COLORADO SURPREME COURT

2 East 14
th
Avenue
Denver, CO 80203
________________________________________

On Appeal from Honorable J udge 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.
________________________________________
David A. Lane, #16422
Danielle C. J efferis, #47213
KILLMER, LANE & NEWMAN, LLP

The Odd Fellows Hall
1543 Champa Street, Suite 400
Denver, Colorado 80202
Telephone: (303) 571-1000; Fax: (303) 571-1001
Email: dlane@kln-law.com
djefferis@kln-law.com














COURT USE ONLY


Case No.: 2013SA336


ANSWER BRIEF

DATE FILED: September 2, 2014 3:44 PM
FILING ID: FDD6C1EA16C62
CASE NUMBER: 2013SA336
i

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:


The brief complies with C.A.R. 28(g).
Choose one:
It contains 9,219 words.
It does not exceed 30 pages.


The brief complies with C.A.R. 28(k).
For the party raising the issue:
It contains under a separate heading (1) a concise statement of the applicable
standard of appellate review with citation to authority; and (2) a citation to
the precise location in the record, not to an entire document, where the issue
was raised and ruled on.

For the party responding to the issue:
It contains, under a separate heading, a statement of whether such party
agrees with the opponents statements concerning the standard of review and
preservation for appeal, and if not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.

KILLMER, LANE & NEWMAN, LLP



David A. Lane

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF ISSUES PRESENTED .1
1. Does the law require that all good time, earned time and educational earned
time accumulated by a prisoner be counted in figuring out that prisoners
mandatory release date if that prisoner is subject to a mandatory term of
parole upon completion of incarceration? ..3

2. Is a writ of habeas corpus an appropriate remedy when an individual is being
held on parole beyond a statutory discharge date? 3
STATEMENT OF THE CASE ........................................................................................... 3
COURSE OF PROCEEDINGS BELOW... 3

FACTS.5

ARGUMENT.. ..6

I. The Colorado Court of Appeals was correct in holding that the current
state of the law requires that any offender subject to a term of mandatory
parole, such as Ankeney, must be awarded statutorily mandated earned time,
good time and educational earned time in the calculation of that offenders
mandatory release date from prison and the commencement of the required
period of parole ..... 6
A. Relevant Statutes ... 7

B. The Proper Method for Calculating Ankeneys PED .. 11
C. The COD Formula Used in Setting Ankeneys PED ... 12

iii

D. What the Law Demands in Calculating Ankeneys MRD ... 15

E. Basic Principles of Statutory Construction Mandate This Result..18

F. Relevant Case Law .. 22

G. Ankeney Was Not Credited With Any Good Time Despite his
Having Accumulated In It Violation of 301 . 25

H. DOC Failed To Use Discretion In Not Counting Education Earned
Time . 28

I. No Rational Distinction Can Be Made For Applying 301 Good
Time . 28

J . The Parole Boards Discretion To Grant Or Deny Parole Exists
Only Between The Dates Of The PED and The MRD .... 31

II. The Court Below Correctly Concluded That Ankeney Should Be
Discharged From Parole Whether Or Not He Named The Parole Board As A
Party .... 37

CONCLUSION....38
CERTIFICATE OF SERVICE .......................................................................................... 40

ADDENDUM .. 41
iv

TABLE OF AUTHORITIES

CASES PAGES
Ankeney v. Clements,
Record, p. 20-33, 94-203....1, 5
BP Am. Prod. Co. v. Patterson,
185 P.3d 811, 813 (Colo. 2008) .. 20
Bynum v. Kautzky,
784 P.2d 735, 736, 739 (Colo. 1989) .... 23, 24
Kestler v. N.C. Local Governmental Emples. Re. Sys.,
808 F. Supp. 1220, 1224 (W.D.N.C. 1992) ..... 38
Martin v. People,
27 P.3d 846, 848 (Colo. 2001) 20
Meyers v. Price,
842 P.2d 229, 230 (Colo. 1992) ..... 28-29
Nowak v. Suthers, et. al.,
320 P.3d 340, 345 (Colo. 2014) 19-20
Pa. Bureau of Corr. V. United States Marsals Serv.,
474 U.S. 34, 43 (1985) 20
Pennobscot, Inc. v. Bd. Of Cnty. Commrs,
642 P.2d 915, 922 (Colo. 1982) .. 21
People v. Black,
915 P.2d 1257, 1258-59, 1262 (Colo. 1996) ... 24
People v. Cooper,
v

27 P.3d 348, 352-354 (Colo. 2001) . 6, 19
People v. Gavin,
835 P.2d 603, 606 (Colo. App. 1992) . 20
People v. Hall,
87 P.3d 210 (Colo. App. 2003) ... 36
People v. Luther,
58 P.3d 1013, 1017 (Colo. 2002) ... 37
People v. Norton,
63 P.3d 339, 343 (Colo. 2003) 24
People v. Santisteven,
868 P.2d 415, 418 (Colo. App. 1993) ..20
Rather v. Suthers,
973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S. 834 (1999) .. 8
Simon v. Jones,
550 F. Appx 670 (10
th
Cir. 2014) ... 27
Superintendent, Mass. Corr. Inst. V. Hill,
472 U.S. 445, 454 (1985) 27
Thiret v. Kautzky,
792 P.2d 801, 805 (Colo. 1990) .... 23, 36
STATUTES
C.R.S. 2-4-201 . 21
C.R.S. 2-4-205 .. 20
vi

C.R.S. 13-4-102 .......................................................................................................... 4
C.R.S. 17-22.5-103 ... 17
C.R.S. 17-22.5-301 .... passim
C.R.S. 17-22.5-302 passim
C.R.S. 17-22.5-403 passim
C.R.S. 17-22.5-404 ... 37
C.R.S. 17-22.5-405 .... passim
C.R.S. 18-1.3-401 (1)(a)(V)(A) 36
C.R.S. 1973 (1980 Repl. Vol. 1B) .... 21
6 C.R.S. (2002) 37
OTHER AUTHORI TY
C.A.R. 28(f) ... 7
C.R.C.P. 106 ... 1

1
Petitioner-Appellee Randal Ankeney by and through undersigned
counsel respectfully files the following ANSWER BRIEF:
Statement Of The Issues Presented

The State Appellant is appealing from a habeas corpus/mandamus
ruling in Fremont County district court in which in Mr. Ankeney alleged that
he was unlawfully being kept on parole. The district court agreed with
Ankeney and he was discharged from parole. In reality, the State is
attempting to reverse an unpublished decision by the Colorado Court of
Appeals, Ankeney v. Clements, (Record, p. 94-203) which formed the
cornerstone of the district courts opinion. The Appellants failed to appeal
that decision.
Ankeney as a pro se inmate doing an eight-year sentence, filed a
habeas petition as well as a Complaint pursuant to C.R.C.P. 106 seeking
mandamus relief in the district court of Fremont County. He alleged inter
alia that the Department of Corrections (DOC) was failing to credit good
time and educational earned time toward his mandatory release date
(hereinafter MRD) even though he was required to serve a three-year
mandatory parole term subsequent to his incarceration. Mr. Ankeney lost in
the Fremont County district court and took a pro se appeal from that
decision. In an unpublished opinion the Court of Appeals found, pursuant to
2
well settled precedent established by this Court, that because Ankeney was
subject to a mandatory term of parole following incarceration, he was
entitled to have all good time, earned time and educational earned time
which he had accumulated, counted toward the establishment of his MRD
from incarceration. The State of Colorado never appealed that decision.
Very shortly after the filing of the Court of Appeals opinion, without
ever having his parole voted on or approved by the Parole Board, having hit
his MRD, Ankeney was released from prison and placed on a term of
mandatory parole for three years, which led to the filing of his second
habeas/mandamus petition in Fremont County district court. Ankeney
alleged that because he was held past his MRD, that time must be counted
for his parole. The district court concluded that Ankeney was correct and he
was subsequently discharged from parole. The State has appealed only from
that ruling. This Court has jurisdiction only over the second habeas corpus
petition as the State never appealed to the Court of Appeals from any aspect
of the mandamus order and has thus waived any claims regarding the
recalculation of his time pursuant to the order of the district court. The
issues on appeal are:


3
1. Does the law require that all good time, earned time and
educational earned time accumulated by a prisoner be counted in
figuring out that prisoners mandatory release date if that
prisoner is subject to a mandatory term of parole upon
completion of incarceration?

2. Is a writ of habeas corpus an appropriate remedy when an
individual is being held on parole beyond a statutory discharge
date?

Statement Of The Case
1


Ankeney, as previously stated, successfully appealed his original
habeas corpus case to the Colorado Court of Appeals. The State never
appealed that ruling. J ust after to the Court of Appeals ruling, Ankeney was
released from prison and placed on parole. Ankeney contended that because
DOC had held him beyond his MRD, the time spent behind bars should
count as time taken off of his three-year period of mandatory parole. The
district court agreed and Mr. Ankeney was discharged from parole, thus
inspiring this appeal by the State.
Course Of Proceedings Below
When Appellees filed no appeal, the Court of Appeals remanded the
case to the district court. There, the court issued a mandamus order requiring

1
It is noteworthy that throughout its Brief, Appellant continually refers to
the events surrounding Ankeneys successful prosecution of his original
habeas petition which resulted in the Court of Appeals ruling. (e.g. Brief,
pps. 3-5). Because the State never appealed that ruling this appeal is, in
effect, an untimely effort by the State to overturn the Court of Appeals
decision in Ankeney.
4
Appellants to correctly calculate Ankeneys MRD. That recalculation took
his MRD from the DOC-calculated date of August 28, 2013 to the correct
date of October 28, 2010. The district court in Ankeneys subsequent effort
to end his parole, held that Mr. Ankeneys three year period of mandatory
parole would have ended no later than October 28, 2013, and accordingly,
granted Mr. Ankeneys habeas petition ordering his immediate release from
parole.
2

2
Despite the district courts order, Appellants did not immediately release
Ankeney, who continued to report to parole until the mandamus order was
processed and the new MRD updated in the departments system.
Because the State never appealed from the Court of Appeals
decision, the MRD for Ankeney which was set pursuant to the mandamus
and not appealed, is law of the case and cannot be disturbed by this Court.
This recalculation was not a habeas ruling, which is appealable to this Court,
but a mandamus ruling which is not. Because the mandamus (not the
habeas) resulted in a discharge from parole date of October 28, 2013, and
because the Appellants never appealed from that calculation, whatever this
Court decides to do in this case is essentially moot as applied to Ankeney.
The two forms of relief, mandamus and habeas are very closely
related in context of this case, however, this Court does not have jurisdiction
over any mandamus orders in the court below when no appeal was filed in
the Court of Appeals. See C.R.S. 13-4-102.
5
Facts

On J anuary 4, 2008, Ankeney was sentenced in Larimer County
District Court to an eight-year prison term to be followed with a three-year
period of mandatory parole. He was credited with 75 days of pretrial
confinement. All parties agree that the Larimer County case was his
controlling sentence for purposes of this Courts analysis.
Ankeney had no disciplinary issues, was complying with all of the
programs set up for him while incarcerated including the Fremont
Correctional Facilitys incentive living unit program, the education program,
the drug and alcohol program and the 7 Habits program. He helped teach
G.E.D. classes to other inmates. All of this information was included in the
district court file prior to the Court of Appeals decision in Ankeney. (Record
pps. 20-33). At no time has the State ever disputed that Ankeney has met all
of the conditions precedent to obtaining good time, earned time and
educational earned time, all of which are provided for by Colorado statutes.
The only significant issue before this Court is whether Ankeney
should have been credited for his good time accumulated pursuant to C.R.S.
17-22.5-301 and his educational earned time pursuant to C.R.S. 17-22.5-
302 in order to set his MRD. No party disputes that he had accumulated
6
these credits and no party disputes that DOC did not apply them in setting
his MRD.
ARGUMENT
I. The Colorado Court of Appeals was correct in holding that the
current state of the law requires that any offender subject to a
term of mandatory parole, such as Ankeney, must be awarded
statutorily mandated earned time, good time and educational
earned time in the calculation of that offenders mandatory
release date from prison and the commencement of the required
period of parole.

Standard of Review Agreed that the standard is De novo
In what may be considered a vast understatement, this Court has held
that [m]any changes have been made to the laws surrounding parole in the
past two decades, and interpretation of the statutes is a multi-faceted and
confusing task. People v. Cooper, 27 P.3d 348, 352 (Colo. 2001). In
summary, this Court understood that after various amendments to parole
statutes between 1979 and 1990, in 1993, the General Assembly enacted the
most significant change when it adopted a scheme of mandatory parole for
convicted felons. Id. at 353.


7
A. Relevant statutes.
3
It is helpful to firmly keep in mind that the only real issue before this
Court in this case is whether statutory good time pursuant to C.R.S. 17-
22.5-301, educational earned time pursuant to C.R.S. 17-22.5-302 along
with statutory earned time pursuant to C.R.S. 17-22.5-405 must be credited
toward determining an offenders mandatory release date (MRD) from prison
so that the offender may commence his or her mandatory period of parole.
The statutes involved in this case and the jargon used to describe various
parole-related events have been massively confusing over the years due to
changes in the law and the application of parole/release concepts and
terminology. In an effort to help simplify the statutory labyrinth, the
following is a summary of the relevant statutes

4
C.R.S. 17-22.5-403 Parole Eligibility Date
:
5

3
See addendum reproducing the relevant statutes pursuant to C.A.R. 28(f).
The statutes were highlighted by undersigned counsel in order to ease this
Courts review.
This statute makes
most offenders, including Ankeney, parole eligible after serving fifty percent
4
It may be helpful to think of a sentence in terms of a timeline, with the
offender beginning at the left side working left to right by serving time. At
the same time, good time, earned time and educational earned time are
accruing at the other end of the timeline and moving right to left toward the
offender. When time served meets credits accumulated, an offender has hit
the mandatory release date.
5
The PED in this case is not at issue. Appellants argue extensively that
good time and educational earned time should only apply to the PED,
8
of their sentence less ten days per month of any earned time accumulated
pursuant to C.R.S. 17-22.5-405. This statute sets an inmates discretionary
parole eligibility date (hereinafter PED). Appellants do not dispute this.
6
C.R.S. 17-22.5-301, Good Time

Nowhere in the statute is there any mention of good time or educational
earned time. The PED is only set by halving a sentence and deducting any
earned time accumulated pursuant to 405.
7

however the issue before this Court is not in the calculation of the PED, but
the MRD.
Each person sentenced for a
crimewhose conduct indicates that he has substantially observed all of the
rules and regulations of the institution or facility in which he has been
confined and has faithfully performed the duties assigned to him shall be
entitled to a good time deduction of fifteen days a month from his
sentence. This statute is at the heart of the issue in this case. All inmates
situated as Ankeney, are entitled to fifteen days good time credit per month,
deducted from their sentence. It is not disputed that it is discretionary
whether DOC awards good time to any inmate, but DOC can only use its
6
DOC erroneously fails to calculate an inmates PED in this fashion, as this
brief will point out. They ultimately get the right number for the wrong
reasons.
7
Rather v. Suthers, 973 P.2d 1264, 1266 (Colo. 1999), cert denied, 528 U.S.
834 (1999) held that good time credits are awarded for an inmates good
behavior during incarceration, while earned time credits are awarded for
substantial progress in rehabilitation or work programs.
9
discretion not to award it through inmate misconduct. It is undisputed that
Ankeney had no misconduct. (Record, p. 33). DOC claims that not only is
it within its discretion to award it, it is within its discretion whether to apply
it regardless of whether an inmate has misbehaved. Ankeney argues, and the
Court of Appeals agreed, that good time must be credited to an inmates
MRD absent misconduct by the inmate.
C.R.S. 17-22.5-302, [Educational] Earned Time (1) In addition
to the good time authorized in 17-22.5-301, earned time, not to exceed
thirty days for every six months of incarceration, [five days per month] may
be deducted from the inmate's sentence upon a demonstration by the inmate
of progress in work, group living, counseling etc. Additionally,
302(1.5)(a) provides that in addition to this five days per month, if the
inmate is compliant, he or she shall receive earned time pursuant to
section 17-22.5-405. Again, Appellants argue just as they argued on the
good time statute that DOC not only has discretion whether or not to award
it, but whether once awarded, it must be applied. Ankeney makes the same
argument against their position.
C.R.S. 17-22.5-405, Earned Time All inmates in Ankeneys
position are entitled to ten days of earned time credit every month for
making progress in work and personal growth. DOC should credit earned
10
time in two ways. It should be used to set a PED pursuant to 403, and it
should be used to help set the MRD pursuant to 405. DOC should
calculate an inmates PED by halving the sentence and then further
deducting ten days per month for earned time as explicitly set forth in the
plain language of 403 supra. The evidence shows however, that
Appellants believe that good time under 301 is subsumed by the provisions
of 403; the statute which cuts an inmates time in half in order to calculate
parole eligibility. DOC in the district court claimed that the fifty percent
eligibility date in 403 is actually good time as defined in 301. (See
affidavit of Mary Carlson, Record pps. 55-56). Despite this mistake, DOC
correctly calculated Ankeneys PED by cutting his sentence in half and
deducting earned time from that number.
DOC also correctly uses earned time to calculate an inmates MRD by
taking ten days per month off the back end of an inmates sentence.
Inexplicably, however, DOC uses only this 405 credit in calculating the
MRD of any inmate. DOC completely ignores 301 good time and 302
educational earned time credit for determining an MRD, thus forming the
only real issue in this entire case. In other words, in figuring the MRD, DOC
subtracts ten days per month off the back end (the right side of the timeline)
from an inmates sentence. They do not do the same with good time or
11
educational earned time. There is absolutely no statutory authority or case
law for distinguishing earned time (coming off the back end of an inmates
sentence to establish the MRD) and good time/educational earned time
(which DOC does not count toward an MRD or, as it turns out, anything else
in DOCs calculus). It is Ankeneys position, as well as that of the Colorado
Court of Appeals, that 301 good time and 302 educational earned time
must be given effect by the Appellants and that there is no basis in case law
or statute to apply earned time to an MRD but not good time and educational
earned time as well.
In order to simplify this extremely dense area of law, I will illustrate
the issues in this case by using Ankeneys actual situation and walk this
Court through the labyrinth of statutes in order to demonstrate what should
have happened in Ankeneys case compared and contrasted with what
actually occurred.
B. The Proper Method For Calculating Ankeneys PED.
8
Ankeney received an eight-year DOC sentence to be followed by a
mandatory term of parole for three years. On the first day of incarceration,
Ankeney, on an eight year sentence, would have had a discretionary parole


8
The reason the PED is at issue in this case is because Appellants argue
repeatedly that Ankeneys good time under 301 was given to him in setting
his PED. That is incorrect.
12
eligibility date of four years as mandated in 403.
9
After serving one month
of his sentence, because Ankeney was working at a job at DOC and
obtaining earned time, his PED was reduced by ten days earned time granted
pursuant to 405. At that point under the provisions of 403, his PED
moved toward him on a timeline and made him parole eligible after three
years, eleven months and twenty days. Because he was steadily employed
and doing a good job at DOC, every month, his PED continued to move
toward him at the rate of ten days per month earned time pursuant to 403
as he accrued earned time under 405. Had he accumulated all possible
earned time, his PED would have been at the two year, eight-month mark.
10
C. The DOC Formula Used In Setting Ankeneys PED.

DOCs calculations were essentially correct in this regard.
Because Appellants extensively argue that good time and educational
earned time are used only to set a PED, in order to fully understand the flaws
in that argument, it is important to examine what DOC actually did in
calculating his PED. The definitive proof that DOC failed to correctly

9
Parole eligibility at the fifty percent mark has absolutely nothing
whatsoever to do with the fifteen day per month sentence reduction found in
301, the good time statute, despite the affidavit of Mary Carlson, the DOC
time computation expert. (Record pps. 55-56).
10
Pursuant to 403, the math is: 8 years x 50% =4 years =48 months x 10
days earned time per month =16 months earned time. 4 years 16 months
=2 years, 8 months =Ankeneys PED.
13
implement the above-referenced parole statutes is seen in the Affidavit of
Mary Carlson, the time computation manager for DOC, (Record pps. 55-56).
In the original Ankeny habeas/mandamus petition, she provided an affidavit
outlining very clearly how DOC misuses 301 good time and 302
educational earned time in calculating both PEDs and MRDs. In paragraph
eight of her affidavit she says:
8. Offender ANKENEYS PED is calculated to be past. C.R.S. 17-
22.5-403 requires fifty percent of the sentence be satisfied before the
inmate becomes eligible for parole. ANKENEYS PED was
calculated as follows:

Eight years sentence, less seventy-five days presentence
confinement credit (pscc), less seventy-five days for good time
on the pscc, give a remainder of seven years and seven months
for purposes of calculating the PED. To this time, credit of
fifty percent for good time (fifteen days per month, per CRS
17-22.5-301) reduces his time left to serve to three years,
nine months and fifteen daysand gives a resulting PED of
October 19, 2011. Offender ANKENEY has not had any of his
good time withheld during his incarceration. October 19, 2011
was further reduced by granting earned time in the amount of
three hundred ten days and projected earned time in the amount
of thirty days, resulting in a PED of November 9, 2010.
(emphasis added)

Apparently, DOC understands that 301 credit must be effectuated
somewhere in an offenders parole calculus. DOC took the position in the
first habeas/mandamus proceeding that 403s parole eligibility at the fifty
14
percent mark is in fact the application of 301 good time.
11
Neither good
behavior nor bad behavior changes the PED of any inmate under 403.
Section 403 has nothing whatsoever to do with good time. Mary Carlson
swears in her affidavit that 403 is a credit of fifty percent for good time
(fifteen days per month, per 301) when in fact a credit of fifty percent
would be thirty days per month for every thirty days served. Fifteen days off
per thirty days served is a thirty-three percent time reduction. Her affidavit
discloses that DOC uses (or misuses) good time despite the clear language of
403 mandating the use of earned time. The fact that the official in charge
of all DOC time computation believes fifteen days of credit for every thirty
days served is a fifty percent reduction in sentence is shocking. It is also
shocking that DOC ignores the plain language of these statutes.
12

Calculating
the PED however, is not the issue before this Court. It is the MRD which is
of concern in this case.

11
This argument has been abandoned by the Appellants in this proceeding,
as it is abundantly clear that 403 has no relationship whatsoever to 301.
12
Despite the fact that DOC did this calculation incorrectly by referencing
good time, the ultimate calculation was correct as they cut his sentence in
half (which they erroneously claim is good time) and deducted earned time.
When Ankeney finally did meet the Parole Board for his discretionary early
parole it was denied, which was within the Boards discretion.

15
D. What The Law Demands In Calculating Ankeneys
MRD.

While Ankeneys PED moved toward him pursuant to the calculus
above, his MRD should also have been moving toward him assuming all
possible earned time pursuant to 405 (ten days per month), educational
earned time pursuant to 302 (thirty days every six months, which translates
into five days per month) and good time pursuant to 301 (fifteen days
every month). Instead, DOC was moving his MRD toward him only at the
rate of ten days earned time per month under 405. Therefore, good time
under 301 and educational earned time under 302 played no role
whatsoever in calculating either Ankeneys PED (which is a correct
interpretation of 403 as only earned time counts toward a PED) or his
MRD (which is an incorrect interpretation of 301 and 302). In the world
of DOC time computation, that time simply disappears, thereby ignoring the
clear intent of the legislature in enacting these statutes.
Under a correct reading of the law, however, the maximum earned
time/educational earned time/good time credit any inmate can possibly get
toward calculating his or her MRD is therefore thirty days per month. For
every thirty days of incarceration actually served on the front end of a
sentence, thirty days can be taken off the back end pursuant to earned time,
good time and educational earned time credits.
16
The entire dispute pending before this Court is that DOC completely
ignores 301 good time and 302 educational earned time in calculating
Ankeneys MRD, never crediting him with fifteen days per month good time
or five days per month educational earned time anywhere, despite exemplary
behavior and educational programs completed.
Ankeney should have been released when he hit his MRD at
approximately the four-year mark to serve his mandatory parole. The MRD
should have occurred when all of his time served on the front end of his
sentence met all of his good time, earned time and educational earned time
credits taken off of the back end of his eight-year sentence, which would
have been at the four-year mark.
13
Mary Carlsons affidavit shows that DOC only credited Ankeney with
the ten days per month deduction for earned time, off the back end of a
sentence but completely ignored his good time or educational earned time.

14

13
405 ten days per month, education earned time 302-five days per
month, and good time 301-fifteen days per month, all taken from the back
end of his sentence.

Because DOC policy is to only apply 405 earned time toward Ankeneys
MRD, at the four year mark when Ankeney should have been hitting his
14
Indeed, if this Court reviews Ankeneys official time computation reports
and other DOC records, it will see that Ankeney was report free and was
engaged in many educational programs, yet 301 and 302 credits are
completely absent in the MRD calculation. (Record pps. 20, 26, 28, 30, 33,
36, 39, 40, 55).
17
MRD, DOC had taken only sixteen months off the back end of his sentence
for earned time making his MRD at the six-year-eight-month mark.
Nowhere did good time count for Ankeney, despite the plain language of
C.R.S. 17-22.5-301(1) mandating that inmates shall receive good time
credits. Nowhere in DOCs time computation did Ankeney ever receive a
single day off his sentence for good time or educational earned time despite
the concession by DOC that he accumulated both.
In her affidavit, Ms. Carlson states under oath:
10. Offender ANKENEYS MRD is estimated to be April 19, 2014
15

,
C.R.S. 17-22.5-103 requires that no inmate be discharged from
DOC until he has remained the full term for which he was sentenced.
ANKENEYS MRD on his eight year sentence is calculated as
follows:
Eight years sentence, less seventy-five days pscc, gives a
remainder of seven years, nine months and fifteen days
remaining to be served as of the sentencing date until
completion of the sentence. This is added to the SED of
Larimer case 06CR1548, which is J anuary 4, 2008, and gives a
resulting MRD of October 19, 2015. [Ankeney was
incarcerated on October 19, 2007 at the county jail] CRS 17-
22.5-405 allows inmates in the DOC to earn time in order to
reduce their MRD. Offender ANKENEY has earned a total of
one year and five months; he has also been projected to earn the
full ten days per month in his last three months of incarceration
and this thirty days also reduces his MRD. The reduction of
earned time and projected earned time of one year and six
months results in the currently estimated MRD of April 19,
2014.

15
Approximately six years, four months after he entered DOC instead of the
four years he should have had
18

Good time pursuant to 301 and educational earned time pursuant to
302 are completely irrelevant to DOCs calculations for an MRD. Had
DOC correctly calculated Ankeneys MRD, he would have been released to
parole in approximately the fall of 2011. Instead, he was released on August
28, 2013 having served almost all of his parole period while incarcerated. In
the second habeas/mandamus petition in this case, the district court correctly
calculated that Ankeney had served most of his parole in prison with the
remainder commencing at the point of his release and he had therefore hit
his statutory discharge date (hereinafter SDD) and was released from all
supervision.
E. Basic Principles Of Statutory Construction Mandate
This Result.

The Court of Appeals achieved the correct result in this case by
analyzing the relevant cases and statutes. This is a very difficult analysis to
follow, albeit a correct one. Given the Gordian Knot of cases and statutes
set forth by Appellants, it is suggested that another way of approaching this
case my be more productive and less confusing. That is to start anew and
simply rely upon elementary principles of statutory construction to interpret
the relevant statutes. This Court will come to precisely the same conclusion
as the Court of Appeals, however this a road more easily traveled. Applying
19
basic principles of statutory construction to this case, the tortured history of
Colorado parole law outlined by Appellants becomes interesting, but not
dispositive or even particularly relevant.
C.R.S. 17-22.5-403 is the definitive statute setting forth the factors
for parole eligibility. The legislature has specifically stated that someone in
Ankeneys position 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. No
other statute defines parole eligibility. The only reference to any time credit
for determining the PED is the earned time credit pursuant to 405. Neither
301 or 302 have anything whatsoever to do with determining a PED.
This is critically important because the major thrust of Appellants entire
argument to this Court is, that despite 403s explicit commands regarding
calculating parole eligibility Appellants argue that those two statutes are to
be applied only in defining an inmates parole eligibility. (Brief, pps. 8, 9,
16, 17, 19, 20, 21-24).
Basic principles of statutory construction tell this Court that the word
shall means that there is no discretion involved in the application of this
law. People v. Cooper, 27 P.3d 348, 354 (Colo. 2001); Nowak v. Suthers, et
20
al., 320 P.3d 340, 345 (Colo. 2014); People v. Santisteven, 868 P.2d 415,
418 (Colo. App. 1993) ("The word 'shall' is mandatory.").
Further, when a statute definitively addresses a specific circumstance,
it must be deemed the controlling authority on that point. Any general
statutes or case law to the contrary must yield to the specific intent of the
legislature as set forth in the statute which specifically deals with the issue at
hand. Pa. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43
(1985); BP Am. Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008);
Martin v. People, 27 P.3d 846, 848 (Colo. 2001); C.R.S. 2-4-205 (the
specific provision must prevail over the general provision).
The good time statute, 301, prima facie unambiguously mandates a
deduction from an inmates sentence:
17-22.5-301. Good time: (1) Each person sentenced for a crime
committed[see subsection 3 of the statute making this applicable to
Ankeney], whose conduct indicates that he has substantially observed
all of the rules and regulations of the institutionshall be entitled to
a good time deduction of fifteen days a month from his sentence.

There is no ambiguity in this statute. People v. Galvin, 835 P.2d 603,
606 (Colo. App. 1992) (There is a presumption that the word "shall," when
used in a statute, is mandatoryHence, the General Assembly's use of the
word "shall" mandates good time deduction. Ankeney should have received
twenty-four months of good time when he hit the four-year mark of his
21
incarceration, deducted from his eight years. He did not receive this credit
although he earned it. On its face it applies to mandatory parolees and
discretionary parolees. All of the interpretations outlined by Appellants
juxtaposed with irrelevant case law notwithstanding, the plain terms of this
statute mean precisely what they say. It is presumed that the general
assembly in enacting a statute intended it to be effective. Section 2-4-
201(1)(b), C.R.S. 1973 (1980 Repl. Vol. 1B); Pennobscot, Inc. v. Bd. of
Cnty. Comm'rs, 642 P.2d 915, 922 (Colo. 1982) (Quinn, J ., dissenting).
The earned time statutes are similarly straightforward:
17-22.5-302. [Educational] Earned time: (1) In addition to the good
time authorized in section 17-22.5-301, earned time, not to exceed
thirty days for every six months of incarceration, may be deducted
from the inmate's sentence upon a demonstrationby the inmate that
he has made substantial and consistent progress in [programs
etc.](1.5) (a) In addition to the thirty days of earned time
authorized in subsection (1) of this section, an inmate who makes
positive progressshall receive earned time pursuant to section
17-22.5-405.

These statutes prima facie tell us that educational earned time credits
(five days per month) are not mandatory but may be deducted, however if an
inmate is successful in these programs, earned time pursuant to 405 is
mandatory.
C.R.S. 17-22.5-405. Earned time - earned release time - achievement
earned time: (1) Earned time, not to exceed ten days for each
month of incarceration or parole, may be deducted from the
22
inmate's sentence upon a demonstration to the department by the
inmate[progress in work, counseling etc.]

This statute becomes mandatory through a reading of 302, supra.
DOC views this as the only time which must come off the back end of
Ankeneys sentence and they did in fact deduct it in their calculation.
Simple statutory construction obviates the need for a journey through
the maze of prior statutes and cases, however because the Court of Appeals
ventured down that path, on we go.
F. Relevant Case Law.
The case law defining these statutes is extraordinarily difficult to
follow because over the years, this Court has used terms which have
changed in meaning as the legislature has frequently amended the parole
statute. The upshot of the case law, as found by the Court of Appeals, is that
this Court has held that when an offender is subject to incarceration followed
by a mandatory term of parole, good time, earned time and educational
earned time must be credited toward that inmates MRD. If an inmate is not
subject to a mandatory term of parole and could kill the number at DOC
16

16
Meaning to be released from prison straight into the community with no
parole supervision.
,
there is no MRD other than the expiration of the sentence. In that scenario,
good time, earned time and educational earned time need not count toward
23
release to parole but only to a PED. With a discretionary parole inmate, on
the other hand, if the Parole Board decides to exercise its discretion and
release that inmate prior to the expiration of his or her sentence, good time,
earned time and educational earned time can be used only to set that
inmates PED. An MRD is only used if incarceration is followed by parole.
If an offender is not subject to parole, there is no MRD, there is only a
statutory discharge date (SDD) which means that the entire sentence has
been served and the offender is released from custody. There is no parole
and he or she is now free from all supervision of any kind.
Good time credits reward an inmate who substantially observes the
rules and regulations of the facility in which he is confined and who
faithfully performs his assigned duties. Bynum v. Kautzky, 784 P.2d 735,
736 (Colo. 1989). Earned time credits may be earned if the inmate makes
substantial progress in matters such as work and training. Id. Progress in
educational programs offered at DOC also nets an offender educational
earned time. See C.R.S. 17-22.5-405. The impact of good and earned
time depends upon whether the inmate is subject to a discretionary parole
scheme or a mandatory parole scheme. In Thiret v. Kautzky, 792 P.2d 801,
805 (Colo. 1990), this Court held that:
Upon accruing sufficient [good and earned time] credits to become
eligible for parole, persons fitting under [a discretionary parole
24
scheme] 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 [this category], merely
establish the date of parole eligibility. A person fitting under [a
mandatory parole scheme], however, must be paroled upon reaching
the parole date as determined by deducting vested good time and
earned time credits from the persons sentence.

See also, People v. Norton, 63 P.3d 339, 343 (Colo. 2003) (under a
mandatory parole scheme, the law mandated that offenders who had
acquired certain good time and earned time credits must be released on
parole); People v. Black, 915 P.2d 1257, 1258-59 (Colo. 1996) (under a
mandatory parole scheme, an inmate who has earned sufficient good time
and earned time credits towards completion of his sentence is entitled to be
released on parole and the Colorado State Parole Boardhas no discretion
to deny parole); id at 1262 (Lohr, J ., concurring in part and dissenting in
part) (Under mandatory parole, a prisoner must be paroled after serving the
sentence less any good time and earned time credits. Under discretionary
parole, a prisoner becomes eligible for parole at such time, but release on
parole is discretionary with the parole authorities throughout the term of the
sentence.); Bynum v. Kautzky, 784 P.2d 735, 739 (Colo. 1989) (under
mandatory parole scheme, good time and earned time provisions were only
intended to establish the mandatory date of release on parole. Thuswith
respect to parole, the good time and earned time credits vest only for the
25
purpose of determining parole eligibility, not for purposes of determining
whether reincarceration is possible once a former inmate has violated his
parole.).
Norton stated that the 1993 amendments to the parole statutes
reinstituted mandatory parole for many offenders who committed crimes on
or after J uly 1, 1993. Ankeney was therefore subject to a mandatory parole
scheme. As such, he has an absolute right to have DOC apply to his MRD
all of his good time, earned time and educational earned time.
G. Ankeney Was Not Credited With Any Good Time
Despite His Having Accumulated It In Violation Of 301.

Appellant writes 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.
17

17
It is unclear where Ankeney allegedly made this assertion as Appellant
cites to nothing in the record supporting this claim. Ankeney denies ever
arguing this.

(Brief, p. 8). This is simply not true. Ankeney maintains and has always
maintained that his PED must be set pursuant to 403, which made him
parole eligible after completeing fifty percent of his sentence less earned
time given pursuant to 405. Good time should have played absolutely no
role in determining Ankeneys PED despite DOCs affidavit that good time
26
was somehow used in the calculus. (Record pps. 55-56). DOC, in
calculating his PED erroneously used the words good time in cutting
fifteen days per month off his PED (fifty percent according to them). The
plain language of 403 never mentions good time and only applies 405
earned time. One of the central issues in this case is that the State cannot
point to a single day of good time which was applied to Ankeney during the
entire period of his incarceration despite his having accumulated fifteen days
per month during the entire period of his incarceration. Other than the bald
assertion by Appellant that good time was applied to Ankeneys PED which
in itself is a violation of 403, there is nothing in the record indicating that
he ever received any such credit. Ankeneys good time apparently
disappeared. The State will not be able in its Reply Brief to point to a day of
good time applied to Ankeney despite his having accumulated the maximum
possible number of days of good time credit. In the world of DOC, good
time is a nullity and simply disappears. It cannot by law be used for
calculating a PED nor was it used for calculating Ankeneys MRD. In
essence, DOC has de facto taken fifteen days per month away from Ankeney
simply by ignoring the good time statute.
The United States Supreme Court has held that once an inmate
acquires good time as Ankeney did, some due process must be invoked in
27
order to take it from that inmate. The Court has held that revocation of
good time does not comport with "the minimum requirements of procedural
due process," [citation omitted] unless the findings of the prison disciplinary
board are supported by some evidence in the record. Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The Tenth Circuit has long
followed this mandate by demanding some evidence in the record prior to a
prison official denying an inmate earned/good time. See e.g., Simon v.
Jones, 550 F. App'x 670 (10th Cir. 2014). The Appellants have de facto
revoked all of the good/educational earned time accrued by Ankeney by
simply ignoring it. The United States Supreme Court continued saying
the loss of such credits threatens his prospective freedom from
confinement by extending the length of imprisonment. Thus the inmate has a
strong interest in assuring that the loss of good time credits is not imposed
arbitrarily. [citation omitted]. Superintendent, Mass. Corr. Inst. 472 U.S. at
454 (1985).
DOC skipped officially crediting good time to Ankeney and jumping
through any hoops to withdraw it based upon inmate misconduct. The
statute is simply ignored. Good time disappears despite the absolute mandate
of the legislature that it shall be deducted from an inmates sentence.

28
H. DOC Failed To Use Discretion In Not Counting
Education Earned Time.

C.R.S. 17-22.5-302 (Education earned time statute) makes reference
to the good time statute stating that [i]n addition to the good time
authorized in section 17-22.5-301 earned time, not to exceed thirty days for
every six months of incarceration, may be deducted from the inmates
sentence (emphasis added). 301(1) however makes mandatory the
405 deduction for earned time with virtually the same language used in
301, the good time deduction. Why DOC deducts earned time but not good
time or educational earned time when the statutes are almost identical is
unclear.
I. No Rational Distinction Can Be Made For Applying
405 Earned Time To An MRD But Not 301 Good Time.

Appellants heroically attempt to explain why only 405 earned time
is taken off the back end of any offenders sentence but not good time or
educational earned time. (Brief pps. 21-24).
The first error made by Appellants is in citing to this Courts opinion
in Meyers v. Price, 842 P.2d 229 (Colo. 1992) as standing for the outdated
proposition that good time and earned time only apply to an inmates PED.
(Brief p. 21). That case was decided in 1992 prior to the reinstatement of
29
mandatory parole which occurred in 1993.
18
Appellants argument flies in the face of common sense. Earned time
while on parole simply means that a parolee who is engaged in work, study,
and programming generally, should be rewarded with a time cut from parole.
Good time, by its own terms, can only apply to following the rules and
regulations of the prison. One cannot logically obtain good time for
Indeed, Meyers pleaded guilty
in 1988. Id. at 230. That case dealt with a discretionary parole situation and
not a mandatory parole. Appellants go on to state that the legislature
amended C.R.S. 17-22.5-405(5) to make non-violent inmates who were on
parole, eligible for earned time credits while on parole. Appellants argue
that this is evidence that earned time must be given to a parolee who has
long ago passed his PED (as hes already on parole) therefore earned time
cannot only apply to the setting of a PED. (Brief, p. 22). It appears that the
argument made by Appellants is that because a parolee cannot obtain good
time while on parole, good time must only apply to that inmates PED as per
the Meyers decision. The argument goes that the legislature could have
included good time but chose not to therefore good time should not be used
in setting an MRD.

18
This is typical of the confusion in this area of law. Both federal and state
courts are very confused by the cases because in order to understand the
cases, one must also understand the ever-changing statutory landscape which
can nullify a case within days of its publication.
30
following any rules and regulations of society. When societys rules are
violated by a parolee, (also known as reoffending) reincarceration for a new
offense is the upshot.
Appellants argue that a legislative amendment in 2009, C.R.S. 17-
22.5-405(6), mandates that DOCs time computation office and the Parole
Board 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 some inmates. (Brief, pps. 23-24). Appellants
argue that this evinces an intent by the legislature to apply earned time to the
back end of an inmates sentence in setting an MRD. Because there is no
mention of good time, the legislature must have intended to exclude good
time from being a factor in setting an MRD. Again, good time is
automatically assumed to be accrued absent any discipline and earned time
requires by statute that someone be reviewing objective criteria of progress,
programs and the like, which takes more time than noting an absence of
discipline. In any event, this is far from a clear statement by the legislature
that earned time and good time should not be treated identically when
calculating an MRD.
31
J. The Parole Boards Discretion To Grant Or Deny Parole
Exists Only Between The Dates Of The PED And The
MRD.

Appellant erroneously states in its Opening Brief that Ankeney was
granted discretionary parole. (Brief, p. 4). This was not discretionary
parole. Ankeney hit his DOC-calculated MRD (two years later than it
should have been) when he was finally automatically paroled and the Parole
Board never voted to parole him. He was simply released by DOC to parole
when he hit DOCs erroneously calculated MRD.
19
Why Appellants believe
this was a discretionary parole is unclear. In fact, most inmates on parole
never achieve parole status through a vote of the Parole Board. Virtually all
parolees simply hit their MRD and are released to parole with no
discretionary actions by the Board involved.
20

19
Coincidentally that date was within days from when DOC was informed
by the Court of Appeals that Ankeney had passed his MRD.
Indeed, Ankeney served most
of the time he was supposed to have been on parole while incarcerated at
DOC because of DOCs failure to credit his good time or educational earned
time. That is why his second habeas petition was granted. Under the
correctly applied law in the Ankeney case, the Parole Board would have had
complete discretion to parole him between his PED of two-years-eight-
20
This is based solely upon anecdotal data. Undersigned counsel has
interviewed hundreds of current DOC prisoners in conjunction with this and
other cases.
32
months and his MRD of four years. The Board exercised its discretion and
denied him parole during that time period. All discretion vanished however
once Ankeney hit his MRD at the four year mark. Indeed, that is why DOC
refers to it a Mandatory Release Date.
A central argument repeatedly made by Appellants is that the current
law is a discretionary parole statute (Brief, pps. 13, 14, 18, 19, 20, 27, 29,
30). They argue that any parole decision for any inmate resides within the
sole discretion of the Parole Board. They completely ignore the fact that
when any inmate such as Ankeney hits his or her MRD, there is absolutely
no discretion whatsoever in the release decision. That inmate is placed on
parole regardless of the discretion of the Parole Board.
If, as Appellant argues, parole is completely within the discretion of
the Parole Board the only MRD for any inmate should be the entire term of
years imposed by the court at sentencing. Any MRD prior to the full
expiration of the incarceration portion of a sentence should be discretionary
with the Board if one follows Appellants logic. Obviously, this is not the
case and Appellants concede that 405 earned time at the very least sets an
MRD somewhere before the expiration of the incarceration part of the
sentence imposed by the court.
33
Basic misunderstandings and mathematical errors plague Appellants
analysis. Appellant continually decries the illogic in Ankeneys position,
arguing that good time and earned time may only be used to establish a PED
and not an MRD because [a]ny other interpretation would render the parole
statutes meaningless because an inmate would be already entitled to
discharge when he is eligible for discretionary parole. (Brief, p. 17). They
argue that [a]pplication of good time to an inmates discharge
21
As has already been demonstrated, this is simply mathematically
incorrect. Ankeneys PED as established by 403 and 405 would have
been at the two year, eight month mark. Had all good time, earned time and
educational earned time been applied to Ankeneys MRD, his MRD would
have been at the four year mark. The PED is moved backwards by earned
time as is the MRD. It is a mathematical impossibility for the PED to be the
same as the MRD. Keeping in mind that the only credit statutorily moving
the PED is 405 earned time, if Ankeney had not received any earned time
date
renders these statutes meaningless, because the offender is eligible for
release on the same date as he is eligible for discretionary parole. (Brief, p.
19).

21
Sloppy use of language has confused these issues. Presumably the use of
the words discharge date in the Appellants Brief refers to the MRD as
opposed to the statutory discharge date when an offender is finished with his
or her entire sentence including parole.
34
while incarcerated at DOC, under 403 he would have had his PED at the
four year mark, (no ten days a month credit for earned time) however he
would have lost those same ten days per month earned time off the back end
of his sentence and he would only have received credit for fifteen days per
month good time. Instead of achieving thirty days off the back end for his
thirty days served, he would only be receiving fifteen days off the back end.
He would thus still owe twenty-four months before achieving his MRD. At
no time would any inmates PED be the same as his or her MRD, contrary to
the assertion of the State.
Appellants argue that there is a significant distinction between the
mandatory parole statute in existence between J uly 1, 1979 and J uly 1,
1985 which mandated that every inmate must be released at some point from
incarceration to parole, and the post 1993 amendment which mandates that
every inmate must be released at some point from incarceration to parole.
(Brief p. 14). While indeed the statutes differ, the upshot is precisely the
same. Under both systems, the worst inmate at DOC who got no credit of
any kind for good time, earned time or educational earned time would still
have to face a mandatory period of parole upon leaving DOC. That was true
for inmates in the 1979-1986 analysis and it is true for inmates in the post-
1993 analysis. The State is correct in arguing that the Parole Board
35
maintains complete discretion for granting parole prior to the expiration of
the incarceration portion of his sentence however that discretion evaporates
upon any inmate hitting his or her MRD. Ankeney would still be required to
be paroled even assuming an abysmal record of behavior/work/education at
DOC. With no time off the back end for earned/good/educational earned
time, he would have to serve every day of his eight years assuming the
Parole Board exercised its discretion and refused to parole him early under
403. His MRD would be eight years and he would still have to serve a
three-year parole term. His SDD would be at the eleven-year mark when he
had completed every day of his incarceration and parole.
The distinction between the two mandatory parole schemes does not
make a difference in terms of the requirement that DOC credit good time,
earned time and educational earned time to an inmates MRD.
Apparently, DOC erroneously believed in Ankeneys case that the
403 parole eligibility statute is a like-kind substitution for good time. Section
403 however, is triggered by the passage of time served and 405 earned
time and has nothing whatsoever to do with calculating good time.
The case law becomes confusing when Appellants cite discretionary
parole cases which decades ago used different terminology. This Court has
referred to an offenders MRD which was the date of unconditional
36
release from any custody or supervision which today is referred to as an
offenders statutory discharge date (SDD). Similarly, in prior cases a PED
was the date that an offender was required to be released from custody and
placed on parole. This is what DOC now refers to as the MRD. The
possibility of early parole for offenders subject to a mandatory term or
parole under 403 did not exist when these cases were decided. In early
discretionary parole cases, good time under 301 was applied toward what
would now be called an MRD, but when those cases were decided was
known as the PED.
Case law has consistently applied good time and earned time in the
same way. Whether they apply to an MRD or a PED depends upon whether
an offender is subject to discretionary parole or mandatory parole. See,
Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). Today, mandatory parole
inmates have an opportunity for early parole under 403. See, C.R.S. 18-
1.3-401(1)(a)(V)(A). An offender subject to mandatory parole faces a
sentence of imprisonment, a period of parole followed by perhaps another
prison term above and beyond the original sentence. People v. Hall, 87 P.3d
210 (Colo. App. 2003).

37
II. The Court Below Correctly Concluded That Ankeney Should
Be Discharged From Parole Whether Or Not He Named The
Parole Board As A Party.

Standard of Review Agreed that the review is De novo
In its decision discharging Ankeney from parole, the court made the
following correct observation:
The attorney general raised a legitimate issue regarding the proper
parties respondent, noting that only the parole board has the authority
to release the petitioner from parole, and the parole board is not a
party to this case. After ascertaining that the same unit of the attorney
general's office represents both the department of corrections and the
parole board, the Court decided to order the petitioner's immediate
release from parole anyway. The Court cannot justify requiring the
petitioner to submit to parole supervision while the parole board is
substituted as a party defendant so that the same attorneys can make
the same arguments before the court. The petitioner has already been
required to serve 34 months of incarceration he should not have been
required to serve.
(Record page 251).

Had Appellants actually been concerned about this fact they should
have filed a motion to substitute the correct party long before the hearing
before the district court. The first time counsel for Ankeney heard this
argument was at the hearing. (Transcript p. 11, lines 4-6). The Court in
pointing out the futility of delay in order to name the Parole Board as a
party, and prolonging the illegal nature of Ankeneys parole also gave
counsel for the Parole Board (Mr. Quinn, who is also counsel for DOC)
leave to file a motion to reconsider. (Transcript, p. 18). Mr. Quinn declined
38
that invitation.
"Parole" is a condition of constrained liberty involving a "release from
institutional custody." 17-22.5-404(1), 6 C.R.S. (2002); People v. Luther,
58 P.3d 1013, 1017 (Colo. 2002). As the district court correctly concluded,
it would be a terrible waste of time and resources to reschedule a hearing,
and to keep Ankeney in a state of constrained liberty all for the purpose of
coming back to court with precisely the same lawyers making precisely the
same arguments with precisely the same result. As the federal court in
North Carolina noted:
While the Board of Trustees, as an agency or instrumentality of the
state, cannot itself be sued, it is clear that its members can be sued in
their official capacity for injunctive reliefIt would be a glorification
of form over substance to require the plaintiff to name the Board
members individually so as to elude the jurisdictional bar of the
Eleventh Amendment.

Kestler v. N.C. Local Governmental Emples. Ret. Sys., 808 F. Supp. 1220,
1224 (W.D.N.C. 1992).
CONCLUSION
For all of the foregoing reasons, the decision to grant habeas relief to
Mr. Ankeney for purposes of taking him off of parole was correct and the
judgment of the district court should be affirmed.
22

22
Appellants in their Conclusion ask this Court to reverse the Court of
Appeals in Ankeney v. Raemisch et. al.,12CA1930. The Appellants long ago

39
Respectfully submitted on this the 2
nd
day of September, 2014.
KILLMER, LANE & NEWMAN, LLP

/s/ David A. Lane
David A. Lane, Reg. No. 16422
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
dlane@kln-law.com


lost their right to ask this Court to reverse that case by failing to file any
appeal. This Court obviously can overrule that case in this separate action
but that case is not before this Court for purposes of a reversal.
40
CERTIFICATE OF SERVICE

This certificate certifies that I have duly served the within ANSWER
BRIEF on all parties herein via ICCES on this 2
nd
day of September, 2014 to
the following:

J ames W. Quinn
Ralph L. Carr Colorado J udicial Center
1300 Broadway
Denver, CO 80203
720-508-6610
james.quinn@state.co.us

/s/ Jamie Akard
J amie Akard


41
ADDENDUM
17-22.5-403. Parole eligibility
(1) Any person sentenced for a class 2, class 3, class 4, class
5, or class 6 felony, or a level 1, level 2, level 3, or level 4 drug
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. However, the date established by
this subsection (1) upon which any person shall be eligible for parole
may be extended by the executive director for misconduct during
incarceration. The executive director shall promulgate rules and
regulations concerning when and under what conditions any inmate's
parole eligibility date may be extended. Such rules and regulations
shall be promulgated in such a manner as to promote fairness and
consistency in the treatment of all inmates.

(2) (a) Notwithstanding subsection (1) of this section, any
person convicted and sentenced for second degree murder, first degree
assault, first degree kidnapping unless the first degree kidnapping is a
class 1 felony, first or second degree sexual assault, first degree arson,
first degree burglary, or aggravated robbery, committed on or after
J une 7, 1990, and before J uly 1, 2004, which person has previously
been convicted of a crime which would have been a crime of violence
as defined in section 18-1.3-406, C.R.S., shall be eligible for parole
after such person has served seventy-five percent of the sentence
imposed upon such person, less any time authorized for earned time
granted pursuant to section 17-22.5-405.
(b) The provisions of paragraph (a) of this subsection (2)
shall not apply to persons sentenced pursuant to part 10 of
article 1.3 of title 18, C.R.S.

(2.5) (a) Notwithstanding subsection (1) of this section, any
person convicted and sentenced for second degree murder, first degree
assault, first degree kidnapping unless the first degree kidnapping is a
class 1 felony, first degree arson, first degree burglary, or aggravated
robbery, committed on or after J uly 1, 2004, shall be eligible for
parole after such person has served seventy-five percent of the
sentence imposed upon such person, less any time authorized for
42
earned time granted pursuant to section 17-22.5-405.
(b) The provisions of paragraph (a) of this subsection
(2.5) shall only apply to:
(I) A person convicted and sentenced for a crime
listed in paragraph (a) of this subsection (2.5) that is a
class 2 or class 3 felony offense; or
(II) A person convicted and sentenced for a crime
listed in paragraph (a) of this subsection (2.5) that is a
class 4 or class 5 felony offense, which person has
previously been convicted of a crime of violence as
defined in section 18-1.3-406, C.R.S.

(3) Notwithstanding subsection (1) or (2) of this section, any
person convicted and sentenced for any crime enumerated in
subsection (2) of this section, committed on or after J une 7, 1990, and
before J uly 1, 2004, who has twice previously been convicted for a
crime which would have been a crime of violence as defined in
section 18-1.3-406, C.R.S., shall be eligible for parole after such
person has served seventy-five percent of the sentence served upon
such person, at which time such person shall be referred by the
department to the state board of parole which may place such person
on parole for a period of time which does not exceed the time
remaining on such person's original sentence. For offenses committed
on or after J uly 1, 1993, such person shall be placed on parole for the
period of time specified in section 18-1.3-401 (1) (a) (V), C.R.S.
Section 17-22.5-402 (2) shall not apply to any such offender.

(3.5) (a) Notwithstanding subsection (1) or (2.5) of this section,
any person convicted and sentenced for any crime enumerated in
subsection (2.5) of this section, committed on or after J uly 1, 2004,
who has previously been convicted for a crime which would have
been a crime of violence as defined in section 18-1.3-406, C.R.S.,
shall be eligible for parole after such person has served seventy-five
percent of the sentence served upon such person, at which time such
person shall be referred by the department to the state board of parole
which may place the person on parole for the period of time specified
in section 18-1.3-401 (1) (a) (V), C.R.S. Section 17-22.5-402 (2) shall
not apply to any such offender.
(b) The provisions of paragraph (a) of this subsection
(3.5) shall only apply to:
43
(I) A person convicted and sentenced for a crime
listed in paragraph (a) of subsection (2.5) of this section
that is a class 2 or class 3 felony offense; or
(II) A person convicted and sentenced for a crime
listed in paragraph (a) of subsection (2.5) of this section
that is a class 4 or class 5 felony offense, which person
has twice previously been convicted of a crime of
violence as defined in section 18-1.3-406, C.R.S.

(4) The governor may grant parole to an inmate to whom
subsection (2) or (3) of this section applies prior to such inmate's
parole eligibility date or discharge date if, in the governor's opinion,
extraordinary mitigating circumstances exist and such inmate's release
from institutional custody is compatible with the safety and welfare of
society.

(5) For any offender who is incarcerated for an offense
committed prior to J uly 1, 1993, upon application for parole, the state
board of parole, working in conjunction with the department and
using the guidelines established pursuant to section 17-22.5-404, shall
determine whether or not to grant parole and, if granted, the length of
the period of parole. The state board of parole may set the length of
the period of parole for any time period up to the date of final
discharge as determined in accordance with section 17-22.5-402. If an
application for parole is refused by the state board of parole, the state
board of parole shall reconsider within one year thereafter whether
such inmate should be granted parole. The state board of parole shall
continue such reconsideration each year thereafter until such inmate is
granted parole or until such inmate is discharged pursuant to law;
except that, if the inmate applying for parole was convicted of a class
1 or class 2 crime of violence, as defined in section 18-1.3-406,
C.R.S., any class 3 sexual offense described in part 4 of article 3 of
title 18, C.R.S., a habitual criminal offense as defined in section 18-
1.3-801 (2.5), C.R.S., or of any offense subject to the requirements of
section 18-1.3-904, C.R.S., the board need only reconsider granting
parole to such inmate once every three years, until the board grants
such inmate parole or until such inmate is discharged pursuant to law.

(6) For persons who are granted parole pursuant to subsection
(5) of this section, the division of adult parole shall provide parole
44
supervision and assistance in securing employment, housing, and such
other services as may effect the successful reintegration of such
offender into the community while recognizing the need for public
safety. The conditions for parole for any such offender under this
subsection (6) shall be established pursuant to section 17-22.5-404 by
the state board of parole prior to such offender's release from
incarceration. Upon a determination that the conditions of parole have
been violated in a parole revocation proceeding, the state board of
parole shall continue the parole in effect, modify the conditions of
parole if circumstances then shown to exist require such
modifications, which circumstances shall be set forth in writing, or
revoke the parole and order the return of the offender to a place of
confinement designated by the executive director for any period of
time up to the period remaining on such person's sentence until the
discharge date as determined by section 17-22.5-402 or one year,
whichever is longer. In computing the period of reincarceration for an
offender other than an offender sentenced for a nonviolent felony
offense, as defined in section 17-22.5-405 (5), the time between the
offender's release on parole and return to custody in Colorado for
revocation of such parole shall not be considered to be part of the term
of the sentence. The state board of parole may discharge an offender
granted parole under this section at any time during the term of parole
upon a determination that the offender has been sufficiently
rehabilitated and reintegrated into society and can no longer benefit
from parole supervision.

(7) (a) For any offender who is incarcerated for an offense
committed on or after J uly 1, 1993, upon application for parole, the
state board of parole, working in conjunction with the department and
using the guidelines established pursuant to section 17-22.5-404, shall
determine whether or not to grant parole. The state board of parole, if
it determines that placing an offender on parole is appropriate, shall
set the length of the period of parole at the mandatory period of parole
established in section 18-1.3-401 (1) (a) (V) or 18-1.3-401.5 (2) (a),
C.R.S., except as otherwise provided for specified offenses in section
17-2-201 (5) (a), (5) (a.5), and (5) (a.7). If an application for parole is
refused by the state board of parole, the state board of parole shall
reconsider within one year thereafter whether such inmate should be
granted parole. The state board of parole shall continue such
reconsideration each year thereafter until such inmate is granted
45
parole or until such inmate is discharged pursuant to law; except that,
if the inmate applying for parole was convicted of any sex offense, as
defined in section 18-1.3-1003 (5), C.R.S., a habitual criminal offense
as defined in section 18-1.3-801 (2.5), C.R.S., or of any offense
subject to the requirements of section 18-1.3-904, C.R.S., the board
need only reconsider granting parole to such inmate once every three
years, until the board grants such inmate parole or until such inmate is
discharged pursuant to law, or if the person applying for parole was
convicted of a class 2 felony that constitutes a crime of violence, as
defined in section 18-1.3-406, C.R.S., the board need only reconsider
granting parole to such person once every five years, until the board
grants such person parole or until such person is discharged pursuant
to law.
(b) Notwithstanding the provisions of paragraph (a) of
this subsection (7), for any sex offender, as defined in section
18-1.3-1003 (4), C.R.S., who is sentenced pursuant to the
provisions of part 10 of article 1.3 of title 18, C.R.S., for
commission of a sex offense committed on or after November
1,1998, the state board of parole shall determine whether or not
to grant parole as provided in section 18-1.3-1006, C.R.S. If the
state board of parole determines that placing a sex offender on
parole is appropriate, it shall set an indeterminate period of
parole as provided in section 18-1.3-1006, C.R.S. If the state
board of parole does not release a sex offender on parole, it
shall reconsider release on parole at least once every three years
until the state board of parole determines the sex offender meets
the criteria for parole specified in section 18-1.3-1006 (1),
C.R.S.

(8) (a) For persons who are granted parole pursuant to
paragraph (a) of subsection (7) of this section, the division of adult
parole shall provide parole supervision and assistance in securing
employment, housing, and such other services as may affect the
successful reintegration of such offender into the community while
recognizing the need for public safety. The conditions for parole for
any such offender under this paragraph (a) shall be established
pursuant to section 17-22.5-404 by the state board of parole prior to
such offender's release from incarceration. Upon a determination that
the conditions of parole have been violated in a parole revocation
proceeding, the state board of parole shall continue the parole in
46
effect, modify the conditions of parole if circumstances then shown to
exist require such modifications, which circumstances shall be set
forth in writing, or revoke the parole and order the return of the
offender to a place of confinement designated by the executive
director for any period of time up to the period remaining on such
person's mandatory period of parole established in section 18-1.3-401
(1) (a) (V) or 18-1.3-401.5 (2) (a), C.R.S. Any offender who has been
reincarcerated due to a parole revocation pursuant to this paragraph
(a) shall be eligible for parole at any time during such reincarceration.
The state board of parole may discharge an offender granted parole
under this section at any time during the term of parole upon a
determination that the offender has been sufficiently rehabilitated and
reintegrated into society and can no longer benefit from parole
supervision. In making any such determination, the state board of
parole shall make written findings as to why such offender is no
longer in need of parole supervision.
(b) For sex offenders, as defined in section 18-1.3-1003
(4), C.R.S., who are convicted of an offense committed on or
after November 1, 1998, and who are granted parole pursuant to
paragraph (b) of subsection (7) of this section, the division of
adult parole shall provide parole supervision and assistance in
securing employment, housing, and such other services as may
affect the successful reintegration of the sex offender into the
community while recognizing the need for public safety. The
conditions for parole for any sex offender shall be established
pursuant to section 18-1.3-1006, C.R.S., and section 17-22.5-
404 by the state board of parole prior to the sex offender's
release from incarceration. Upon a determination in a parole
revocation proceeding that the sex offender has violated the
conditions of parole, the state board of parole shall continue the
parole in effect, modify the conditions of parole if
circumstances then shown to exist require such modifications,
which circumstances shall be set forth in writing, or revoke the
parole and order the return of the sex offender to a place of
confinement designated by the executive director for any period
of time up to the remainder of the sex offender's natural life.
The revocation hearing shall be held and the state board of
parole shall make its determination as provided in section 18-
1.3-1010, C.R.S. Following reincarceration, the sex offender's
eligibility for parole shall be determined pursuant to section 18-
47
1.3-1006, C.R.S. The state board of parole may discharge a sex
offender from parole as provided in section 18-1.3-1006 (3),
C.R.S.

(9) The state board of parole shall consider the parole of a
person whose parole is revoked either for a technical violation or
based on a self-revocation at least once within one hundred eighty
days after the revocation if the person's release date is more than nine
months from the date of the person's revocation; except that a person
whose parole is revoked based on a technical violation that involved
the use of a weapon shall not be considered for parole for one year.


C.R.S. 17-22.5-403


48
17-22.5-405. Earned time - earned release time - achievement earned
time
(1) Earned time, not to exceed ten days for each month of
incarceration or parole, may be deducted from the inmate's
sentence upon a demonstration to the department by the inmate,
which is certified by the inmate's case manager or community parole
officer, that he or she has made consistent progress in the following
categories as required by the department of corrections:
(a) Work and training, including attendance,
promptness, performance, cooperation, care of materials, and
safety;
(b) Group living, including housekeeping, personal
hygiene, cooperation, social adjustment, and double bunking;
(c) Participation in counseling sessions and
involvement in self-help groups;
(d) Progress toward the goals and programs
established by the Colorado diagnostic program;
(e) For any inmates who have been paroled,
compliance with the conditions of parole release;
(f) The offender has not harassed the victim either
verbally or in writing;
(g) The inmate has made positive progress, in
accordance with performance standards established by the
department, in the literacy corrections program or the
correctional education program established pursuant to article
32 of this title.

(1.5) (a) Earned time, not to exceed twelve days for each
month of incarceration or parole, may be deducted from an inmate's
sentence if the inmate:
(I) Is serving a sentence for a class 4, class 5, or class 6
felony or level 3 or level 4 drug felony;
(II) Has not incurred a class I code of penal discipline
violation within the twenty-four months immediately preceding
the time of crediting or during his or her entire term of
incarceration if the term is less than twenty-four months or a
class II code of penal discipline violation within the twelve
months immediately preceding the time of crediting or during
his or her entire term of incarceration if the term is less than
49
twelve months;
(III) Is program-compliant; and
(IV) Was not convicted of, and has not previously been
convicted of, a felony crime described in section 18-3-303, 18-
3-305, 18-3-306, or 18-6-701, sections 18-7-402 to 18-7-407, or
section 18-12-102 or 18-12-109, C.R.S., or a felony crime listed
in section 24-4.1-302 (1), C.R.S.
(b) The earned time specified in paragraph (a) of
this subsection (1.5) may be deducted based upon a
demonstration to the department by the inmate, which is
certified by the inmate's case manager or community
parole officer, that he or she has made consistent
progress in the categories described in subsection (1) of
this section.
(c) Nothing in this subsection (1.5) shall preclude
an inmate from receiving earned time pursuant to
subsection (1) of this section if the inmate does not
qualify for earned time pursuant to this subsection (1.5).

(2) The department shall develop objective standards for
measuring consistent progress in the categories listed in subsection (1)
of this section. Such standards shall be applied in all evaluations of
inmates for the earned time authorized in this section.

(3) For each inmate sentenced to the custody of the department,
or for each parolee, the department shall review the performance
record of the inmate or parolee and may grant, withhold, withdraw, or
restore, consistent with the provisions of this section, an earned time
deduction from the sentence imposed. Such review shall be conducted
annually while such person is incarcerated and semiannually while
such person is on parole and shall vest upon being granted. However,
any earned time granted to a parolee shall vest upon completion of
any semiannual review unless an administrative hearing within the
department determines that such parolee engaged in criminal activity
during the time period for which such earned time was granted, in
which case the earned time granted during such period may be
withdrawn. In addition to any other sanctions, the executive director
may refer to the district attorney all cases where the offender tests
positive for the presence of drugs.

50
(3.5) In addition to the earned time deducted pursuant to
subsection (1) of this section, an inmate working at a disaster site
pursuant to section 17-24-124 shall be entitled to additional earned
time in the amount of one day of earned time for every day spent at a
disaster site.

(4) Notwithstanding any other provision of this section, earned
time may not reduce the sentence of an inmate as defined in section
17-22.5-402 (1) by a period of time that is more than thirty percent of
the sentence. This subsection (4) shall not apply to subsection (6) or
subsection (9) of this section.

(5) (a) Notwithstanding subsections (1), (2), and (3) of this
section, an offender who is sentenced and paroled for a felony offense
other than a nonviolent felony committed on or after J uly 1, 1993,
shall not be eligible to receive any earned time while the offender is
on parole. An offender who is sentenced and paroled for a nonviolent
felony offense committed on or after J uly 1, 1993, shall be eligible to
receive any earned time while the offender is on parole.
(a.5) Notwithstanding the provisions of paragraph (a) of
this subsection (5), an offender who is sentenced for a felony
committed on or after J uly 1, 1993, and paroled on or after
J anuary 1, 2009, shall be eligible to receive any earned time
while on parole or after reparole following a parole revocation.
(b) As used in this subsection (5), unless the context
otherwise requires, a "nonviolent felony offense" means a
felony offense other than a crime of violence as defined in
section 18-1.3-406 (2), C.R.S., any of the felony offenses set
forth in section 18-3-104, 18-4-203, or 18-4-301, C.R.S., or any
felony offense committed against a child as set forth in articles
3, 6, and 7 of title 18, C.R.S.

(6) Earned release time shall be scheduled by the state board of
parole and the time computation unit in the department of corrections
for inmates convicted of class 4 and class 5 felonies or level 3 drug
felonies up to sixty days prior to the mandatory release date and for
inmates convicted of class 6 felonies or level 4 drug felonies up to
thirty days prior to the mandatory release date for inmates who meet
the following criteria:
(a) The inmate has not incurred a class I code of penal
51
discipline violation within the twenty-four months immediately
preceding the time of crediting or during his or her entire term
of incarceration if the term is less than twenty-four months or a
class II code of penal discipline violation within the twelve
months immediately preceding the time of crediting or during
his or her entire term of incarceration if the term is less than
twelve months;
(b) The inmate is program-compliant; and
(c) The inmate was not convicted of, and has not
previously been convicted of, a felony crime described in
section 18-3-303, 18-3-305, 18-3-306, or 18-6-701, sections 18-
7-402 to 18-7-407, or section 18-12-102 or 18-12-109, C.R.S.,
or a felony crime listed in section 24-4.1-302 (1), C.R.S.

(7) Beginning in the fiscal year 2012-13, the general assembly
may appropriate the savings generated by subsections (1.5) and (6) of
this section to recidivism-reduction programs.

(8) Notwithstanding any provision of this section to the
contrary, after his or her first ninety days in administrative
segregation, a state inmate in administrative segregation shall be
eligible to receive earned time if he or she meets the criteria required
by this section or any modified criteria developed by the department
to allow a state inmate to receive the maximum amount of earned time
allowable for good behavior and participation in any programs
available to the state inmate in administrative segregation.

(9) (a) Notwithstanding any provision of this section to the
contrary, in addition to the earned time authorized in this section, an
offender who successfully completes a milestone or phase of an
educational, vocational, therapeutic, or reentry program, or who
demonstrates exceptional conduct that promotes the safety of
correctional staff, volunteers, contractors, or other persons under the
supervision of the department of corrections, may be awarded as
many as sixty days of achievement earned time per program milestone
or phase or per instance of exceptional conduct, at the discretion of
the executive director; except that an offender shall not be awarded
more than one hundred twenty days of achievement earned time
pursuant to this subsection (9).
(b) As used in this section, unless the context otherwise
52
requires, "exceptional conduct" includes, but is not limited to:
(I) Saving or attempting to save the life of another
person;
(II) Aiding in the prevention of serious bodily
injury or loss of life;
(III) Providing significant assistance in the
prevention of a major facility disruption;
(IV) Providing significant assistance in the
solving of a cold case, as defined in section 24-4.1-302
(1.2), C.R.S.;
(V) Acting to prevent an escape; or
(VI) Providing direct assistance in a documented
facility or community emergency.



C.R.S. 17-22.5-405


53
17-22.5-301. Good time
(1) Each person sentenced for a crime committed on or
after July 1, 1979, but before July 1, 1981, whose conduct
indicates that he has substantially observed all of the rules and
regulations of the institution or facility in which he has been
confined and has faithfully performed the duties assigned to him
shall be entitled to a good time deduction of fifteen days a month
from his sentence. The good time authorized by this section shall vest
quarterly and may not be withdrawn once it has vested. No more than
forty-five days of good time may be withheld by the department in
any three-month period of sentence.

(2) Each person sentenced for a crime committed on or after
J uly 1, 1981, but before J uly 1, 1985, shall be subject to all the
provisions of this part 3; except that the good time authorized by this
section shall vest semiannually and no more than ninety days of good
time may be withheld by the department in any six-month period of
sentence.

(3) Each person sentenced for a crime committed on or
after July 1, 1985, shall be subject to all the provisions of this part
3; except that the good time authorized by this section shall not
vest and may be withheld or deducted by the department.

(4) Nothing in this section shall be so construed as to prevent
the department from withholding good time earnable in subsequent
periods of sentence, but not yet earned, for conduct occurring in a
given period of sentence.


C.R.S. 17-22.5-301


54
17-22.5-302. Earned time
(1) In addition to the good time authorized in section 17-
22.5-301, earned time, not to exceed thirty days for every six
months of incarceration, may be deducted from the inmate's
sentence upon a demonstration to the department by the inmate
that he has made substantial and consistent progress in each of
the following categories:
(a) Work and training, including attendance,
promptness, performance, cooperation, care of materials, and
safety;
(b) Group living, including housekeeping, personal
hygiene, cooperation, social adjustment, and double bunking;
(c) Participation in counseling sessions and
involvement in self-help groups;
(d) Progress toward the goals and programs
established by the Colorado diagnostic program.

(1.3) Notwithstanding the provisions of subsection (1) of this
section to the contrary, after his or her first ninety days in
administrative segregation, a state inmate in administrative
segregation shall be eligible to receive earned time if he or she meets
the criteria required by this section or any modified criteria developed
by the department to allow a state inmate to receive the maximum
amount of earned time allowable for good behavior and participation
in any programs available to the state inmate in administrative
segregation.

(1.5) (a) In addition to the thirty days of earned time
authorized in subsection (1) of this section, an inmate who makes
positive progress, in accordance with performance standards,
goals, and objectives established by the department, in the
correctional education program established pursuant to section
17-32-105, shall receive earned time pursuant to section 17-22.5-
405; except that, if, upon review of the inmate's performance record,
the inmate has failed to satisfactorily perform in the literacy
corrections or correctional education program, any earned time
received pursuant to this paragraph (a) may be withdrawn as provided
in subsection (4) of this section. For purposes of this paragraph (a),
"positive progress", at a minimum, means that the person is attentive,
55
responsive, and cooperative during the course of instruction and
satisfactorily completes required work assignments equivalent to the
courses and hours necessary for advancement at a rate of one grade
level per calendar year in the school district where such inmate was
last enrolled.
(b) Repealed.

(2) The department shall develop objective standards for
measuring substantial and consistent progress in the categories listed
in subsection (1) of this section. Such standards shall be applied in all
evaluations of inmates for the earned time authorized in this section.

(3) For each inmate sentenced for a crime committed on or
after J uly 1, 1979, but before J uly 1, 1985, the department shall
review the performance record of the inmate and shall grant,
consistent with the provisions of this section, an earned time
deduction from the sentence imposed. Such review shall be conducted
at least annually; except that, in the case of an inmate who has one
year or less of his sentence remaining to be served, the review shall be
conducted at least semiannually. The earned time deduction
authorized by this section shall vest upon being granted and may not
be withdrawn once it is granted.

(4) For each inmate sentenced for a crime committed on or
after J uly 1, 1985, the department shall review the performance record
of the inmate and may grant, withhold, withdraw, or restore,
consistent with the provisions of this section, an earned time
deduction from the sentence imposed. Such review shall be conducted
as specified in subsection (3) of this section; except that the earned
time deduction authorized by this subsection (4) shall not vest upon
being granted and may be withdrawn once it is granted.

(5) For each inmate sentenced for a crime committed on or
after J uly 1, 1987, the department shall not credit such inmate with
more than one-half of his allowable earned time for any six-month
period or portion thereof unless such inmate was employed or was
participating in institutional training or treatment programs provided
by the department or was participating in some combination of such
employment, training, or treatment programs. This subsection (5)
shall not apply to those inmates excused from such employment or
56
programs for medical reasons.

C.R.S. 17-22.5-302


57
17-22.5-402. Discharge from custody
(1) No inmate shall be discharged from the department until he
has remained the full term for which he was sentenced, to be
computed on and after the date upon which the sentence becomes
effective and excluding any time the inmate may have been at large by
reason of escape therefrom, unless he is pardoned or otherwise
released by legal authority.
(2) Notwithstanding subsection (1) of this section, the full term
for which an inmate is sentenced shall be reduced by any earned
release time and earned time granted pursuant to section 17-22.5-405,
except as provided in section 17-22.5-403 (3) and (3.5).
(3) This part 4 shall not apply to any offender to whom section
17-22.5-104 (2) (a), (2) (b), (2) (c), (2) (d) (I), (2) (d) (II), or (2) (d)
(III) applies.


C.R.S. 17-22.5-402