SUPREME-COURT-10262021-KS-350

Left to right: Colorado Supreme Court Justices Carlos A. Samour Jr., Richard L. Gabriel and Monica M. Márquez hear two cases at Pomona High School before an audience of students on Oct. 26, 2021, in Arvada.

Colorado Supreme Court justices agreed with both the state Department of Corrections and inmate Nathanael E. Owens on Tuesday that the government should calculate Owens' earliest parole date using a "hybrid" method accounting for the varying eligibility protocols in his three consecutive sentences.

The justices cleared up in Owens' appeal any lingering confusion from a previous ruling that led the department to believe the hybrid method was not an acceptable means of arriving at parole eligibility dates. At the same time, the court clarified the Department of Corrections did not simply have the ability to apply the hybrid method to Owens, but it was legally obligated to.

In arriving at its conclusion, the court declined the government's request to dismiss the case as moot, because the department had already given Owens the parole date he wanted.

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"Were we to dismiss Owens’ appeal as moot, the DOC would be free to change its mind yet again and recalculate Owens’ parole eligibility date without using the hybrid system," wrote Justice Carlos A. Samour Jr. in explaining the court's decision to rule on the merits of Owens' appeal.

Owens is serving 24 years in prison for two aggravated robbery offenses and one conviction for vehicular eluding. Under state law, he is eligible for parole after he serves 75% of his robbery sentences and 50% of his vehicular eluding sentence. Under the hybrid method, which the Corrections Department historically used, Owens is eligible for parole after 17 years (the product of 75% of his two 10-year sentences and 50% of his four-year sentence).

But in 2017, the Supreme Court handed down its decision in Executive Director of the Colorado Department of Corrections v. Fetzer. The Department of Corrections interpreted the ruling to require the use of a "single percentage model" for calculating parole eligibility. The department applied the 75% multiplier to Owens' entire 24-year sentence, arriving at a parole eligibility date of 18 years.

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Owens challenged the recalculation, but a three-judge panel of the state's Court of Appeals believed the department had acted reasonably within its discretion to treat Owens' convictions as having one continuous sentence, as the law requires.

Judge Michael H. Berger wrote separately to say the department could still conceivably use the hybrid method even post-Fetzer. The government, apparently convinced by his opinion, reverted to the hybrid model calculation for Owens' sentence.

"Now that it has had the endorsement of a Court of Appeals judge, that the hybrid method is already acceptable, it’s returned to the status quo," First Assistant Attorney General Nicole Gellar told the justices. "Mr. Owens can be secure in the use of the hybrid method."

Samour, in the Supreme Court's opinion, noted the Court of Appeals apparently felt "handcuffed" by the Fetzer decision. Although Fetzer recognized the Department of Corrections has discretion when calculating parole eligibility, he clarified Fetzer did not enable the department to ignore the distinct percentages associated with each piece of Owens' sentence. Applying two different multipliers would still comply with the command to treat Owens' sentences as a continuous amount when added together.

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"It follows that, notwithstanding the DOC’s wide discretion, the (appellate panel) mistakenly approved the calculation of Owens’ parole eligibility date based solely on the 75% rule," Samour wrote.

The Office of the Alternate Defense Counsel, which defends indigent clients when the public defender's office has a conflict, had also weighed in to the court on Owens' appeal. In a written brief, the office identified 69 instances of inmates receiving later parole eligibility dates due to the corrections department's recalculations post-Fetzer. The postponements, according to the office, amounted to more than 200 years of additional incarceration and $7.6 million in added costs.

The Supreme Court upheld Owens' current 17-year parole eligibility date.

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