Court Shoots Down Latest Challenge to Indeterminate Sentence

In a ruling from Judge David Thorson of the 11th District Court here, Case No. 2011CV163, that sought a declaratory judgement on CDOC's application of the Lifetime Act, fails to meet the minimum legal requirements to proceed to court.

Thorson found that, "Given the foregoing, the Court concludes that Petitioner's pleadings fail to state a claim upon which the declaratory relief requested may be granted.''

The case was filed pro se by an inmate in the Fremont Correctional Facility. Thorson acknowledged the difficulty of an inmate representing themselves in court, but reminded the Petitioner, ''Pro se litigants are bounded by the same rules of civil procedures as attorneys licensed to practice law in this state."

Thorson outlined three arguments of the Petitioner that are potential or actual existing controversies that could warrant a declaratory judgement.

1. The statutory indeterminate sentencing scheme applicable to Petitioner requires that he be granted earned time during the indeterminate portion of his sentence resulting in mandatory release upon parole or discharge at some point.

Court's Response: Earned time is only used for purposes of determining parole eligibility and does not constitute service of sentence. (Rather v. Butlers, 973 P.2d 1264,1266(C010.1999))

2. The statutory indeterminate sentencing scheme applicable to Petitioner cannot be interpreted to allow the parole board, solely in its discretion, to decide whether and when Petitioner is paroled during the indeterminate portion of his sentence.

Court's Response: The decision to grant parole or absolute release to an inmate incarcerated for an indeterminate sentence under the Lifetime Act is vested within the sound discretion of the parole board and is not subject to judicial review. (People v. Oglethorpe, 87 P.3d 129, 136 (Colo. Ct. App. 2003) and Vensor People, 151 P.3d 1274,1277 (Co1o.2007))

3. The statutory indeterminate sentencing scheme applicable to Peitioner unconstitutionally fails to provide adequate due process protections with regard to the decision(s) to grant or deny parole during the indeterminate portion of petitioner sentence.

Court Response: There is no federal constitutional right to parole and no constitutionally protected liberty interest in parole based upon the applicable statutory language because the parole board is given total discretion in granting parole. (Jago v. Ortiz, 245 F. App'x 794,797 (10th Cir. 2007)) The Colorado Court of Appeals has held that the period reviews provided for by statute, once an offender is eligible for parole, satisfy substantive and procedural due process requirements. (People v. Oglethorpe, 87 P.3d 129, 134 (Colo.Ct.App.2003))

The Petitioner has 30 days to respond to the courts findings or the matter will be dismissed. At this time the Petitioner is not expected to pursue the case further.

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New Challenge to Colorado's Indeterminate Sentence Filed in District Court