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    Colorado Criminal Law – Calculating the Felony Prison Sentence

    The Complex Calculations in Actual Time Served in Colorado Criminal Cases

    Colorado is not one of the states that has adopted so called truth in sentencing laws. The sentence the judge imposes at a sentencing hearing.

    How Much Time Will I Do? Should I Take the Plea Agreement Offer?

    In deciding whether to accept a plea agreement – clients of my law firm often ask how much actual time they will serve. The answer requires a close look at the complex interaction of several Colorado laws that involve the interpretation of such terms as “good time” “earned time” and “time served.”

    Indeterminate – Determinate and Mixed-Indeterminate Sentences in Colorado

    States employ either indeterminate or determinate sentencing, or some combination of the two approaches. Indeterminate sentences are of unknown duration and come in various forms. A true indeterminate sentence would consist of a range of punishment such as two to twenty years. An indeterminate sentence could also consist of a definite sentence that constitutes the maximum term of imprisonment but which may be reduced by discretionary awards of incentive good-time deductions or parole.

    The indeterminate sentencing model springs from the rehabilitative theory of punishment; prisoners are released when they are suitably rehabilitated.

    Normally in jurisdictions utilizing indeterminate sentencing, a parole board decides the actual release date. True determinate sentences, on the other hand, do not involve parole and are based on incapacitation and specific deterrence goals.

    Colorado is NOT a Truth in Sentencing State

    Under a truth-in-sentencing type of determinate model, offenders are sentenced to a definite term of imprisonment, and their release date is determined by the percentage of the sentence that the individual must serve. Thus, instead of a discretionary release decision, under truth in sentencing the law establishes the release date. For instance, in the federal system, a prisoner must  serve 85% of the sentence imposed; while in Georgia, offenders serve 100% of the sentence for six of Georgia’s “seven deadly sins” crimes. No state has a truth-in-sentencing scheme under which all types of offenders serve 100% of their sentence.

    In Colorado, since the passage of the Colorado Sex Offender Lifetime Supervision Act of 1998, essentially has two kinds of sentencing. A mixed indeterminate model is used for all felony crimes except Colorado Sex Crimes felony which are the most serious of all felonies – Class 1, 2, 3, and 4 Sex Crimes which are true indeterminate “life sentences.” (see the webpages on this site discussing Colorado Sex Crimes)

    Under the indeterminate sentencing model, no one—including the sentencing judge—can accurately calculate a release date for an individual at the time of sentencing simply because the release decision involves the exercise of discretion by a state agency. Adoption of a truth-in-sentencing paradigm at least in part—scraps the indeterminate model and eliminates the discretionary release of incarcerated offenders. The release date is established by the length of the sentence imposed by the sentencing judge and can be readily calculated at the time of sentencing.

    The Calculation of Actual Time Served for Non Sex Crime Felonies in Colorado

    In calculating the actual time served in a felony case – the sum of many different items are weighed over time – these factors come together over time to lead inexorably to the days that the sentenced person finally serves… these include such things as previous criminal activities, eligibility for earned time for good behavior, correctional programs earned time, credit for time served, or community corrections eligibility.

    *Credit is given to my friend and colleague Denver lawyer Phil Cherner for permitting me to summarize excerpt portions of excellent recent article on this subject.

    Colorado Felony Prison Time Computations

    Inmates may not be released on parole until they reach their parole eligibility date (Parole Eligibility Date). The parole release decision is only one uncertainty when estimating in advance how much time an inmate will actually serve; there also are uncertainties and complications in the process of calculating an inmate’s Parole Eligibility Date.

    Parole Eligibility Date Release Consideration

    The general rule of time computation is that a felony defendant will be eligible to meet the parole board for parole release consideration after serving 50 percent of the sentence, less earned time (not to exceed 30 percent of the sentence) and pre-sentence confinement credit.

    Pre-sentence confinement credit is the amount of time the defendant spent in custody awaiting sentencing. It includes time spent in jail and in residential community corrections before the  prison sentence was imposed. This rule of time computation is a general rule because there are a number of crimes where this no longer applies.

    Automatic deductions

    Lawyers and judges may sometimes speak of good time however, this was abolished approximately twenty years ago and replaced by the automatic 50 percent deduction.

    This means that 50 percent time off for good behavior is awarded to most inmates who enter the Department of Corrections (DOC). For example, an offender sentenced on January 1, 2009 to eight years for the class 3 felony of burglary would receive a four-year reduction at the time the sentence was imposed. The Parole Eligibility Date, without any additional deductions, would be January 1, 2013.

    Pre-sentence credits and earned time

    Additional deductions come from presentence confinement credits and earned time. All  felony defendants are entitled to credit against their sentences for any time spent in custody before the sentences were imposed.

    In the burglary example above, if the inmate was in custody for seven months prior to sentencing, the Parole Eligibility Date would be June 1, 2012.

    Earned time of up to ten days for every month served may be awarded.

    Unlike pre-sentence credits that apply to every defendant, earned time is discretionary. It can be earned through participation in one of seven categories of Department of Corrections programming:   work;

    • training;
    • group living;
    • progress toward goals;
    • compliance with parole;
    • no harassment of victim; and
    • progress in literacy or education.

    A common reason for refusal to award earned time is failure to participate in a sex offender treatment program. Earned time also can be taken away after it is awarded for general disciplinary reasons. It may not be awarded for program participation during pre-sentence

    Confinement

    The Department of Corrections has devised a computer program for figuring out earned time, which can require detailed calculation. The general rule is that if an inmate earns and keeps the maximum amount of earned time, after the 50 percent automatic deduction, the Parole Eligibility Date will be at approximately 37.5 percent of the imposed sentence, less presentence confinement credit.

    Sample Calculation for the Colorado Felony Burglary Sentence of Eight Years

    Consider the defendant in the burglary example, who received an eight-year sentence. After subtracting the 50 percent automatic deduction, forty eight months to parole  eligibility remain.

    After subtracting an additional seven months for presentence confinement credit, forty-one months are left.  Subtracting the maximum allowable earned time of ten days per month results in approximately ten months of earned time credit.

    This leaves thirty-one months to be served from the date of sentencing ( January 1, 2009).

    So, if the burglar earned all the earned time he could earn, and did not lose any of it for disciplinary reasons, he would be parole-eligible on or about August 1, 2011.

    Mandatory Release Date

    Not all eligible inmates receive early parole release. The maximum time inmates can serve assuming they are denied parole at the Parole Eligibility Date and at every parole hearing thereafter is the full length of the imposed sentence, less any pre-sentence confinement credits and earned time.

    This is called the mandatory release date (MRD). Inmates might be released as early as the Parole Eligibility Date or as late as the Mandatory Release Date (if they are not paroled earlier and never earn any time).

    For example, on an eight-year sentence, there is an uncertainty of five and one-half years.

    Exceptions

    There are two major categories of exceptions to the computational rules: one for violent offenders and one for sex offenders. A discussion of each follows.

    Violent offenders. If the current conviction is a crime of violence, the automatic 50 percent deduction for good behavior is reduced to 25 percent. The Parole Eligibility Date for violent crimes is 75 percent of the imposed sentence (commonly known as the 75 percent rule).

    If such offenders have no prior convictions for crimes of violence, they may receive credits for earned time; however, those convicted of a crime of violence who also have a prior conviction for a crime of violence will serve 75 percent with no earned time deduction before they may be paroled.12

    A person convicted of armed robbery and sentenced to the minimum of ten years (assuming there are no prior violent convictions) will have to serve seven and one-half years, less pre-sentence and earned time credits, before parole eligibility. If there are prior violent crime convictions, time served willbe seven and one-half years less only pre-sentence credits.

    Sex offenders Different rules apply to sex offenders. In 1998, Colorado enacted a lifetime sex offender sentencing scheme called the Colorado Sex Offender Lifetime Supervision Act (Act).

    The Act covers a wide variety of offenses, but generally provides for a potential life sentence for class 4 and more serious sex felonies. Individuals sentenced under the Act receive an indeterminate life sentence. The maximum must be life (in prison or on probation). If the court imposes a prison sentence, it also imposes a minimum period, scaled to the offense of conviction; this minimum determines the Parole Eligibility Date. The minimum will be no less than the minimum presumptive sentence for the felony class of crime and no more than twice the presumptive maximum.

    For example, sexual assault on a child, a class 4 felony, carries a prison sentence of two years to life, because the presumptive minimum for a class 4 felony is two years.

    The sentence could be as long as twelve years to life, because the presumptive maximum for a class 4 felony is six years. Although earned time discounts are allowed for sex offenders, there is neither the automatic 50 percent deduction that is available for non-sex felonies, nor the 25 percent deduction available for crimes of violence.

    Sex offenders will serve 100 percent of their imposed minimum sentence, less pre-sentence credits and earned time.

    A sex offender serving a sentence of two years to life would become eligible for parole after two years, less pre-sentence and earned time deductions. There is no Mandatory Release Date, and because the sentence is indeterminate and release is entirely at the discretion of the parole board, offenders could serve life sentences. When there are differing computational rules for different concurrent sentences, the case law applies the computation rules from the governing or longest sentence.

    Release on Parole for ALL Other Felonies

    The parole board decides whether inmates who have reached their Parole Eligibility Date should be granted parole before their Mandatory Release Date. Generally, inmates serve a period of parole supervision that is linked to the severity of the offense. An offender who is rejected may re – apply for parole after a specified length of time (referred to as the setback). The setback can be as short as six months and as long as five years.

    However, eligibility for parole does not equate to release on parole, and only a fraction of inmates are released at their Parole Eligibility Date.

    All class 3 felonies carry a mandatory parole period of five years. If there is a violation of the terms and conditions, parole could be revoked and the parolee could be returned to prison to serve the balance of the parole period (not the balance of the underlying sentence).

    If a class 3 felony burglar earned no time credits, was paroled on the Mandatory Release Date, and parole was revoked the same day, the offender could end up serving a full thirteen years on an eight-year sentence.

    Statistics on Actual Time Served

    The uncertainties in parole decisions and earned time can be understood by looking at sentencing and release statistics. There are a few ways to gather sentencing and release data.

    Average length of stay

    One way is to review a group of offenders who have just been released and compute how long they have served. This period of time is determined by legislative dictates (statutes defining the lawful sentence), judicial sentencing patterns, and parole board discretion – a combination of decisions from all three branches of government. This average length of stay (ALOS) can be accurately measured, but may have a limited utility because it points backward. If a group of burglars served thirty-one months on average before being paroled this month, it is not accurate to say that all burglars sentenced this month will serve thirty-one months, because statutes, case law, and the sentencing culture evolve over time.

    Trend-watching

    A second method used to gather data is to look at trends in parole decisions, because the parole decision is the biggest variable in the time actually served. However, this data is not specific to particular crimes, or even levels of felony. It is backward- looking because it computes actual past parole behaviors.

    Legislative and executive projections.

    Finally, a forward-looking method is to look at legislative and executive projections regarding the building of new prisons. Projections are done at least annually by the Colorado Division of Criminal Justice (DCJ) and the Legislative Council.

    The average time served was twenty-nine months. for an average percentage of time served of 59.1 percent.

    Conclusion

    In the final analysis the computation of final time served is a moving target. The purpose of this page is to begin to help you understand some of the basics in calculating the final incarceration period of time for the sentenced felony offender.

     


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
    E-Mail:  [email protected]
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