Fernandez v. CDOC

23CA2011 Fernandez v CDOC 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2011
El Paso County District Court No. 23CV224
Honorable David A. Gilbert, Judge

Marcus J. Fernandez,

Plaintiff-Appellant,

v.

Executive Director of Colorado Department of Corrections and Warden of the
Buena Vista Correctional Facility,

Defendants-Appellees

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE KUHN
Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Marcus J. Fernandez, Pro se

Philip J. Weiser, Attorney General, Rebekah Ryan, Assistant Attorney General,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, Marcus J. Fernandez, sued the Colorado Department

of Corrections (CDOC) regarding its calculation of his parole

eligibility date (PED) for the two sentences he is currently serving.

Defendants, the CDOC’s Executive Director and the Warden of the

Buena Vista Correctional Facility, moved to dismiss Fernandez’s

suit under C.R.C.P. 12(b)(5). The district court granted the motion

and dismissed his complaint. We affirm.

I. Background and Sentencing

¶2 A jury convicted Fernandez of first degree felony murder and

first degree aggravated motor vehicle theft for acts committed when

he was fifteen. The trial court originally sentenced him to

concurrent sentences of life without the possibility of parole and

sixteen years in the custody of the CDOC for his respective

convictions. After Colorado amended its statutes to prohibit

mandatory life sentences without the possibility of parole for

juvenile offenders, Fernandez was resentenced to forty-six years for

the felony murder, again running concurrently with the

sixteen-year-motor-vehicle-theft sentence. Both sentences began to

run on the same date.

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¶3 Fernandez’s PED for his vehicle theft sentence is controlled by

section 17-22.5-403(1), C.R.S. 2024, which says that he will be

eligible for parole after completing fifty percent of his sixteen-year

sentence. But his PED for the felony murder sentence is controlled

by section 17-22.5-403(2)(c)(I), which says that a resentenced

juvenile is not entitled to a sentence reduction for his PED. In other

words, he is not entitled to any reduction of his forty-six-year

sentence before he will be eligible for parole.

¶4 The CDOC used Fernandez’s forty-six-year sentence as his

controlling sentence and calculated his PED as falling at the end of

that sentence, adjusted for other credits and reductions. Fernandez

disagreed with that calculation and filed a petition for a writ of

mandamus to direct the CDOC to recalculate his PED to give effect

to both provisions in section 17-22.5-403. His request in the

district court — repeated on appeal — is to have the CDOC make

his PED eight years earlier than the end of his forty-six-year

sentence. He argues that this will give effect to the fifty percent

reduction of his sixteen-year sentence as well as the forty-six-year

sentence itself.

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¶5 The CDOC filed a motion to dismiss the case under Rule

12(b)(5), arguing that Fernandez was not entitled to his requested

relief as a matter of law. The trial court granted the motion and

dismissed the case.

II. Analysis

¶6 Fernandez contends that the district court erred by denying

his petition for a writ of mandamus because the CDOC did not

apply the proper method of calculating his PED.

A. Standard of Review and Applicable Law

¶7 “We review a trial court’s ruling on a motion to dismiss de

novo, ‘applying the same standards as the trial court.’” Sch. Dist.

No. 1 v. Masters, 2018 CO 18, ¶ 13 (quoting Bly v. Story, 241 P.3d

529, 533 (Colo. 2010)). We must “accept all allegations of material

fact as true and view the allegations in the light most favorable to

the plaintiff.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.

1999). “Dismissal is proper when the plaintiff’s factual allegations

cannot support a claim as a matter of law.” Graham v. Maketa, 227

P.3d 516, 518 (Colo. App. 2010).

¶8 “Mandamus is an extraordinary remedy that requires public

officials to perform plain legal duties they owe by virtue of their

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offices.” Owens v. Carlson, 2022 CO 33, ¶ 21 (citing Bd. of Cnty.

Comm’rs v. Cnty. Rd. Users Ass’n, 11 P.3d 432, 437 (Colo. 2000)).

“While mandamus is available to compel the performance of ‘a

purely ministerial duty involving no discretionary right’ and

requiring no ‘exercise of judgment,’ it is not available to compel the

performance of a task that ‘is discretionary or involves the exercise

of judgment.’” Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at 437).

¶9 A plaintiff seeking mandamus relief bears a demanding

burden to satisfy a three-part 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 can be no other

remedy available. Id. (quoting Cnty. Rd. Users Ass’n, 11 P.3d at

437).

B. The Governing Sentence Determines
Fernandez’s Parole Eligibility Date

¶ 10 Fernandez argues that he has a clear right to recalculation of

his PED because the CDOC’s use of the longer of his two sentences

as the parole-determining sentence is improper. He also proposes

an alternative method for calculating his PED. But because the

Colorado Supreme Court has allowed for the use of the governing

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sentencing method in sentencing situations like Fernandez’s, we

disagree and resolve his case at this initial step.

¶ 11 The one continuous sentence rule governs Fernandez’s case:

“[W]hen any inmate has been committed under several convictions

with separate sentences, the [CDOC] shall construe all sentences as

one continuous sentence.” § 17-22.5-101, C.R.S. 2024. The

legislature did not define the phrase “one continuous sentence”;

however, the Colorado Supreme Court has approved of various

methodologies that satisfy this requirement.

¶ 12 One such method relies on the governing sentence, which

applies when an inmate has multiple sentences “with incompatible

[sentencing] provisions governing the service of those sentences.”

Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77, ¶ 13. In

such a case, the CDOC uses the sentence with the longest

incarceration effect as controlling for parole eligibility. Id.

Additionally, “[i]n the case of concurrent sentences, [the supreme

court] ha[s] said that ‘concurrent sentences obviously commence at

the same time and in functional effect result in one term of

imprisonment represented by the longest of the concurrent

sentences imposed.’” Vaughn v. Gunter, 820 P.2d 659, 661 (Colo.

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1991) (quoting Schubert v. People, 698 P.2d 788, 795 (Colo. 1985)).

“The longest of the concurrent sentences also is described as the

‘governing’ sentence.” Id. While the CDOC is not required to use

the governing sentence methodology, it is one available tool that it

may apply. See Fetzer, ¶ 21.

¶ 13 Simply put, the governing sentence methodology applies when

a party has multiple concurrent sentences with the same start date,

controlled by conflicting parole eligibility or other sentencing

frameworks. See id. at ¶¶ 13-16; Vaughn, 820 P.2d at 661.

¶ 14 Fernandez’s two sentences fit exactly within this

methodology’s contours. Both sentences have the same start date.

Taken together, they constitute his composite continuous sentence.

His sixteen-year-vehicle-theft sentence, with parole eligibility after

he has served fifty percent of the sentence, is incompatible with his

forty-six-year-felony-murder sentence, which is ineligible for early

release. Thus, the CDOC properly used Fernandez’s felony murder

sentence as the governing sentence when determining his PED. See

Fetzer, ¶ 15.

¶ 15 We understand Fernandez’s argument that the CDOC may not

just use his longer sentence but instead must construct a single

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composite sentence. We agree that the CDOC may not simply use

the longest sentence, see id. at ¶ 21, but that’s not what’s

happening here (though as a practical matter it has the same effect

in this case). The supreme court has held that using the governing

sentence is an allowable application of the one continuous sentence

framework rather than the impermissible use of the longest

sentence. See id. at ¶ 16. As the court said in Fetzer,

[T]he composite governing sentence has always
controlled as an application of — not a
substitute for — the statutorily required one
continuous sentence. In those few cases in
which we have approved reliance on an
inmate’s longest sentence to determine the
applicable credit or sentencing scheme, the
longest or governing sentence has had either
the earliest effective date of all the inmate’s
separate sentences or an effective date
coinciding with those of the inmate’s other
separate sentences, and therefore the starting
point of the governing sentence coincided with
the starting point of the composite continuous
sentence.

Id. (emphasis added) (citations omitted).

¶ 16 Because Fernandez’s concurrent sentences have the same

start date, the CDOC’s use of his longest sentence to calculate his

PED comports with the governing sentence framework and the one

continuous sentence requirement.

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¶ 17 Finally, Fernandez also proposes alternative sentencing

methodologies and submits well-written arguments for why he

believes they would be better than the system provided by the

legislature and implemented by the CDOC. However, “[c]ourts may

not rewrite statutes to improve them.” Yen, LLC v. Jefferson Cnty.

Bd. of Comm’rs, 2021 COA 107, ¶ 38 (quoting Dep’t of Transp. v.

City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008)). And as

the supreme court has instructed, “[w]hether or not other systems

of determining the applicable parole statutes and applying them to

the composite continuous sentences mandated by section

17-22.5-101 might also be acceptable, unless the methodology

selected by the [CDOC] contravenes a statute or the constitutional

rights of an inmate, it will be upheld.” Fetzer, ¶ 20. Fernandez’s

policy arguments therefore cannot be the basis for reversal in this

case.

¶ 18 Thus, Fernandez is not clearly entitled to a recalculation of his

PED. And because he has failed to satisfy the first prong of the

mandamus test — demonstrating a clear right to the relief

sought — we discern no error in the trial court’s dismissal of his

claim.

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III. Disposition

¶ 19 The judgment is affirmed.

JUDGE HARRIS and JUDGE YUN concur.

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