole board has the ultimate discretion to grant or deny parole based on the totality of the circumstances.... If the parole board shares DOC’s concern that this construction of section 17-22.5-101 somehow creates a “windfall” for certain inmates or otherwise determines that parole is not appropriate – or if the circumstances are such that an inmate somehow becomes parole eligible before serving 50% of the continuous sentence – it can exercise its discretion to deny parole.” See: Nowak v. Suthers, 2014 CO 14, 320 P.3d 340 (Colo. 2014).


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Related legal case

Nowak v. Suthers