Lewis v. Stancil

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 12, 2026

2026COA8

No. 25CA0087, Lewis v. Stancil — Criminal Law — Inmate and
Parole Time Computation — One Continuous Sentence —
Earned Time

A division of the court of appeals examines the impact of a

nunc pro tunc judgment of conviction on an inmate’s earned time

credits. In this case, the inmate sought mandamus relief requiring

the Department of Corrections (DOC) to apply his earned time

credits to his “one continuous sentence” — which he asserted

comprised sentences from prior convictions for which he was

incarcerated as of the nunc pro tunc date and the sentence from his

later conviction that the court backdated — even though, after the

effective date of the later conviction, the DOC applied the credits to

discharge the prior convictions. The division holds that the DOC

did not have a clear duty to apply the inmate’s earned time credits

when calculating the inmate’s parole eligibility date in the later
case. The dissent concludes that the DOC was required to treat the

inmate’s discharged sentences as part of his one continuous

sentence as of the nunc pro tunc date when calculating the

inmate’s parole eligibility date in the later case.
COLORADO COURT OF APPEALS 2026COA8

Court of Appeals No. 25CA0087
El Paso County District Court No. 24CV183
Honorable David A. Gilbert, Judge

Mark Lewis,

Plaintiff-Appellant,

v.

Moses Andre Stancil, the Executive Director of the Colorado Department of
Corrections,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE LIPINSKY
Berger*, J., concurs
Taubman*, J., dissents

Announced February 12, 2026

Mark Lewis, Pro Se

Philip J. Weiser, Attorney General, Katherine Fredericks, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Judges possess the power to turn back time through “[n]unc

pro tunc” orders and judgments, which contain a retroactive

effective date. Dill v. Cnty. Ct., 541 P.2d 1272, 1273 (Colo. App.

1975). They have “retroactive legal effect through a court’s inherent

power.” People v. Sherrod, 204 P.3d 466, 468 n.3 (Colo. 2009)

(quoting Black’s Law Dictionary 1100 (8th ed. 2004)) (noting that

“[n]unc pro tunc” literally means “now for then”).

¶2 In this case, we address a novel issue regarding the effect of a

nunc pro tunc judgment of conviction on an inmate’s prior

convictions. Specifically, we examine the impact of such a

judgment on the inmate’s earned time credits that the Department

of Corrections (DOC) applied to discharge the prior convictions

between the nunc pro tunc date and the date on which the trial

court signed the nunc pro tunc judgment.

¶3 Mark Lewis appeals the district court’s entry of judgment

against him in his mandamus action against the DOC through its

Executive Director. We affirm.

I. Background

¶4 In 2016, a jury convicted Lewis of first degree murder and

tampering with physical evidence. On January 28, 2016, the trial

1
court sentenced him to life without parole in the custody of the

DOC on the first degree murder count and eighteen months on the

tampering with physical evidence count, with the latter sentence to

run concurrently with the former. At the time of sentencing, Lewis

was serving sentences for several prior convictions. Those

convictions had an effective sentence date of May 17, 2013.

¶5 Lewis appealed his conviction in the 2016 case. A division of

this court reversed his first degree murder conviction and remanded

for a new trial. People v. Lewis, (Colo. App. No. 17CA0219, May 21,

2020) (not published pursuant to C.A.R. 35(e)). (The appeal did not

affect Lewis’s conviction for tampering with physical evidence.)

¶6 On June 2, 2021, after the division reversed Lewis’s first

degree murder conviction, the DOC, through the parole board,

discharged Lewis’s previous sentences and the tampering with

physical evidence sentence based on his accumulated earned time,

and it released him to five years of mandatory parole as of April 5,

2021. The April date would have been Lewis’s mandatory release

date if he had not been serving the first degree murder sentence.

Lewis remained incarcerated pending his new trial on the murder

charge.

2
¶7 At Lewis’s retrial in December 2021, a jury convicted him of

second degree murder. The trial court sentenced Lewis to

twenty-eight years in the custody of the DOC. The trial court

entered the sentence nunc pro tunc to January 28, 2016 (the date

Lewis was sentenced for first degree murder) and granted him credit

for 319 days of time served.

¶8 Lewis is currently serving the twenty-eight-year second degree

murder sentence and remains subject to the five-year parole term

on the discharged sentences.

¶9 In his first claim for relief, Lewis sought a writ of mandamus to

compel the DOC to recalculate his parole eligibility date (PED)

under the “one continuous sentence rule” by considering his

discharged sentences. In his second claim, he sought a writ of

mandamus requiring the DOC to retroactively award him earned

time for the time he served for the vacated first degree murder

conviction.

¶ 10 The DOC moved to dismiss Lewis’s case for failure to state

claims upon which relief can be granted under C.R.C.P. 12(b)(5).

The district court granted the motion because “Lewis failed to show

a clear right to the inclusion of [the] discharged sentences in his

3
one continuous sentence and [PED] calculations and has no clear

right to any award of earned time.”

¶ 11 Lewis moved for reconsideration and filed an untimely

response to the dismissal motion. The district court stayed the

dismissal order while it considered Lewis’s untimely response to the

motion to dismiss. The district court also conducted a hearing on

the motion to reconsider. At the conclusion of the hearing, the

district court denied the motion and, later that same day, issued an

order upholding the dismissal of Lewis’s claims. (The record does

not contain a transcript of the hearing. The lack of a transcript

would be fatal to Lewis’s appeal if, at the hearing, the district court

made findings of fact to support its ruling. See, e.g., Levin v.

Anouna, 990 P.2d 1136, 1139 (Colo. App. 1999) (holding that,

because the plaintiffs failed to include the hearing transcript in the

appellate court record, the court would presume the evidence

supported the trial court’s findings and conclusions at the hearing).

But because the hearing in this case concerned a motion to dismiss

under C.R.C.P. 12(b)(5), and therefore did not involve resolution of

disputed factual issues or findings of fact, we will consider Lewis’s

legal arguments on the merits despite the lack of a transcript. See

4
Griffis v. Branch Banking & Tr. Co., 602 S.E.2d 307, 311 (Ga. Ct.

App. 2004) (holding that the lack of a hearing transcript did not

impact the court’s ability to review the appellant’s arguments

because “the hearing was not to receive evidence but was to hear

argument of counsel”).)

¶ 12 Lewis first contends that the DOC improperly calculated his

second degree murder sentence and PED under the one continuous

sentence rule. He argues that the DOC should calculate his one

continuous sentence by construing the second degree murder

sentence together with his sentences that were in effect on the nunc

pro tunc date of January 28, 2016. If Lewis is correct, the length of

his one continuous sentence would be thirty years, eight months,

and eleven days, with a start date of May 17, 2013 — the

sentencing date in his earliest case.

¶ 13 Second, Lewis contends that he is entitled to a retroactive

application of earned time credits to the calculation of the second

degree murder sentence, meaning that his PED should be February

16, 2035, and that the DOC should reduce his prison time by

“several years.”

5
¶ 14 Lewis asserts that, for these reasons, he pleaded claims on

which relief can be granted, and the district court therefore erred by

dismissing them. We disagree.

II. The Law

A. Standard of Review

¶ 15 “We review de novo a district court’s dismissal for failure to

state a claim under C.R.C.P. 12(b)(5), and we apply the same

standards as the district court.” N.M. v. Trujillo, 2017 CO 79, ¶ 18,

397 P.3d 370, 373; accord Dorman v. Petrol Aspen, Inc., 914 P.2d

909, 911 (Colo. 1996) (“In evaluating [a motion to dismiss under

C.R.C.P. 12(b)(5)], trial courts and appellate courts apply the same

standards.”). “Accordingly, we accept all allegations in the

complaint as true, and we view them in the light most favorable to

the [nonmoving] party.” N.M., ¶ 18, 397 P.3d at 373.

¶ 16 “The purpose of a motion under C.R.C.P. 12(b)(5) to dismiss a

complaint for failure to state a claim upon which relief can be

granted is to test the formal sufficiency of the complaint.” Dorman,

914 P.2d at 911.

6
B. Mandamus Relief

¶ 17 “Mandamus is an extraordinary remedy which may be used to

compel performance by public officials of a plain legal duty

devolving upon them by virtue of their office or which the law

enjoins as a duty resulting from the office.” State ex rel. Norton v.

Bd. of Cnty. Comm’rs, 897 P.2d 788, 791 (Colo. 1995) (quoting

Sherman v. City of Colo. Springs Plan. Comm’n, 763 P.2d 292, 295

(Colo. 1988)).

¶ 18 “The power of the courts to order executive agencies to take

any action is extremely limited.” Jones v. Colo. State Bd. of

Chiropractic Exam’rs, 874 P.2d 493, 494 (Colo. App. 1994). Indeed,

“[m]andamus lies to compel the performance of a purely ministerial

duty involving no discretionary right and not requiring the exercise

of judgment.” Verrier v. Colo. Dep’t of Corr., 77 P.3d 875, 877 (Colo.

App. 2003) (quoting Bd. of Cnty. Comm’rs v. Cnty. Rd. Users Ass’n,

11 P.3d 432, 437 (Colo. 2000)).

¶ 19 A court will only grant mandamus relief if the plaintiff satisfies

all three parts of the applicable test: (1) the “plaintiff must have a

clear right to the relief sought”; (2) the “defendant must have a clear

duty to perform the act requested”; and (3) “there must be no other

7
available remedy.” Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.

1983). Divisions of this court have found a “clear right to the relief

sought” when the challenged action was contrary to the plain

language of a statute or regulation. Id.; see, e.g., Gandy v.

Raemisch, 2017 COA 110, ¶ 29, 405 P.3d 480, 486 (concluding that

mandamus relief was appropriate because the official’s reading of

the applicable regulation would have rendered certain language of

the regulation superfluous); Fetzer v. Exec. Dir. of Colo. Dep’t of

Corr., 2016 COA 7M, ¶ 35, 399 P.3d 742, 749 (holding that the

appellant was entitled to mandamus relief because, under the

applicable statute, the DOC “ha[d] a clear duty” to calculate the

appellant’s PED in the manner for which the appellant advocated),

aff’d in part and rev’d in part on other grounds, 2017 CO 77, 396

P.3d 1108; Asphalt Specialties, Co. v. City of Commerce City, 218

P.3d 741, 746 (Colo. App. 2009) (deciding that the appellant was

entitled to a writ of mandamus because the appellee’s actions were

contrary to the subject ordinance).

C. The One Continuous Sentence Rule

¶ 20 “For purposes of administering a criminal convict’s sentence,

this jurisdiction has long required that his separate sentences be

8
construed as one continuous sentence.” Fetzer, 2017 CO 77, ¶ 8,

396 P.3d at 1110. This principle is codified in section 17-22.5-101,

C.R.S. 2025: “[W]hen any inmate has been committed under several

convictions with separate sentences, the [DOC] shall construe all

sentences as one continuous sentence.”

¶ 21 The DOC interprets “sentence” in section 17-22.5-101 to mean

only an active sentence with a prison component — an

interpretation that the supreme court has determined is reasonable.

Diehl v. Weiser, 2019 CO 70, ¶¶ 19-26, 444 P.3d 313, 318-19.

III. Analysis

A. Lewis Did Not Establish a Clear Right to a New PED

¶ 22 Lewis’s first claim for relief fails, as a matter of law, because

he does not have “a clear right to the relief sought.” Gramiger, 660

P.2d at 1281.

¶ 23 Lewis argues that, because on January 28, 2016 — the nunc

pro tunc date of his second degree murder sentence — he was still

serving the sentences that were later discharged, the DOC must

consider those sentences and the associated earned time credits

when calculating his release date for the second degree murder

conviction. Thus, Lewis asserts he is entitled to a writ of

9
mandamus requiring the DOC to recalculate his PED by applying

the one continuous sentence rule to the discharged sentences and

the second degree murder sentence. In other words, according to

Lewis, because the discharged sentences had an effective sentence

date of May 17, 2013, the DOC should calculate his PED from that

date and not from the nunc pro tunc date of his second degree

murder sentence. We disagree.

¶ 24 As a matter of law, when the DOC discharged Lewis’s earlier

sentences on June 2, 2021, and he became subject only to the

parole term, the earlier sentences were “no longer operable in any

sense.” People v. Luther, 58 P.3d 1013, 1016 (Colo. 2002); see

§ 18-1.3-401(1)(a)(V)(D), C.R.S. 2025. For this reason, when the

trial court sentenced Lewis for second degree murder six months

later, that sentence was his one continuous sentence and he

remained subject to the parole term. The nunc pro tunc order had

no impact on Lewis’s discharged sentences because it could not

revive them. See Diehl, ¶¶ 19-26, 444 P.3d at 318-19.

¶ 25 No legal authority supports Lewis’s contention that the one

continuous sentence rule applies to sentences that were discharged

before he was sentenced in his most recent case — even if the trial

10
court entered the latter sentence nunc pro tunc. More significantly,

he does not cite any authority, and we are aware of none,

establishing that because his parole term became effective after the

nunc pro tunc date of the second degree murder sentence, the DOC

had a clear duty to look to Lewis’s discharged sentences to calculate

his one continuous sentence. See Gramiger, 660 P.2d at 1281. To

the contrary, section 18-1.3-401(1)(a)(V)(D); Luther, 58 P.3d at

1016; and Diehl, ¶¶ 19-26, 444 P.3d at 318-19, establish that,

when the DOC discharged Lewis’s earlier sentences and released

Lewis to parole, the discharged sentences no longer had active

prison components and, therefore, were of no consequence to the

calculation of his one continuous sentence.

¶ 26 In sum, the DOC did not have a clear duty to apply the

discharged sentences to the calculation of Lewis’s second degree

murder sentence, and, for that reason, Lewis did not state a claim

for mandamus relief when he requested a new PED calculation.

See Gramiger, 660 P.2d at 1281.

¶ 27 Accordingly, we conclude that Lewis has not shown a clear

right to the PED calculation he requests. See id.

11
B. Lewis Failed to Show a Clear Right to the
Application of Earned Time Credits to
the Calculation of His Second Degree Murder Sentence

¶ 28 Lewis contends that the DOC was required to apply his

previously awarded earned time credits to his second degree murder

sentence because the trial court made that sentence retroactive to

January 28, 2016. We disagree.

¶ 29 Lewis was not entitled to mandamus relief compelling the DOC

to apply his earned time credits when calculating his second degree

murder sentence because the application of such credits is within

the DOC’s discretion. See § 17-22.5-405(1), C.R.S. 2025 (“Earned

time, not to exceed ten days for each month of incarceration or

parole, may be deducted from the inmate’s sentence . . . .”

(emphasis added)); Renneke v. Kautzky, 782 P.2d 343, 344-45

(Colo. 1989) (concluding that the General Assembly “granted the

[DOC] discretion to withhold or deduct good time credits and to

withhold, withdraw or restore earned time credits authorized to be

awarded to inmates”); People v. Frank, 30 P.3d 664, 666 (Colo. App.

2000) (noting that “the granting of earned-time by the DOC is

discretionary”).

12
¶ 30 Moreover, Lewis does not explain how he could benefit from

application of the earned time credits to his second degree murder

sentence in light of the DOC’s application of those very same credits

to discharge his previous sentences in June 2021. Presumably, if

Lewis prevailed on his mandamus claims, the discharge of his

previous sentences would need to be reversed so the credits could

be applied to the second degree murder conviction. But the record

does not reveal how reapplying the credits in this manner would

impact his previous sentences.

¶ 31 Accordingly, Lewis’s earned time argument also fails. See

Verrier, 77 P.3d at 878 (holding that the granting of earned time

credit “lies in the discretion of the DOC, and [a] plaintiff has no

clear right to receive, and [the DOC] ha[s] no clear duty to grant,

earned time credit”); see Gramiger, 660 P.2d at 1281.

¶ 32 Because neither of Lewis’s contentions stated a claim upon

which relief can be granted, the district court properly dismissed

them. See Negron v. Golder, 111 P.3d 538, 542 (Colo. App. 2004)

(“A motion to dismiss is properly granted when the plaintiff’s factual

allegations cannot support a claim as a matter of law.”);

C.R.C.P. 12(b)(5).

13
IV. Disposition

¶ 33 The judgment is affirmed.

JUDGE BERGER concurs.

JUDGE TAUBMAN dissents.

14
JUDGE TAUBMAN, dissenting.

¶ 34 Because of the technical application by defendant, the

Colorado Department of Corrections through its Executive Director

(the DOC), of its regulations for calculating an inmate’s earned time,

plaintiff, Mark Lewis, is being penalized for successfully appealing

his first degree murder conviction, which after a new trial, resulted

in his conviction for second degree murder. Cf. People v. Johnson,

2015 CO 70, ¶¶ 17-18, 363 P.3d 169, 176 (“[C]ourts may not ‘put a

price on an appeal.’” (quoting North Carolina v. Pearce, 395 U.S.

711, 724 (1969))). Accordingly, he has been wrongly deprived of

several years of earned time credits, even though the trial court in

his second trial made his second degree murder sentence

retroactive to the date of his first conviction with a nunc pro tunc

designation so that Lewis could be credited with such earned time.

Thus, in my view, the district court erred by dismissing Lewis’s

mandamus action, and I would reverse and remand that decision

for further proceedings.

¶ 35 More specifically, as discussed below, I believe the district

court erred by not applying (1) nunc pro tunc case law to Lewis’s

second degree murder sentence and (2) the rules for mandamus

15
relief to the circumstances presented here. Because a nunc pro

tunc order “is fully operative on the litigant’s rights as of the

prescribed effective date,” Law Offs. of Andrew L. Quiat, P.C. v.

Ellithorpe, 917 P.2d 300, 303 (Colo. App. 1995), I respectfully

disagree with the majority’s conclusion that the DOC lacked a clear

duty to consider the nunc pro tunc sentence for Lewis as part of his

one continuous sentence, § 17-22.5-101, C.R.S. 2025, and apply

his previously awarded earned time credits to that sentence and to

reduce his parole eligibility date (PED) by “several years.”

I. Background

¶ 36 As a preliminary matter, I largely agree with the majority’s

recitation of the factual background. Even so, I believe the

following additional details warrant consideration.

¶ 37 On direct appeal, a division of this court reversed Lewis’s first

degree murder conviction, as the majority notes. People v. Lewis,

(Colo. App. No. 17CA0219, May 21, 2020) (not published pursuant

to C.A.R. 35(e)). The division reversed that conviction because the

trial court erred by providing an initial aggressor instruction

unsupported by the evidence. Id., slip op. at 7-18.

16
¶ 38 Further, Lewis alleged in his mandamus complaint, whose

allegations we must accept as true, see Peña v. Am. Fam. Mut. Ins.

Co., 2018 COA 56, ¶ 15, 463 P.3d 879, 882, that, while the direct

appeal was pending, the DOC (pursuant to its policy) did not

calculate either his “time on” the tampering with physical evidence

sentence or his earned time credits for the life without parole

sentence for first degree murder. Indeed, the DOC could not do so

because earned time credits may not accrue to a life without parole

sentence. DOC Admin. Reg. 625-02(IV)(C)(1)(d). Lewis alleged that

after the division reversed his first degree murder conviction, the

DOC calculated his earned time and PED for his tampering with

physical evidence sentence, as well as for the sentences from his

previous convictions, resulting in the discharge of his prior

sentences.

¶ 39 As the majority notes, the second trial resulted in the trial

court imposing Lewis’s sentence of twenty-eight years for second

degree murder nunc pro tunc to January 28, 2016, the original

sentence date. However, in my view, additional facts in the record

of Lewis’s criminal case are relevant to his complaint and request

for mandamus relief. See Norton v. Rocky Mountain Planned

17
Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334 (“When

considering a motion to dismiss for failure to state a claim, we may

consider . . . matters proper for judicial notice.”); see also Walker v.

Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006) (“[T]he general

rule is that a court is permitted to take judicial notice of certain

matters without converting a motion to dismiss to one for summary

judgment.”).

¶ 40 First, at the second trial, as noted, the jury convicted Lewis of

second degree murder. Yet the jury also acquitted him of the

charge of first degree murder. This suggests that at the first trial,

but for the instructional error, the jury might well not have

convicted Lewis of first degree murder, and he would not have

received a sentence for life without parole in 2016.

¶ 41 Second, the pleadings following the sentencing at the second

trial showed that the trial court amended the mittimus multiple

times. The court did so because the DOC raised duplication

concerns about Lewis’s presentence confinement credits due to the

nunc pro tunc provision. During this amendment process, the trial

court stated in an order that it had issued the sentence nunc pro

tunc to ensure that Lewis would receive good time or earned time

18
credits retroactive to the date of his original sentence. In pertinent

part, the final amended mittimus (1) granted Lewis presentence

confinement credit; (2) stated that his sentence of twenty-eight

years for second degree murder ran concurrently to Lewis’s prior

sentences; and (3) was issued nunc pro tunc to the original

sentence date.

II. Nunc Pro Tunc Law

¶ 42 Lewis contends that the trial court’s nunc pro tunc order from

the second trial must be applied to credit him with earned time that

he would have earned if he hadn’t been wrongly convicted of first

degree murder. I agree.

¶ 43 Nunc pro tunc (“Latin [for] ‘now for then’”) is defined as

“[h]aving retroactive legal effect through a court’s inherent power.”

Black’s Law Dictionary 1283 (12th ed. 2024). Colorado’s appellate

cases have described two aspects of a nunc pro tunc order.

¶ 44 One aspect is to “ameliorate harm done to a party by court

delays or clerical errors.” Guarantee Tr. Life Ins. Co. v. Est. of

Casper, 2018 CO 43, ¶ 27, 418 P.3d 1163, 1173; see People v.

Sherrod, 204 P.3d 466, 468 n.3 (Colo. 2009). This means that a

nunc pro tunc order “is normally made to correct an omission from

19
the court records.” People v. Mascarenas, 666 P.2d 101, 111 (Colo.

1983) (emphasis added); see In re Estate of Becker, 32 P.3d 557,

559 (Colo. App. 2000) (“Court orders entered nunc pro tunc . . . are

normally for the purpose of correcting an omission from the court

records . . . .” (emphasis added)), aff’d sub nom., In re Estate of

DeWitt, 54 P.3d 849 (Colo. 2002); see also United States v.

Carpenter, 164 F. App’x 707, 709 (10th Cir. 2006) (“Generally

speaking, such orders are reserved for situations where a clerical

error in a judgment, order, or other part of a record requires

correction.” (emphasis added)). This aspect is clearly not at issue

here because Lewis does not assert a clerical error or an omission

from court records.

¶ 45 The second and broader aspect of nunc pro tunc orders, which

applies here, provides that such orders are “given the same force

and effect as if entered at the time the court’s decision was

originally rendered.” Dill v. Cnty. Ct., 541 P.2d 1272, 1273 (Colo.

App. 1975); see Stone v. Currigan, 334 P.2d 740, 743 (Colo. 1959)

(“Except as to the rights of third persons, a judgment nunc pro tunc

is retrospective, and has the same force and effect, to all intents and

purposes, as though it had been entered at the time when the

20
judgment was originally rendered.” (emphasis added) (quoting 49

C.J.S. Judgments § 121 (1947))); 49 C.J.S. Judgments § 162,

Westlaw (database updated Dec. 2025) (same); Ellithorpe, 917 P.2d

at 303 (“[A] nunc pro tunc order operates retrospectively and

generally is fully operative on the litigant’s rights as of the prescribed

effective date . . . .” (emphasis added)). This second aspect of nunc

pro tunc case law enables courts to afford substantive relief to

litigants in appropriate cases. Cf. Perdew v. Perdew, 64 P.2d 602,

604 (Colo. 1936) (holding that a nunc pro tunc order may be

entered “where the cause was ripe for judgment and one could have

been entered at the date to which it is to relate back, provided [any]

failure is not the fault of the moving party” (emphasis added)).

¶ 46 The district court concluded that the DOC may disregard

Lewis’s prior sentences because they were discharged and could not

be revived by the nunc pro tunc order. See People v. Luther, 58

P.3d 1013, 1016 (Colo. 2002); Diehl v. Weiser, 2019 CO 70,

¶¶ 19-26, 444 P.3d 313, 318-19. I agree that a nunc pro tunc order

in one case has no impact on the operability of sentences issued in

other cases.

21
¶ 47 However, I respectfully disagree that the discharge of Lewis’s

prior sentences is relevant to the retrospective effect of the nunc pro

tunc sentence for second degree murder. Cf. Robbins v. Goldberg,

185 P.3d 794, 797 (Colo. 2008) (holding that, where a court

mistakenly did not enter judgment properly, the appropriate remedy

was a nunc pro tunc judgment). Rather, we must give the nunc pro

tunc sentence “the same force and effect as if entered” on the

original sentence date. Dill, 541 P.2d at 1273 (emphasis added).

That means treating the sentence “as if” it were entered

concurrently with the prior sentences when they were active. Id.

Conceiving of Lewis’s prior sentences as if they were active in 2016

for purposes of the nunc pro tunc sentence does not require

reversing the discharge of those prior sentences. Rather, the DOC

should determine how the credits would have been applied with the

nunc pro tunc sentence as part of Lewis’s one continuous sentence,

rather than recreating past events in a way that attempts to

reinstate each prior sentence. Cf. United States v. Daniels, 902 F.2d

1238, 1240 (7th Cir. 1990) (holding that a nunc pro tunc order may

not rewrite history).

22
¶ 48 It follows that the nunc pro tunc sentence must be treated as

running concurrently with the prior sentences still in effect in 2016.

Thus viewed, the DOC is then obligated to address the nunc pro

tunc sentence as part of one continuous sentence as of the date of

the prior sentences. See § 17-22.5-101. Accordingly, this one

continuous sentence that includes the nunc pro tunc sentence of

twenty-eight years must receive the PED and earned time credits

computations that the DOC had already applied to Lewis’s prior

sentences. See Diehl, ¶ 15, 444 P.3d at 318.

¶ 49 I conclude that these details sufficiently established that the

mittimus required the DOC to treat the nunc pro tunc sentence the

same as the prior sentences, meaning as though it had been issued

concurrently with the prior sentences. See Meredith v. Zavaras, 954

P.2d 597, 603 (Colo. 1998) (To “permit the DOC to decline to comply

with [district court orders] . . . would undermine the power of the

judicial system to interpret the laws and impose criminal

sentences.”); see also People v. Pate, 878 P.2d 685, 694 (Colo. 1994)

(“It is axiomatic that the judiciary has the exclusive power to impose

sentences which fall within the limits determined by the General

Assembly.”).

23
III. Mandamus Relief

¶ 50 In my view, the district court erred by concluding that Lewis

was not entitled to mandamus relief.

¶ 51 Mandamus only applies here if Lewis has a clear right to relief,

the DOC has a clear duty to perform, and Lewis has no other

available remedy. See Gramiger v. Crowley, 660 P.2d 1279, 1281

(Colo. 1983).

A. Clear Right to Relief and Duty to Perform

¶ 52 Despite multiple amendments, the mittimus consistently

stated that the nunc pro tunc sentence of twenty-eight years must

run concurrently with the prior sentences. The trial court further

stated that the inclusion of the nunc pro tunc provision on the

mittimus was intended to ensure that the DOC would entitle Lewis

to good or earned time credits retroactively to the date of his

original sentence. Also, the DOC was aware of the nunc pro tunc

provision’s retrospective effect given that it raised concerns several

times about the nunc pro tunc provision’s impact on Lewis’s

presentence confinement credits.

¶ 53 In this mandamus action, Lewis requested that the district

court compel the DOC to adhere to computations it had already

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made and entered in his prior sentences. Thus, he has a clear right

for the DOC to treat his nunc pro tunc sentence as part of one

continuous sentence pursuant to the trial court’s nunc pro tunc

order for purposes of earned time and PED calculations for the

reasons already discussed. See Vaughn v. Gunter, 820 P.2d 659,

662 (Colo. 1991) (holding that section 17-22.5-101 mandates that

the DOC “construe all sentences imposed on an inmate as one

continuous sentence”); see also Fetzer v. Exec. Dir. of Colo. Dep’t of

Corr., 2016 COA 7M, ¶ 35, 399 P.3d 742, 749 (“[S]ection

17-22.5-101 imposes on DOC a duty to calculate the correct PED

for inmates.”), aff’d in part and rev’d in part on other grounds, 2017

CO 77, ¶ 21, 396 P.3d 1108, 1114.

¶ 54 For these same reasons, the DOC had an obligation under the

trial court’s order to adhere to the one continuous sentence statute.

§ 17-22.5-101; see Gramiger, 660 P.2d at 1281. In this case, such

adherence amounts to a ministerial function — not a discretionary

act — applying already computed earned time credits to the nunc

pro tunc sentence. See Gramiger, 660 P.2d at 1281.

¶ 55 Further, the DOC had no discretion to withdraw Lewis’s

earned time credits because they had vested under section

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17-22.5-405(3), C.R.S. 2025 (stating that earned time deduction

resulting from an annual review “shall vest upon being granted”).

The DOC applied Lewis’s earned time credits when discharging his

prior sentences. By applying earned time credits to the prior

sentences, which are part of Lewis’s one continuous sentence for

the reasons stated above, those earned time credits necessarily

vested. Thus, Lewis has a clear right to have the credits also apply

to his nunc pro tunc sentence of twenty-eight years. See

§§ 17-22.5-101, -405(3); see also Ankeney v. Raemisch, 2015 CO

14, ¶ 20, 344 P.3d 847, 854 (holding that reductions specified in

section 17-22.5-405 automatically reduce the term imposed on an

offender).

¶ 56 In my opinion, the unique circumstances presented here,

viewed in the light most favorable to Lewis, establish that Lewis has

a clear right to relief, and the DOC has a clear duty to apply the

PED and earned time credits calculations that Lewis seeks. See

Gramiger, 660 P.2d at 1281.

B. No Other Remedies Available

¶ 57 Last, no other remedies are available to Lewis, and the DOC

has not suggested any that could apply. See id. Indeed, if the error

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in the first trial had not occurred, Lewis may well have been

convicted of second degree murder, and without a sentence to life

without parole, he would have received the PED computation and

earned time credits already applied to his previous sentences.

Precluding him from having the opportunity to pursue such relief

essentially amounts to penalizing him for successfully appealing his

first degree murder conviction. See Johnson, ¶¶ 17-18, 363 P.3d at

176.

¶ 58 While the barrier to providing mandamus relief is high, it is

not insurmountable. Although mandamus relief is infrequently

granted, it has been deemed appropriate when a sentence

calculation by the DOC contradicts the one continuous sentence

statute. See Fetzer, ¶¶ 29-36, 399 P.3d at 748-49 (holding that the

inmate had a clear right to mandamus relief when the DOC

improperly construed the one continuous sentence statute to

calculate the inmate’s PED); Fields v. Suthers, 984 P.2d 1167, 1173

(Colo. 1999) (finding that mandamus relief was appropriate and

that the DOC had a duty to correctly calculate the inmate’s PED).

Thus, it is also appropriate here.

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IV. Conclusion

¶ 59 Accordingly, I believe nunc pro tunc law must be applied to

Lewis’s twenty-eight-year sentence and that he is entitled to

mandamus relief. See Fields, 984 P.2d at 1173. I thus conclude

that Lewis has stated plausible grounds for relief and would reverse

the judgment of the district court and remand for further

proceedings.

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