COLORADO SUPREME COURT

2 East 14th Avenue

Denver, CO 80203
On Appeal from Honorable Judge David M.
Thorson, District Court Fremont County
Case No. 2012CV22
RANDAL ANKENEY,

Petitioner-Appellee,

v.

RICK RAEMISCH, EXECUTIVE
DIRECTOR OF COLORADO
DEPARTMENT OF CORRECTIONS; LOU
ARCHULETTA, WARDEN OF THE
FREMONT CORRECTIONAL FACILITY,

Respondents-Appellants.
COURT USE ONLY
Supreme Court Case No:
2013SA336
JOHN W. SUTHERS, Attorney General
JAMES W. QUINN, First Assistant
Attorney General, *
Ralph L. Carr Colorado Judicial Center
1300 Broadway, Floor
Denver, CO 80203
Telephone: (720) 508-6610
Facsimile: (720) 508-6032
E-Mail: james.quinn@state.co.us
Registration Number: 46394
*Counsel of Record
OPENING BRIEF


DATE FILED: May 27, 2014 5:00 PM
FILING ID: 3E508D814C331
CASE NUMBER: 2013SA336
TABLE OF CONTENTS

PAGE
i
STATEMENT OF THE ISSUES ............................................................... 1
STATEMENT OF THE CASE .................................................................. 2
I. Nature of the Case ........................................................................... 2
II. Course of proceedings and disposition of the case below ................ 3
STATEMENT OF THE FACTS ................................................................ 5
SUMMARY OF ARGUMENT ................................................................... 6
ARGUMENT ............................................................................................. 7
I. The Court of Appeals erroneously concluded that good time
should be credited toward an inmates mandatory release
date ................................................................................................... 7
A. Standard of review ......................................................................... 7
B. Overview ......................................................................................... 7
C. Changes in Colorados statutory parole schemes over time ....... 10
D. Earned time credit is applied to an inmates mandatory
release date, but good time credit is not ...................................... 21
E. The error in the Ankeney decision ............................................... 24
II. The district court erred in concluding that it had jurisdiction
to discharge Ankeneys three year mandatory parole after
two months when the Parole Board was not a party to the
proceedings. .................................................................................... 32
A. Standard of review. ...................................................................... 32
B. The district court lacked personal jurisdiction over the
Parole Board to order the discharge Ankeneys three year
mandatory parole after Ankeney had only served two
months of mandatory parole ........................................................ 32
CONCLUSION ........................................................................................ 34
TABLE OF AUTHORITIES

PAGE
ii
CASES
Academy of Charter Schools v. Adams County School Dist. No. 12,
32 P.3d 456 (Colo. 2001) ....................................................................... 22
Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug.
22, 2013)(unpublished) ................................................................. passim
Badger v. Suthers, 985 P.2d 1042 (Colo. 1999) ................................ 15, 27
Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989) ................................. 16, 17
Cardiel v. Brittian, 833 P.2d 748 (Colo. 1992) ........................................ 33
Colo. Dept. of Corrs., Parole Div. ex rel. Miller v. Madison, 85
P.3d 542 (Colo. 2004) .............................................................................. 7
Craig v. People, 986 P.2d 951 (Colo. 1999) ............................................. 15
Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo. Mar. 3,
2011) ..................................................................................................... 20
Hughes v. Jones, 3 P.2d 1074 (1931) ...................................................... 32
In re Marriage of Malwitz, 99 P.3d 56 (Colo. 2004) ............................... 32
Jones v. Martinez, 799 P.2d 385 (Colo. 1990) ......................................... 16
Klein v. Coblentz, No. 96-1289 WL 767538, at *4; 1997 U.S. App.
LEXIS ................................................................................................... 20
Linker v. Linker, 470 P.2d 882 (1970) .................................................... 32
Lusero v. Welt, 223 Fed. Appx 780 (10th Cir. 2007) ........................ 19, 20
Meyers v. Price, 842 P.2d 229 (Colo. 1992) ....................... 8, 16, 21, 22, 24
Nowak v. Suthers et al., 320 P.3d 340 (Colo. 2014) ................................ 18
People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998), cert. granted,
judgment affirmed without opinion (Colo. 2000) ................................. 33
People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992) ........................... 17
People v. Luther, 58 P.3d 1013 (Colo. 2002) ................... 23, 24, 28, 29, 33
TABLE OF AUTHORITIES

PAGE
iii
People v. McCreadie, 938 P.2d 528 n.6 (Colo. 1997) ................................ 8
People v. McCullough, 6 P.3d 774 (Colo. 2000) ...................................... 21
People v. Norton, 63 P.3d 339 (Colo. 2003) ........................... 13, 14, 27, 29
People v. Watson, 892 P.2d 388 (Colo. App. 1994), cert. denied
(Colo. 1995) ........................................................................................... 16
Rather v. Suthers, 973 P.2d 1264 (Colo. 1999), cert denied, 528
U.S. 834 (1999) ....................................................................................... 8
Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989) ......................... 16, 17, 30
Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990) ................................. passim
Thorson v. Colorado Dept. of Corrs., 801 P.2d 540 (Colo. 1990) ........... 16
Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App. 1999) ................ 32
Verrier v. Colo. Dept of Corrs., 77 P.3d 875 (Colo. App. 2003) ................ 8
Wiedemer v. People, 784 P.2d 739 (Colo. 1989) ...................................... 16
STATUTES
13-17.5-103(1), C.R.S. (2012) .......................................................... 15, 26
16-11-310, C.R.S. (repealed 1988) .................................................. 15, 27
17-22.5-301(2), C.R.S. (2013) .......................................................... 16, 30
17-22.5-301(3), C.R.S. (2013) .................................................... 16, 17, 30
17-22.5-402, C.R.S. (2013) .................................................................... 17
17-22.5-402(2), C.R.S. (2013) ................................................................ 17
17-22.5-402(1), C.R.S. (2013) ................................................................ 17
17-22.5-403, C.R.S. (2013) .................................................................... 19
17-22.5-403(1), C.R.S. (2013) .................................................................. 9
17-22.5-403(3), C.R.S. (2013) ................................................................ 17
17-22.5-403(3.5), C.R.S. (2013) ............................................................. 17
TABLE OF AUTHORITIES

PAGE
iv
17-22.5-404(4), C.R.S. (2013) .......................................................... 18, 19
17-22.5-404(7)(a), C.R.S. (2013) ........................................................... 19
17-22.5-405, C.R.S. (2013) .................................................... 9, 22, 23, 24
17-22.5-405(5), C.R.S. (2013) ................................................................ 22
17-22.5-405(6), C.R.S. (2009) ................................................................ 23
18-1-105(1)(a)(V), 6 C.R.S. (1998) .................................................. 15, 27
Session Laws: 1988 Colo. Sess. Law, p. 715 (repealed 1988). ................ 17

RULES
C.A.R. 43(c) ................................................................................................ 1

PRIOR RELATED APPEAL
Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug. 22,
2013)(unpublished)

Respondents-Appellants Rick Raemisch and Lou Archuletta,
1

through the Colorado Attorney General, respectfully submit the
following Opening Brief.
STATEMENT OF THE ISSUES
This is a direct appeal of a habeas corpus proceeding. The case
was originally filed as an action seeking habeas corpus and mandamus
relief. The district court dismissed the claim based upon Respondents
Motion to Dismiss or in the Alternative Motion for Summary Judgment.
Petitioner Ankeney sought review by the court of appeals. The court of
appeals erroneously reversed and remanded after analyzing the
mandamus claim. Noting that it lacked jurisdiction with respect to the
habeas claim, the court of appeals instructed the district court on
remand to reconsider Ankeneys habeas claim. Acting upon the court of
appeals direction, the district court, in contravention of statute and

1
Tom Clements, the former Executive Director of the Colorado
Department of Correction was murdered on March 19, 2013. In
addition, Rae Timme retired from the Colorado Department of
Corrections. Pursuant to C.A.R. 43(c) Rick Raemisch, Clementss
successor, and Lou Archletta, Timmes successor, are automatically
substituted as the Respondents-Appellees.
2

prior Supreme Court decisions, applied good time credits to Ankeneys
sentence discharge date as opposed to his parole eligibility date. The
district court granted Ankeney habeas relief, discharging both his
sentence and his mandatory parole. The issues on appeal are:
1. Whether the court of appeals and district court erred
in concluding that good time credits apply to an inmates
discharge date thus releasing an inmate after service of
half of the imposed sentence and eliminating discretionary
parole.

2. Whether the district court erred in concluding that it
had jurisdiction to discharge Ankeneys three year
mandatory parole after two months when the Parole Board
was not a party to the proceedings.
STATEMENT OF THE CASE
I. Nature of the Case
At the time this case was initially filed, Petitioner-Appellee
Ankeney was incarcerated at the Fremont Correctional Facility.
Ankeney filed a Petition for Writ of Habeas Corpus and Complaint
Pursuant to C.R.C.P. 106 seeking release from incarceration. In his
Petition/Complaint, Ankeney asserted that the Colorado Department of
Corrections miscalculated his mandatory release date, which he
calculated to have been November 19, 2011. Ankeney asked the district
3

court to order Respondents-Appellants to calculate his mandatory
release date - specifically, to compel the award of all earned time and
good time, statutorily mandated or otherwise earned or awarded so
that he could begin serving his mandatory parole period associated with
his sentence. See Petition for Writ of Habeas Corpus and Complaint
pursuant to C.R.C.P. 106, CD pp. 1-10.
2

II. Course of proceedings and disposition of the case
below
Respondents filed a Motion to Dismiss, or in the Alternative
Motion for Summary Judgment. See Motion to Dismiss, CD at pp. 66-
76. After Ankeney responded to the motion, the district court issued an
order denying Ankeneys request for habeas relief, concluding that he
failed to plead facts stating a prima facie case for habeas corpus relief.
See Order at pp. 97-99. Later, the district court dismissed Ankeneys
mandamus claim, based on his inability to pay the required filing fee,
which, the court found, was not waivable under section 13-17.5-103(1),
C.R.S. 2012. The district court further concluded that Ankeney failed to

2
Citations to the electronic record are to the specific document and page
number on the CD that was furnished by the Clerk of the Supreme
Court.
4

state a claim upon which mandamus relief could be granted because
Ankeney did not have a clear right to the deduction of good time in
calculating his mandatory release date. See Order, CD at pp. 126-129.
Ankeney sought review by the court of appeals. The court of appeals
reversed and remanded after analyzing the mandamus claim. Noting
that it lacked jurisdiction with respect to the habeas claim, the court of
appeals specifically instructed the district court on remand to
reconsider the habeas claim. See Ankeney v. Raemisch, et al., Colo. Ct.
of App. No. 12CA1930, Aug. 22, 2013, CD at pp. 194-203.
Shortly after the court of appeals decision, on August 28, 2013,
Ankeney was granted discretionary parole. He agreed to the parole
conditions, signed his Parole Agreement, and began serving his three
year period of mandatory parole on August 28, 2013. See Parole Order,
CD at p. 223. Later on October 11, 2013, counsel for Ankeney filed a
Forthwith Motion for Hearing, requesting that the district court
schedule a hearing regarding Ankeneys habeas corpus petition. See
Forthwith Motion, CD at pp. 209-210. On November 14, 2013, the
district court held a hearing. Acting upon the directives of the court
5

appeals, the district court granted habeas relief ordering that Ankeney
had served both the incarceration and mandatory parole periods of his
sentence and ordered his release and discharge from mandatory parole
supervision. Order Granting Habeas Corpus Relief, CD at pp. 249-251.
This direct appeal of the district courts ruling granting habeas relief
followed.
STATEMENT OF THE FACTS
In January 2008, Ankeney, a former attorney, was delivered to the
diagnostic unit of the CDOC, to serve the following sentence imposed by
the district court in Larimer County in criminal case number
06CR1548: eight years for child abuse negligently cause serious bodily
injury, a class four felony. The CDOC received additional mittimuses
for Ankeney for the following sentences imposed by the district court in
Arapahoe County in criminal case number 06CR125: two years jail, for
third degree sexual assault, a class one misdemeanor; three years for
stalking emotional distress, a class five felony. Id. at 5. The two-
year jail sentence and three-year CDOC sentence were to run
concurrent to each other and to the eight-year sentence imposed in
6

connection with 06CR1548. Id. Additionally, Ankeney was sentenced
to 24 months of mandatory parole for the class 5 stalking felony. Id.
Ankeneys discretionary parole eligibility date was calculated to
occur November 9, 2010, and his mandatory release date was April 19,
2014. Ankeney was considered for early discretionary parole by the
Colorado Board of Parole in hearings held August 30, 2010; August 29,
2011; August 6, 2012; and September 21, 2012. On each occasion the
Parole Boards decision was to defer and reconsider in one year. On
August 5, 2013, the Parole Board ordered Ankeneys parole to begin on
his mandatory parole date of August 28, 2013. Upon release to parole,
Ankeney began serving a three year period of mandatory parole as
required by statute on his class 4 felony conviction, and as ordered by
the sentencing court in Larimer case 06CR1548.
SUMMARY OF ARGUMENT
The unpublished decision of the Colorado Court of Appeals in
Ankeney v. Raemisch et al., Case No. 12CA1930, Colorado Court of
Appeals (Aug. 22, 2013) (unpublished) is in error. The court of appeals
in Ankeney was mistaken in its analysis of the applicable statutes and
7

case law regarding the application of good time and earned time credits
toward an inmates mandatory release date. In addition, after remand,
the district court improperly discharged Ankeneys three year
mandatory parole period without jurisdiction over the Colorado Parole
Board.
ARGUMENT
I. The Court of Appeals erroneously concluded that
good time should be credited toward an inmates
mandatory release date.

A. Standard of review.

When the facts are not in dispute and a district court resolves a
habeas petition based solely upon the district courts interpretation of
the relevant statutes and case law, the district courts decision is
subject to de novo review. See Colo. Dept. of Corrs., Parole Div. ex rel.
Miller v. Madison, 85 P.3d 542, 544 (Colo. 2004).
B. Overview.
The Court of Appeals construction of Colorado law regarding the
proper application of time credit is flawed. In Colorado, there are two
8

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), cert denied, 528 U.S. 834
(1999); People v. McCreadie, 938 P.2d 528, 531 n.6 (Colo. 1997).
3

It is undisputed that Ankeney committed his crimes after 1993.
See Mittimuses, CD at pp. 58-65. During his incarceration, according to
Ankeney, he was awarded good time credit, which was applied to
determine his parole eligibility date, the date that he first became
eligible to be considered by the Parole Board for release to parole, at the
Parole Boards discretion. However, good time credit was not applied
toward the calculation of his mandatory release date, the date that the
incarceration portion of his sentence concluded and on which he was to

3
Although Colorado statutes make an inmate eligible for good time and
earned time credit, they do not confer any entitlement to earned time
credits. Meyers v. Price, 842 P.2d 229, 231 (Colo. 1992) (acknowledging
the CDOCs discretionary authority to award good time and earned time
credits). This has been the law in Colorado even after the 1993
amendment to the relevant parole statutes. Verrier v. Colo. Dept of
Corrs., 77 P.3d 875, 878 (Colo. App. 2003).
9

be released to serve the mandatory parole period applicable to his
sentence.
4

This was appropriate pursuant 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). On its face, 17-
22.5-403(1) applies to an inmates eligibility date for discretionary
parole, not an inmates mandatory release date.
The court of appeals erroneously concluded that Ankeney was
entitled to have the good time credit that he had accrued applied his
mandatory release date. As delineated below, the reasoning of that
decision is flawed. Ankeney was not entitled to have good time credit
applied to his mandatory release date, and he was not entitled to
immediate release.

4
As noted above, Ankeney was released on discretionary parole prior to
the expiration of the incarceration portion of his sentence.
10

C. Changes in Colorados statutory parole
schemes over time.

To understand the manner in which good time credit is applied
toward the calculation of the date upon which a prisoner becomes
eligible for release to parole at the discretion of the Parole Board, in
contrast to the date than a prisoner has a right to release from
incarceration independent of the decision of the Parole Board, it is
helpful to review the significant changes in the statutory parole scheme
since the 1970s. See Thiret v. Kautzky, 792 P.2d 801, 804-805 (Colo.
1990). 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. Three of these major shifts were explained and discussed
by the Colorado Supreme Court in Thiret v. Kautzky. Id.
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
11

date on which the inmate became eligible to be considered for release to
parole, at the discretion of the Parole Board. Id. Then, 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, when
taken as a whole, 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. Then, in 1985, the General Assembly again enacted
legislation affecting parole. Pursuant to this legislation, the General
Assembly 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
which they become eligible for release to parole, at the Parole Boards
discretion. Id.
12

After explaining the statutory shifts regarding the handling of
parole, this Court in Thiret identified the following categories and the
application of good time credits as follows:
Thus, in Colorado, with respect to the statutory
scheme governing parole, we have three general
classes of persons now serving sentences in our
prisons:
1. Those serving sentences for crimes committed
prior to July 1, 1979.
2. Those serving sentences for crimes committed
on or after July 1, 1979 but before July 1, 1985.
3. Those serving sentences for crimes committed
on or after July 1, 1985.
Upon accruing sufficient credits to become
eligible for parole, persons fitting under the
first and third categories may be granted or
denied parole at the discretion of the Parole
Board. Good time and earned time credits
earned by an inmate towards his release, for
persons coming under these categories,
merely establish the date of parole
eligibility. A person fitting under the second
category, however, must be paroled upon
reaching the parole date as determined by
deducting vested good time and earned time
credits from the persons sentence.
Id. at 805 (emphasis added). As a result, under Thiret, prisoners like
Ankeney who are serving sentences for crimes committed after July 1,
13

1985, (the third category) are only entitled to have good time credit
applied toward their parole eligibility dates.
In discussing these different approaches to the handling of parole
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, since this Court
issued its decision in Thiret, statutory sentencing laws were again
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, 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
14

statute and correlated to the level of felony. Id. Accordingly, the Parole
Board retains the discretion to release a prisoner before the natural
expiration of the incarceration portion of his sentence, or to decline to
release a prisoner until the expiration of the prisoners term of
incarceration. In that event, when the prisoner finishes serving the
incarceration portion of his sentence, the prisoner is released to serve
the mandatory period of parole applicable to his sentence, as set forth
by the 1993 statutory mandate. Id.
In this way, the General Assembly kept the discretion afforded to
the Parole Board pursuant to the statutory amendments of 1985, but
standardized the length of the parole applicable to a particular
sentence. However, 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. In contrast, even under the
amendments made in 1993, the Parole Board still has the discretion to
15

release an inmate to parole prior to the expiration of the incarceration
portion of his sentence. See Craig v. People, 986 P.2d 951, 959 (Colo.
1999). However, if the Parole Board declines to do so, the inmate must
then serve a mandatory period of parole after completing the
incarceration portion of his sentence. Id.
As a result of these subsequent amendments, the terminology
employed by the Court in Thiret regarding discretionary and
mandatory parole can be confusing, and no longer adequately
differentiates between all of the different parole schemes. Indeed, in a
2007 case, 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
(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).
16

Nevertheless, this Court has repeatedly held that, for all crimes
committed before July 1, 1979, and after July 1, 1985, good time credits
are only relevant in determining the parole eligibility date and are not
to be used to determine the date that an inmate is entitled to release.
Bynum v. Kautzky, 784 P.2d 735, 738-39 (Colo. 1989) (Applying 17-
22.5-301 (2), for crimes committed between July 1, 1981 and July 1,
1985); Jones v. Martinez, 799 P.2d 385, 387-88 (Colo. 1990) (same);
Thorson v. Colorado Dept. of Corrs., 801 P.2d 540, 541 (Colo. 1990)
(same); Wiedemer v. People, 784 P.2d 739, 740 (Colo. 1989) (same);
Renneke v. Kautzky, 782 P.2d 343, 344 (Colo. 1989) (Applying 17-22.5-
301 (3) for crimes committed on or after July 1, 1985); Meyers v. Price,
842 P.2d 229, 231-32 (Colo. 1992) (same). As explained by the Court,
save for the exception of prisoners falling into the second category
identified in Thiret (those sentenced for crimes occurring between July
1, 1979, and July 1, 1985), good time and earned time credits do not
constitute service of sentence, but only serve the purpose of determining
an inmates parole eligibility date. People v. Watson, 892 P.2d 388, 390
(Colo. App. 1994), cert. denied (Colo. 1995) (Applying 17-22.5-301 (3),
17

C.R.S.). Any other interpretation would render the parole statutes
meaningless because an inmate would be already entitled to discharge
when he is eligible for discretionary parole. Bynum v. Kautzky, 784
P.2d at 738-39. See also, People v. Grenemyer, 827 P.2d 603, 606-08
(Colo. App. 1992) (Applying cases cited above to all crimes committed on
or after July 1, 1979 and rejecting ex post facto and equal protection
challenges).
5


5
Section 16-11-310, C.R.S., was repealed in 1988. 1988 Colo. Sess.
Laws, p. 715. In addition, the Colorado Supreme Court has held that
the statute, when construed in conjunction with the parole eligibility
statutes, was merely intended to apply good time credits to the parole
eligibility date rather than the discharge date. Bynum v. Kautzky, 784
P.2d at 737-39. The Colorado Supreme Court has also held that, to the
extent 310s provisions appeared to imply that good time credits could
be applied to the calculation of the discharge date, the enactment of
17-22.5-301 (3), C.R.S. in 1985 superseded that statute. Renneke v.
Kautzky, 782 P.2d at 344-45. Section 17-22.5-402, which addresses
discharge from custody, states, Notwithstanding subsection (1) of this
section, the full term for which an inmate is sentenced shall be reduced
by any earned time granted pursuant to section 17-22.5-405, except as
provided in section 17-22.5-403(3) and (3.5). 17-22.5-402(2).
Pursuant to the language of this statute, if the CDOC grants earned
time, the earned time that it grants to an inmate should be deducted
from that inmates sentence. The omission of the term good time from
this statutory provision further indicates that the legislature does not
intend good time credit to be deducted from the mandatory release date.
18

In a recent published decision, Nowak v. Suthers et al., 320 P.3d
340 (Colo. 2014), this Court emphasized that the Parole Board has the
discretion to grant or deny an inmate release to parole on their parole
eligibility date. Nowak was an inmate who was serving sentences for
felonies committed in 2003 and 2006. The majority of the issues that
the Nowak decision addresses issues that are not germane to this
case. However, this Court emphasized the point that the Parole Board
still has the discretion to grant or deny parole to an inmate before the
expiration of their sentence, on the inmates parole eligibility date. At
the end of the Nowak decision, on p. 38, the Court stated:
After the [parole eligibility date] is calculated, the
parole board has the ultimate discretion to grant
or deny parole based on the totality of the
circumstances, including but not limited to the
factors set forth in section 17-22.5-404(4), C.R.S.
(2013)such as the actuarial risk of re-offense,
the offender's institutional conduct, the adequacy
of the offender's parole plan, aggravating or
mitigating factors from the criminal case, and
whether the offender has previously absconded or
escaped, or attempted to do so, while on
community supervision.

Indeed, there are several statutory provisions that remain in effect
currently that discuss how the Parole Board should exercise its
19

discretion C.R.S. 17-22.5-404(4) discusses factors for the Parole Board
to consider in exercising its discretion. C.R.S. 17-22.5-403, 17-22.5-
404(7)(a) discusses how frequently the Parole Board should consider
inmates for release to discretionary parole if they chose to deny the
individual parole, on annual and triennial bases. Application of good
time to an inmates discharge date renders these statutes meaningless,
because the offender is eligible for release on the same date as he is
eligible for discretionary parole.
In addition, the federal courts that have applied Colorado law
regarding the application of good time credit have also determined that
except for individuals who are serving sentences for crimes committed
between July 1, 1979, and July 1, 1985, good time credits only apply
toward the date on which a prisoner becomes eligible for release to
discretionary parole. In a more recent decision that was decided long
after the 1993 amendments, the Tenth Circuit, applying Colorado law,
held that good time credits do not count toward sentence reduction, but
only toward ones parole eligibility date. Lusero v. Welt, 223 Fed. Appx
780, 784 (10th Cir. 2007). Thus, [a prisoners] loss of good time credits
20

[does] not inevitably increase[ ] the duration of his sentence, and
accordingly does not give rise to a right to due process. Lusero, 223
Fed. Appx at 784 (quoting Klein v. Coblentz, No. 96-1289, 1997 WL
767538, at *4; 1997 U.S. App. LEXIS 32757, (10th Cir. Nov. 19, 1997)).
See also Freeman v. Carroll, 2011 U.S. Dist. LEXIS 22045 (D. Colo.
Mar. 3, 2011) (In Colorado, good time credits generally do not result in
a mandatory reduction in sentence; rather, they affect only a prisoners
parole eligibility date, i.e., the date upon which the parole board can
make its discretionary determination as to a prisoners release on
parole.).
Thus, the applicable published case law consistently holds that
good time credit applies only toward the calculation of the date that an
inmate is parole eligible the date that he is eligible for consideration
to release to discretionary parole. Good time credit does not constitute
service of ones sentence, and it should not be applied toward the date
that an inmate is entitled to release, the only exception being those
prisoners serving sentences for crimes committed between July 1, 1979,
and July 1, 1985.
21

D. Earned time credit is applied to an
inmates mandatory release date, but
good time credit is not.
There may be some confusion as to the application of time credits
toward parole eligibility dates and mandatory release dates caused by
statements in the case law that both good time and earned time credits
only apply to an inmates parole eligibility date. Though the Colorado
Supreme Court stated in 1992 in Meyers v. Price that both good time
and earned time serve only to determine an inmates parole eligibility
date, since at least 1995 the Colorado General Assembly has amended
the statutes concerning earned time to clarify the legislatures intent
that earned time be deducted from an inmates sentence. The General
Assembly is presumed cognizant of judicial interpretations of statutes.
When the statute is subsequently amended, it is presumed that the
General Assembly was aware of the current case law and that the
Legislature intended to change the law. People v. McCullough, 6 P.3d
774, 778 (Colo. 2000). This presumption can be overcome by evidence
from the legislative history showing that the General Assembly merely
intended to clarify an ambiguity contained in the statute. Academy of
22

Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456, 464
(Colo. 2001).
In 1995, the legislature amended subsection 5 of C.R.S. 17-22.5-
405 to provide that inmates who were sentenced for non-violent felonies
after July 1, 1993, shall be eligible for earned time credit while on
parole, though such inmates are not eligible for earned time if they are
re-incarcerated following the revocation of their parole. See Session
Laws of Colorado, First Regular Session 1995, C.R.S. 17-22.5-405(5).
Time served on parole is, by definition, time served after the parole
eligibility date has already passed. If earned time were to continue to
only be applied to determine the parole eligibility date, as the court held
in Meyers v. Price, then the amendment making non-violent parolees
eligible for earned time credit would be meaningless. Their parole
eligibility dates have, by definition, already come and gone, and any
additional earned time granted to them while they are serving parole
would be moot if earned time only served to calculate the parole
eligibility date.
23

Any lingering doubt as to the legislatures intent was removed in
2009, when the legislature again amended C.R.S. 17-22.5-405. In
2009, the legislature added three subsections to this section. Pursuant
to newly added subsection 6, the parole board and the time computation
office of the CDOC are required to schedule earned release time for
inmates convicted of Class 4 and 5 felonies up to sixty days prior to the
mandatory release date and for inmates convicted of class 6 felonies up
to thirty days prior to the mandatory release date for inmates who meet
certain criteria. C.R.S. 17-22.5-405(6) (emphasis added). As explained
above, the parole eligibility date is the date on which an inmate
becomes eligible to be released to discretionary parole; the mandatory
release date is the date on which an inmate has completed serving the
incarceration portion of his sentence if the inmate has not previously
been released to parole. People v. Luther, 58 P.3d 1013, 1017 (Colo.
2002) (In addressing the mandatory period of parole [under the 1993
amendments], the General Assembly clearly stated that the parole
board maintains exclusive authority to grant parole.). The mandatory
release date, as a rule, occurs long after the parole eligibility date. See
24

id. As with awarding parolees earned time, it makes no sense to
require the CDOC to schedule an earned time review 60 to 30 days
before the mandatory release date if earned time serves only to
determine the parole eligibility date, which has already come and gone.
As a result, the portion of the Courts holding in Meyers v. Price
stating that earned time only serves to determine an inmates parole
eligibility date has been abrogated by the amendments to C.R.S. 17-
22.5-405. However, the language of these amendments to these
statutes does not abrogate the Courts holding as to the proper
application of good time credit. Therefore, the cases holding that good
time credit should be applied toward an inmates parole eligibility date
remain good law.
E. The error in the Ankeney decision.
The division of the court of appeals in Ankeney 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
25

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 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. Therefore,
according to the court of appeals, good time credit must be applied
toward the date that Ankeney must be released to serve his mandatory
parole. Id. at 9.
26

The court of appeals opinion in Ankeney is flawed. The reasoning
of the court of appeals appears to have been entirely based on its
determination that all sentencing schemes fall into one of two
categories, either discretionary parole schemes or mandatory parole
schemes.
6
Further, significantly, the court of appeals 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.
Ankeney, at 9.
However, the court of appeals was incorrect that the 1993
amendments reinstated the mandatory parole scheme discussed in
Thiret that applies to prisoners sentenced between July 1, 1979, and
July 1, 1985. As noted above, the labels mandatory parole and
discretionary parole utilized by the Colorado Supreme Court in Thiret
no longer accurately label all of the differing parole schemes enacted by
the General Assembly since the late 1970s. The 1993 amendments

6
In quoting from the Thiret decision, 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. Ankeney, at 7.
27

created a parole scheme that is different and distinct in critical respects
from the mandatory parole scheme that governs sentences for crimes
committed between July 1, 1979, and July 1, 1985. As the Colorado
Supreme Court stated, [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 failed to
make this distinction, and characterized the 1993 amendments as
reinstating the prior mandatory parole scheme, which they did not.
Under the 1993 amendments, the Parole Board still retains the
discretion granted to it pursuant to the 1985 amendments to release an
inmate to parole prior to the expiration of his sentence. See People v.
Norton, 63 P.3d at 343 (explaining that the 1993 amendments created a
28

period of mandatory parole that begins when the incarceration portion
of a sentence ends, either by its natural termination or as a result of an
early release decision by the parole board.) (emphasis added); People v.
Luther, 58 P.3d at 1017 (In addressing the mandatory period of parole
[under the 1993 amendments], the General Assembly clearly stated
that the parole board maintains exclusive authority to grant parole.).
However, the mandatory parole scheme discussed in Thiret -- the only
parole scheme under which good time credits apply to determine the
date a prisoner is entitled to release to parole -- divested the Parole
Board of any discretion to release an inmate to parole. See Thiret, 792
P.2d at 804. Under that scheme, the date upon which a prisoner is
entitled to release to parole is determined purely by a mathematical
equation. Id. This is clearly not the case under the 1993 amendments.
People v. Luther, 58 P.3d at 1017.
Further, the length of the parole to be served by a prisoner
sentenced under the mandatory parole scheme described by Thiret
varied depending upon the length of the prisoners sentence and how
much time had not yet been served. See Norton, 63 P.2d at 334. The
29

mandatory aspect of this sentencing scheme referred to the fact that
the Parole Board no longer had the discretion to determine if and when
a prisoner would be released to parole. See thiret 792 P. 2d at 804. In
contrast, under the 1993 amendments, the Parole Board still retains
the discretion to determine whether an inmate should be released to
parole prior to serving the entire incarceration portion of his sentence.
People v. Luther, 58 P.3d at 1017. However, under the 1993
amendments, the length of that parole is predetermined based upon the
level of Felony, and, if the Parole Board exercises its discretion not to
release a prisoner before the incarceration portion of his sentence
naturally expires, the prisoner must then also serve the statutory
period of mandatory parole. People v. Norton, 63 P.3d at 343. As a
result, the term mandatory applies to very different things in each of
these two parole schemes, and the 1993 amendments were not at all a
reinstatement of the mandatory parole scheme described in Thiret.
Because 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 his incarceration
30

sentence, to the extent that an analogy can be drawn to the previous
parole schemes identified by the Colorado Supreme Court in Thiret, the
1993 amendments are much more akin to the two discretionary parole
schemes outlined in that decision, under which good time credits only
apply to determine ones parole eligibility date. Indeed, 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 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.
7


7
The Respondents-Appellants also note that the portions of the statute
regarding awards of good time credit to prisoners sentenced for crimes
committed after July 1, 1979, states that though good time credits vest
for persons sentenced for crimes committed between July 1, 1981, and
July 1, 1985, good time credits do not vest for persons serving sentences
for crimes committed on or after July 1, 1985. C.R.S. 17-22.5-301(2)
and (3). The significance of this was discussed by the Court in Renneke
as part of the basis upon which it determined that good time credit
applies to ones parole eligibility date. See Renneke v. Kautzky, 782 P.2d
at 344-345. The 1993 amendments did not alter the provisions of
subsection (3), regarding awards of good time credits for persons serving
sentences for crimes committed on or after July 1, 1985, and therefore
the case law holding that good time credit should only be applied
toward parole eligibility dates remains applicable.
31

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
District Court case no. 14cv23; Exhibit G, Wu v. Executive Director,
Fremont District
32

Court case no. 14cv24).
8
Accordingly, the Repsondents-Appellants
submit that the Colorado Court of Appeals decision in Ankeney v.
Raemisch et al., Case No. 12CA1930, is contrary to statute and the
published case law discussed above.
II. The district court erred in concluding that it had
jurisdiction to discharge Ankeneys three year
mandatory parole after two months when the
Parole Board was not a party to the proceedings.
A. Standard of review.
The issue of personal jurisdiction is reviewed de novo. In re
Marriage of Malwitz, 99 P.3d 56, 59 (Colo. 2004).
B. The district court lacked personal
jurisdiction over the Parole Board to
order the discharge Ankeneys three
year mandatory parole after Ankeney
had only served two months of
mandatory parole.

Plaintiffs Complaint and Petition when originally filed, did not
and could not, relate to the calculation of his discharge from mandatory

8
This Court can take judicial notice of all of these cases. See Hughes v.
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).
33

parole. The subject of Plaintiffs Complaint and Habeas Corpus Petition
regarded when he should be released from prison and when his
mandatory parole should begin. After remand, on October 29, 2013,
Ankeney filed an Amended Petition, seeking discharge of his mandatory
parole.
9
However, he never named or served the Parole Board with any
pleading.
The parole board and CDOC are separate entities in the
Executive Branch. People v. Gallegos, 975 P.2d 1135, 1138 (Colo. App.
1998), cert. granted, judgment affirmed without opinion (Colo. 2000)
[summary affirmation due to 3-3 tie with J. Coats abstaining]. [The
case also holds that the length of parole and parole revocation are to be
determined by the statute designated by the Board rather than by
CDOC time computation]. See also Cardiel v. Brittian, 833 P.2d 748,
754 (Colo. 1992) (If prisoner refuses to sign his parole agreement or

9
As noted above, each sentence for an offense committed on or after
July 1, 1993, contains two separate and distinct components: An
incarceration component and a post-incarceration mandatory parole
component. People v. Luther, 58 P.3d at 1015. Because mandatory
parole is a separate component of his sentence, there is no calculation of
time credits for reduction of the mandatory parole period until Ankeney
began serving that part of the sentence.
34

conditions, only the Board has authority to suspend or rescind his
parole. The CDOC cannot disregard the parole order). Only the Parole
Board has legal authority to terminate the mandatory parole portion of
the sentence before its completion. There is no statute that grants the
CDOC similar power to grant an early discharge. In this case, Ankeney
never named or served the Parole Board as a respondent. After
Ankeney was released from incarceration to mandatory parole, the
Parole Board was Ankeneys custodian. Because the Parole Board
was not named as a party to the proceedings, the district court had no
jurisdiction over the Parole Board to order the discharge of Ankeneys
mandatory parole.
CONCLUSION
For the reasons set forth 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.


35

JOHN W. SUTHERS
Attorney General

/s/ James X. Quinn
JAMES X. QUINN, 21729*
First Assistant Attorney General
Corrections Unit
Civil Litigation and Employment Law
Section
Attorneys for Respondents-
Appellants*Counsel of Record


CERTIFICATE OF SERVICE
This is to certify that I have duly served the within Opening Brief
upon all parties herein via ICCES on this 27
th


day of May, 2014,
addressed as follows:

Marc B. Tull, Esq.
P.O. Box 1935
Elisabeth, CO 80107
MarcBTull@gmail.com

/s/ Mariah Cruz-Nanio