Colorado § 17-22.5-303 - Parole.

§ 17-22.5-303. Parole.

(1) As to any person sentenced for a class 2, class 3, class 4, or class 5 felony committed on or after July 1, 1979, but before July 1, 1981, the division of adult parole shall provide a one-year period of parole 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; except that the state board of parole may discharge an offender at any time during the year upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision. The conditions of parole for any such person shall be established by the state board of parole prior to his release from incarceration. Upon a determination that the conditions of parole have been violated in any 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, or revoke the parole and order the return of the offender to the institution in which he was originally received for a period of not more than six months. For second and subsequent revocations of parole, the offender shall be reincarcerated; but in no event shall any such person spend more than one year under parole supervision and reincarceration as provided in this section. The good time deduction authorized by section 17-22.5-301 shall apply to periods of reincarceration provided for in this section.

(2) As to any person sentenced for a class 2, class 3, class 4, or class 5 felony committed on or after July 1, 1981, and before July 1, 1984, the division of adult parole shall provide a one-year period of parole 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; except that the state board of parole may discharge an offender at any time during the year upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision. The conditions of parole for any such person shall be subject to section 17-2-201 (5)(b) and (5)(c) prior to his or her release from incarceration; but in no event shall any such person whose initial parole has not been revoked spend more than one year under parole supervision, as provided in this section. Upon a determination that the conditions of parole have been violated in any such 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, or revoke the parole and order the return of the offender to the institution in which he or she was originally received for a period of not more than two years; but in no event shall any period of reincarceration, subsequent term of parole, and sentence actually served exceed the sentence imposed pursuant to section 18-1.3-401, C.R.S. The good time deduction authorized by section 17-22.5-301 shall apply to periods of reincarceration provided for in this section.

(3) The state board of parole, working in conjunction with the department, shall adopt risk assessment guidelines, based upon risk of violence to the general population, to be utilized for determining whether any person sentenced pursuant to the provisions of section 18-1.3-401, C.R.S., for committing a class 2, class 3, class 4, or class 5 felony committed on or after July 1, 1984, but before July 1, 1985, may be suitable for release on his or her parole eligibility date or shall be subject to extended parole of up to three years. Such guidelines shall include provisions which take into consideration the progress toward rehabilitation made by the individual as well as the necessity of guarding the welfare of the community.

(4) As to any person sentenced for a class 2, class 3, class 4, or class 5 felony committed on or after July 1, 1984, but before July 1, 1985, the division of adult parole shall either release an offender on his or her parole eligibility date, pursuant to the determination made by the state board of parole, or shall provide up to three years of parole for any offender who is determined by the state board of parole to present a high risk to the general population upon release from incarceration. For persons who are provided parole, the division of adult parole shall provide a period of up to three years of parole 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 (4) shall be established pursuant to section 17-2-201 (5)(b) and (5)(c) by the state board of parole prior to his or her 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, or revoke the parole and order the return of the offender to the institution in which he or she was originally received for a period of not more than five years. In no event shall any period of reincarceration, subsequent term of parole, and sentence actually served exceed the sentence imposed pursuant to section 18-1.3-401, C.R.S. 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. The good time deduction authorized by section 17-22.5-301 shall apply to periods of reincarceration provided for in this section.

(5) Pursuant to section 17-2-201 (9)(a), an interview of an inmate who applies for parole, who was sentenced for an offense committed on or after July 1, 1979, may be conducted by one member of the parole board.

(6) Any person sentenced for a class 2, class 3, class 4, class 5, or class 6 felony committed on or after July 1, 1985, shall be eligible for parole after such person has served the sentence imposed less any time authorized for good time earned pursuant to section 17-22.5-301 and for earned time pursuant to section 17-22.5-302. Upon an 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, which may be for a period of up to five years. If an application for parole is refused by the state board of parole, the state board shall reconsider within one year thereafter the granting of parole to such person and shall continue the reconsideration each year thereafter until such person is granted parole or until such person is discharged pursuant to law; except that, if the person applying for parole was convicted of 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 person once every three years, until the board grants such person parole or until such person is discharged pursuant to law, or if the person applying for parole was convicted of a class 1 or 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.

(7) For persons who are granted parole pursuant to subsection (6) of this section, the division of adult parole shall provide a period of up to five years of parole 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 (7) 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 a period of not more than five years. 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 any part of the term of the sentence. In no event shall any period of reincarceration and sentence actually served exceed the sentence imposed pursuant to section 18-1.3-401, C.R.S. 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.

(8) 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.

Source: L. 84: Entire article R&RE, p. 521, § 1, effective July 1. L. 85: (3) and (4) amended and (6) and (7) added, p. 648, § 4, effective July 1; (5) added, p. 641, § 10, effective July 1. L. 87: (7) amended, p. 654, § 11, effective July 1. L. 90: (6) amended, p. 924, § 6, effective March 27. L. 92: (6) and (7) amended, p. 2173, § 24, effective June 2. L. 94: (6) amended, p. 2597, § 6, effective June 3. L. 95: (7) amended, p. 877, § 12, effective May 24. L. 2000: (1), (2), (4), and (7) amended, p. 853, § 62, effective May 24. L. 2002: (2), (3), (4), (6), and (7) amended, p. 1502, § 163, effective October 1. L. 2003: (6) amended, p. 812, § 1, effective July 1; (8) added, p. 2676, § 2, effective July 1. L. 2008: (7) amended, p. 1756, § 4, effective July 1.

Editor's note: This section is similar to former § 17-22.5-103 as it existed prior to 1984.

Cross references: (1) For parole revocation proceedings, see §§ 17-2-103 and 17-2-201; for the right to attend parole hearings, see § 17-2-214.

(2) For the legislative declaration contained in the 2002 act amending subsections (2), (3), (4), (6), and (7), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

It is not a violation of the ex post facto clause found in article II section 11 of the Colorado Constitution to apply the amendment of this section which requires that parole time not be credited upon a second parole violation to a defendant who violates parole after the effective date of the amendment. Gasper v. Gunter, 851 P.2d 912 (Colo. 1993); People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998).

1994 amendments to subsection (6) create only a speculative and attenuated risk of producing the prohibited effect of increasing the actual punishment for the covered crimes. These speculative effects are insufficient to establish a violation of the ex post facto prohibition. Funari v. Zavaras, 914 P.2d 508 (Colo. App. 1996).

Trial courts do not have the authority to impose a period of parole as part of a sentence. Only the parole board has the authority to determine whether and for what period parole is appropriate. People v. Mendez, 897 P.2d 868 (Colo. App. 1995).

A defendant is not legally entitled to good time credit, even though he or she may become eligible for such credit. People v. McCreadie, 938 P.2d 528 (Colo. 1997).

For felonies committed on or after July 1, 1985, good time and earned time credits are within discretionary authority of the department of corrections. Since the department of corrections may withdraw good time and earned time credits, an inmate's maximum control date, as initially calculated by the department of corrections, is not necessarily the date upon which he is entitled to unconditional release. Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989).

Only purpose of accumulation of good time credits is for determining parole eligibility date of inmates and such credits do not constitute service of sentence. People v. Swepston, 822 P.2d 510 (Colo. App. 1991); Myers v. Price, 842 P.2d 229 (Colo. 1992).

Parole violator reincarcerated for the lesser of two years or the remainder of sentence originally imposed. Subsection (2) provides that a parole violator may be returned to the institution in which he was originally received for a period of not more than two years, but in no event may the reincarceration and the subsequent term of parole and the sentence actually served exceed the sentence originally imposed. Thus, the parole board's imposition of a two-year term of reincarceration was improper. People v. Leedom, 781 P.2d 173 (Colo. App. 1989).

For purposes of a parole revocation, the term "sentence already served" in subsection (2) includes all previous periods of incarceration plus all previous periods of release on parole. People v. Browning, 809 P.2d 1086 (Colo. App. 1990).

Effect of parole violation on discretion to impose sentence to be served concurrently or consecutively. Even though a parolee could be reincarcerated after parole revocation for a maximum period of only six months, for the purposes of sentencing for a subsequent offense committed while on parole, the parolee was reincarcerated for the original offense. Therefore, the court sentencing for the subsequent offense had the discretion to impose the sentence to run consecutively to the period of reincarceration. People v. Lucero, 772 P.2d 58 (Colo. 1989).

Subsection (2) of this section and §§ 16-11-310 (now repealed), 17-22.5-301 (2), and 17-22.5-302 (3) do not preclude the reincarceration of a person for violating his parole even though his time served, together with his good time and earned time credits accrued, equal or exceed the length of the sentence originally imposed. Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989); Williamson v. Jordan, 797 P.2d 744 (Colo. 1990); Jones v. Martinez, 799 P.2d 385 (Colo. 1990).

Although the legislature revised and relocated the good time, earned time, and parole provisions originally included § 16-11-310 (now repealed), eventually moving them to their present location in the statutes at §§ 17-22.5-301 to 17-22.5-303, there is nothing in those revisions which would indicate that § 16-11-310 was meant to render inoperative the provision in this section allowing reincarceration for a parole violation. Such an interpretation is unjustified since it would severely undermine the ability of the parole system to effect the successful reintegration of former inmates into the community while recognizing the need for public safety. Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989).

Plain and clear language of this section requires that a parole violator not be reincarcerated for a period in excess of the balance of time to be served on such person's original sentence and that good time credits acquired during reincarceration be applied in a manner that will not so extend the balance of such person's original sentence. Anderson v. Kautzky, 786 P.2d 1082 (Colo. 1989).

Credits may not be carried forward. Good time and earned time credits received during original period of incarceration do not apply to period of reincarceration. Williamson v. Jordan, 797 P.2d 744 (Colo. 1990); Jones v. Martinez, 799 P.2d 385 (Colo. 1990).

Good time and earned time credits cannot be used to diminish defendant's sentence and accelerate release date. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992) (decided under section as it existed prior to its repeal in 1988).

It was foreseeable that § 16-11-310 would not be construed in such manner as to defeat the purpose or eliminate the requirement of parole. The possibility of reincarceration for violating conditions of parole necessarily rejects the concept of an incarcerated person meriting diminution of sentence by credits for good behavior prior to being released on a conditional basis. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992) (decided under section as it existed prior to its repeal in 1988); Fultz v. Embry, 158 F.3d 1101 (10th Cir. 1998).

Inmate who was eligible for mandatory parole under the longest of three concurrent sentences imposed upon him was entitled to be released on parole. Vaughn v. Gunter, 820 P.2d 659 (Colo. 1991).

Parole board has authority to impose parole on inmates who committed offenses between July 1, 1984, and July 1, 1985, pursuant to subsection (4) regardless of whether sentencing court imposed illegal sentence by imposing period of parole. People v. Swepston, 822 P.2d 510 (Colo. App. 1991).

In determining a defendant's parole date where consecutive sentences have been imposed and both the mandatory and discretionary parole statutes apply, the court should construe the consecutive sentences as one continuous sentence. The defendant's right to mandatory parole under the first conviction is nullified by his two subsequent discretionary parole convictions. Spoto v. Colo. State Dept. of Corr., 883 P.2d 11 (Colo. 1994); People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998); Badger v. Suthers, 985 P.2d 1042 (Colo. 1999).

Department of corrections acted properly when it combined all of defendant's sentences, treating them as a continuous sentence, before the applicable parole date was determined. People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998).

When a defendant is paroled under this section or under § 17-22.5-403, he must be reincarcerated for a parole violation under the same statute. People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998).