SUMMARY

December 31, 2020

2020COA177

No. 19CA0890, Owens v. Williams — Criminal Law — Parole —

Inmate and Parole Time Computation — One Continuous 

Sentence — Parole Eligibility

A division of the court of appeals holds that when a defendant 

is convicted of offenses to which different parole eligibility date 

calculation statutes apply, the Department of Corrections may, in 

appropriate circumstances, in treating the sentences as one 

continuous sentence (as it must, see § 17-22.5-101, C.R.S. 2020; 

Exec. Dir. of Colo. Dep’t of Corr. v. Fetzer, 2017 CO 77), apply just 

one such statute to the one continuous sentence, even if that 

means the defendant’s parole eligibility date would be later than if 

the sentences for each offense were treated separately for purposes 

of calculating the parole eligibility date. 

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.
COLORADO COURT OF APPEALS 2020COA177

Court of Appeals No. 19CA0890

Fremont County District Court No. 19CV31

Honorable Michael W. Meyrick, Magistrate

Nathanael E. Owens,

Plaintiff-Appellant,

v.

Dean Williams, Mary Carlson, and Scott Dauffenbach,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE J. JONES

Pawar, J., concurs

Berger, J., specially concurs

Announced December 31, 2020

Nathanael E. Owens, Pro Se

Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney 

General, Denver, Colorado, for Defendants-Appellees
1

¶ 1 Plaintiff, Nathanael E. Owens, is an inmate serving a lengthy 

sentence in the custody of the Colorado Department of Corrections 

(DOC) arising from convictions for three offenses. He sued

employees of the DOC1 under C.R.C.P. 106(a)(2) seeking a writ of 

mandamus, claiming that the DOC has improperly calculated his 

parole eligibility date. The DOC moved to dismiss, and the district 

court granted its motion.

¶ 2 Ultimately, this case turns on whether the DOC can rely on 

section 17-22.5-403(2.5), C.R.S. 2020, to calculate Owens’ parole 

eligibility date as the date he will have served seventy-five percent of 

his entire composite sentence. Owens contends that because he 

wasn’t convicted of a crime of violence, that provision doesn’t apply. 

The provision that does apply, he says, is section 17-22.5-403(1), 

which sets forth the general rule that an inmate is eligible for parole 

after serving fifty percent of his sentence. 

 

1 The defendants named in Owens’ complaint include Dean 

Williams, Mary Carlson, and Scott Dauffenbach. Although Owens 

sued the individuals in their official capacities, nothing in the 

record indicated the nature of their official titles or positions.
2

¶ 3 We conclude that the DOC doesn’t have a clear duty to 

calculate Owens’ parole eligibility date in the way Owens requests. 

We agree with Owens that his consecutive sentences for his offenses 

must be treated as one continuous sentence for the purpose of 

calculating his parole eligibility date. But because he was convicted 

of two class 3 felony counts of aggravated robbery, the DOC could 

apply the seventy-five percent multiplier of section 17-22.5-

403(2.5)(b)(I) when determining the parole eligibility date for the one 

continuous sentence, notwithstanding the fact that Owens is also 

serving a sentence for an offense that doesn’t fall within section 17-

22.5-403(2.5). We therefore affirm.

I. Background

¶ 4 In 2017, Owens pleaded guilty to two class 3 felony counts of 

aggravated robbery and one class 5 felony count of vehicular 

eluding. The district court sentenced him to ten years in DOC 

custody on each of the aggravated robbery convictions and four 

years on the vehicular eluding conviction, all to run consecutively.

¶ 5 The DOC initially calculated Owens’ parole eligibility date 

using a “hybrid” method that it had employed for many years: it 

applied the seventy-five percent multiplier of section 17-22.5-
3

403(2.5) to the convictions for aggravated robbery and applied the 

fifty percent multiplier of section 17-22.5-403(1) to the conviction 

for vehicular eluding. This resulted in a parole eligibility date of 

seventeen years from the date Owens began serving his sentence, 

less earned time credit.2

¶ 6 Owens filed this case under C.R.C.P. 106(a)(2) seeking a writ of 

mandamus requiring the DOC to calculate his parole eligibility date 

by treating his sentences as one continuous sentence and applying 

the fifty percent multiplier of section 17-22.5-403(1). He asserted 

that such a calculation is required because he wasn’t and hadn’t 

previously been convicted of any crime of violence.

¶ 7 The DOC moved to dismiss. It pointed out that it had 

recalculated Owens’ parole eligibility date by treating the three 

sentences as one continuous sentence as required by section 17-

22.5-101, C.R.S. 2020 (“For the purposes of this article, when any 

inmate has been committed under several convictions with separate 

sentences, the [DOC] shall construe all sentences as one 

 

2 The calculation can be expressed in mathematical terms as (.75 × 

10 (years) × 2 (number of convictions/sentences)) + (.50 × 4 (years)).
4

continuous sentence.”). See Exec. Dir. of Colo. Dep’t of Corr. v. 

Fetzer, 2017 CO 77 (holding that this provision applies to all 

calculations of parole eligibility dates). The DOC then applied the 

seventy-five percent multiplier to the composite twenty-four-year 

sentence, which resulted in a parole eligibility date about three 

months later than the originally calculated date. The DOC argued 

that its new calculation rendered Owens’ claim moot and, in the 

alternative, that Owens had failed to show a clear right to the relief 

he requested (applying the fifty percent multiplier) because the 

seventy-five percent multiplier of section 17-22.5-403(2.5)(a)(I) 

applies to Owens’ two class 3 felony aggravated robbery convictions.

¶ 8 Relying on section 17-22.5-403(2.5)(b)(II), Owens responded 

that section 17-22.5-403(2.5) can’t apply unless the offender has 

been previously convicted of a crime of violence.

¶ 9 The district court granted the DOC’s motion on the DOC’s 

alternative ground that Owens doesn’t have a clear right to have his 

parole eligibility date calculated using the fifty percent multiplier.

II. Discussion

¶ 10 The parties’ arguments on appeal track their arguments in the 

district court. Like the district court, we conclude that Owens is 
5

mistaken that he has a clear right to application of the fifty percent 

multiplier of section 17-22.5-403(1).3

A. Standard of Review

¶ 11 Because the DOC attached an affidavit to its motion to 

dismiss, we will treat the motion as one for summary judgment. 

See C.R.C.P. 12(b) (if matters outside the pleadings are submitted 

with a motion to dismiss for failure to state a claim, and considered 

by the court, “the motion shall be treated as one for summary 

judgment”); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339 

(Colo. 1988); Garcia v. Centura Health Corp., 2020 COA 38, ¶ 50. 

We review a district court’s summary judgment de novo. Burton v. 

Colo. Access, 2018 CO 11, ¶ 19. Summary judgment is proper 

when the record shows that there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law. 

C.R.C.P. 56(c).

 

3 We reject the DOC’s assertion that because it recalculated Owens’ 

parole eligibility date by treating the three sentences as one 

continuous sentence, his claim is moot. That was just one aspect 

of the recalculation. Owens’ challenge to the use of the seventy-five 

percent multiplier rather than the fifty percent multiplier presents 

an issue that could affect his parole eligibility date.
6

¶ 12 This case also turns largely on questions of statutory 

interpretation. We also review such questions de novo. Colo. Oil & 

Gas Comm’n v. Martinez, 2019 CO 3, ¶ 19; Nowak v. Suthers, 2014 

CO 14, ¶ 17 (construing sections 17-22.5-101 and 17-22.5-403(1)). 

When we interpret a statute, we look to the entire statutory scheme 

to give consistent, harmonious, and sensible effect to all its parts, 

and we apply words and phrases consistent with their plain and 

ordinary meanings. Martinez, ¶ 19; Denver Post Corp. v. Ritter, 255 

P.3d 1083, 188-89 (Colo. 2011). If the statutory language is clear, 

we apply it as written, without resorting to other principles of 

statutory interpretation. Martinez, ¶ 19; Denver Post Corp., 255 

P.3d at 1088.

B. Analysis

¶ 13 We begin by recognizing the limiting principles applicable to 

suits for mandamus relief. Under C.R.C.P. 106(a)(2), a person may 

petition a court for an order

to compel a . . . governmental body . . . to 

perform an act which the law specially enjoins 

as a duty resulting from an office, trust, or 

station, or to compel the admission of a party 

to the use and enjoyment of a right or office to 

which his is entitled, and from which he is 
7

unlawfully precluded by such . . . 

governmental body . . . .

¶ 14 Mandamus is an extraordinary remedy that may be used to 

compel performance by a public official of a plain legal duty 

imposed on the official by virtue of the official’s office. Bd. of Cnty. 

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

It is therefore available “to compel the performance of a purely 

ministerial duty involving no discretionary right and not requiring 

the exercise of judgment.” Id.; accord Verrier v. Colo. Dep’t of Corr., 

77 P.3d 875, 877-78 (Colo. App. 2003) (involving calculation of 

earned time credit).

¶ 15 The burden on the plaintiff is heavy. The plaintiff must show 

that (1) he has a clear right to the relief he seeks; (2) the defendant 

has a clear duty to perform the act requested; and (3) no other 

remedy is available. Cnty. Road Users Ass’n, 11 P.3d at 437.

¶ 16 With these strictures in mind, we turn to the merits.

¶ 17 First off, the issue whether the DOC must treat all three of 

Owens’ sentences as one continuous sentence isn’t disputed. The 

DOC concedes, as it did in the district court, that Fetzer dictates 
8

that it must do so. And the DOC in fact recalculated Owens’ parole 

eligibility date by doing so.

¶ 18 The real issue, then, is whether the DOC has a clear duty to 

apply the fifty percent multiplier of section 17-22.5-403(1) to that 

one continuous sentence. It does not.

¶ 19 In Fetzer, the court held that although the DOC must treat all 

sentences as one continuous sentence, when those sentences are 

for a mix of offenses that implicate different parole eligibility date 

calculation provisions, “the [DOC’s] decision to apply some form of 

governing sentence theory, or some other theory or device 

altogether, in administering the relevant class of composite 

continuous sentences [is] a matter within its expertise and 

discretion.” Fetzer, ¶ 20.

¶ 20 This case involves offenses, and resulting sentences, subject to 

two different calculation provisions.

¶ 21 Section 17-22.5-403(1) says, as now relevant, that a person 

sentenced for class 3 and class 5 felonies “shall be eligible for parole 

after such person has served fifty percent of the sentence 

imposed . . . .” At first glance, this provision would seem to apply —

as Owens appears to argue — to all three of his sentences. But 
9

subsections (2.5)(a) and (b)(I) say, “[n]otwithstanding subsection (1) 

of this section, any person convicted and sentenced for . . . 

aggravated robbery . . . shall be eligible for parole after such person 

has served seventy-five percent of the sentence imposed” if the 

conviction was for “a class 3 felony offense . . . .”

¶ 22 Owens pleaded guilty to two class 3 felony counts of 

aggravated robbery. So while his sentence for vehicular eluding 

falls within subsection (1)’s fifty percent rule, his two aggravated 

robbery sentences fall within subsections (2.5)(a) and (b)(I)’s 

seventy-five percent rule. Per Fetzer, under these circumstances, 

the DOC had discretion to apply the seventy-five percent rule to the 

one composite, continuous twenty-four-year sentence. In other 

words, it can’t be said that the DOC has a clear duty to apply the 

fifty percent rule to that one composite, continuous sentence.

¶ 23 But wait, Owens says, section 17-22.5-403(2.5)(a) can’t apply 

to his aggravated robbery sentences because there was no finding 

that they were crimes of violence or that he had previously been 

convicted of a crime of violence. For this proposition, he relies on 

subsection (2.5)(b)(II); Outler v. Norton, 934 P.2d 922 (Colo. App. 
10

1997), overruled by Meredith v. Zavaras, 954 P.2d 597 (Colo. 1998); 

and Nowak. But he misreads that provision and the cases.

¶ 24 Section 17-22.5-403(2.5)(a) and (b) says that the seventy-five 

percent rule applies to a conviction and sentence for aggravated 

robbery if (I) the crime “is a class 2 or class 3 felony offense; or (II) 

[the crime] is a class 4 or class 5 felony offense” and the defendant 

“has previously been convicted of a crime of violence as defined in 

section 18-1.3-406, C.R.S.” (Emphasis added.) Thus, a conviction 

for aggravated robbery as a class 3 felony plainly requires 

application of the seventy-five percent rule regardless of whether 

the offense was found to be a crime of violence or the defendant was 

previously convicted of a crime of violence. See Lombard v. Colo. 

Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008) (“Generally, 

we presume the disjunctive use of the word ‘or’ marks distinctive 

categories.”); Pro’s Closet, Inc. v. City of Boulder, 2019 COA 128, 

¶ 12 (same).

¶ 25 Outler is distinguishable because it addressed section 17-22.5-

403(2), which applies to crimes committed after June 7, 1990, and 

before July 1, 2004, and expressly limits application of a 

seventy-five percent multiplier to sentences for certain offenses 
11

where the defendant “has previously been convicted of . . . a crime 

of violence as defined in section 18-1.3-406, C.R.S.” See Outler, 

934 P.2d at 925-26. As discussed, section 17-22.5-403(2.5) isn’t so 

limited.

¶ 26 Nowak is also distinguishable, albeit for a different reason. In 

that case, the court held that the fifty percent multiplier of section 

17-22.5-403(1) applies to two sentences — treated as one 

continuous sentence under section 17-22.5-101 — even when the 

second sentence is imposed after the parole eligibility date for the 

first sentence has passed. Nowak, ¶¶ 1, 4, 35. The court wasn’t 

confronted with any issue as to section 17-22.5-403(2.5) or any 

issue as to sentences implicating both the fifty percent multiplier 

and the seventy-five percent multiplier. And nothing in the court’s 

reasoning conflicts, even implicitly, with our conclusion.

¶ 27 Perhaps Owens means to suggest that because his conviction 

for vehicular eluding was for a class 5 felony, and he hadn’t 

previously been convicted of a crime of violence, section 17-22.5-

403(2.5)(a) can’t be applied to his one continuous sentence. But 

any such suggestion can’t be squared with Fetzer’s holding that 

when the one continuous sentence comprises sentences subject to 
12

different parole eligibility date calculation provisions, the DOC has 

discretion to decide how to calculate the date. Fetzer, ¶ 20. That 

discretion logically includes the option of using the calculation rule 

applicable to the offenses resulting in eighty-three percent of the 

one continuous sentence.4

¶ 28 In sum, Owens hasn’t shown that he has a clear right to the 

relief he seeks or that the DOC has a clear duty to perform the act 

he requests. It follows that he isn’t entitled to a writ of mandamus.

III. Conclusion

¶ 29 The judgment is affirmed.

JUDGE PAWAR concurs.

JUDGE BERGER specially concurs.

 

4 Indeed, one could argue that doing otherwise would result in a 

windfall to the defendant that couldn’t have been intended by the 

legislature — a windfall created by the mere fact that a defendant 

committed a less serious offense in addition to the more serious 

offenses subject to the seventy-five percent rule.
13

JUDGE BERGER, specially concurring.

¶ 30 I join the court’s opinion because the court’s reading of the 

supreme court’s opinion in Executive Director of Colorado

Department of Corrections v. Fetzer, 2017 CO 77, is not 

unreasonable. Obviously, this court is bound by supreme court 

precedent. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.

¶ 31 I write separately to explain why a wide grant of discretion to 

the Department of Corrections (DOC) in these circumstances is 

both unnecessary and inconsistent with the statutory scheme. I do 

not quarrel with the court’s conclusion that the DOC has wide 

discretion in many matters relating to the administration of 

Colorado’s prisons. That discretion is necessary to run a large 

government department, particularly a corrections department. But 

when the General Assembly has definitively spoken on a subject 

and has displaced discretion, courts have a duty to enforce the law 

as written, not to grant either unlimited or even circumscribed 

discretion to executive branch officials to rewrite statutes. See Bd. 

of Cnty. Comm’rs v. Colo. Pub. Utils. Comm’n, 157 P.3d 1083, 1091 

(Colo. 2007) (“Our primary task in interpreting a statute is to give 

effect to the intent of the General Assembly.”).
14

¶ 32 Exercising its exclusive constitutional authority, the General 

Assembly has prescribed that certain offenders, based on their 

crimes and other statutory criteria, are eligible for parole after 

serving fifty percent of their sentences. § 17-22.5-403(1), C.R.S. 

2020. Other offenders, based on their crimes and other statutory 

criteria, must serve seventy-five percent of their sentences before 

being eligible for parole. § 17-22.5-403(2.5), C.R.S. 2020. When a 

single sentence is at issue, these rules are easy to apply. But when, 

as here, an offender is committed on more than one sentence, the 

question is more complicated.1

¶ 33 Owens was committed on three separate sentences, ordered to 

run consecutively to each other; statutory law requires the DOC to 

treat such sentences as one continuous sentence. § 17-22.5-101, 

C.R.S. 2020. The DOC did so in this case and applied the 

seventy-five percent rule to all of Owens’ sentences because at least 

 

1 I do not address the even more complicated subject of application 

of the fifty percent and seventy-five percent rules to concurrent 

sentences, because the facts of this case do not include concurrent 

sentences. But even if those complexities support the wide 

discretion granted to the DOC by the court’s opinion and Fetzer, I 

don’t perceive any reason not to apply the legislature’s clear rules to 

consecutive sentences. 
15

one of his separate sentences was subject to the seventy-five 

percent rule. But his third sentence was subject to the fifty percent 

rule, not the seventy-five percent rule. In doing so, the DOC 

indisputably extended Owens’ parole eligibility date beyond the date 

that would be mandated by the application of the two different 

percentages of time served statutes to each of his sentences. 

¶ 34 The court holds, in reasonable reliance on Fetzer, that the 

continuous sentence rule trumps the separate legislative 

enactments regarding the percentage of the sentence that must be 

served to reach parole eligibility, and that, despite these rather clear 

statutes, the DOC has discretion to apply the seventy-five percent 

rule to the entire, continuous sentence.

¶ 35 But, as I illustrate below, it would not be difficult to apply the 

legislative rules to each of the sentences that comprise the one 

continuous sentence and remain faithful to the one continuous 

sentence rule. Doing so, in my view, respects the legislature’s 

exclusive authority to set the rules for parole eligibility and does 

nothing to prevent the DOC from also complying with the one 

continuous sentence rule.
16

¶ 36 A hypothetical illustrates the mischief created by the grant of 

discretion to the DOC. Take the situation where the offender is 

committed under three consecutive sentences: a twenty-five-year 

sentence for a crime that is subject to the fifty percent parole 

eligibility rule and two separate sentences of five years, one of which 

is subject to the seventy-five percent rule and the other of which is 

subject to the fifty percent rule. As I read Fetzer, the DOC might 

act within its discretion to treat the entire continuous sentence as 

subject to the seventy-five percent rule, resulting in parole eligibility 

after serving 26.25 years.2 But if the percentage of time served 

statutes were applied to each of the sentences, the offender would 

be eligible for parole in 18.75 years. 

¶ 37 The court would say, I’m sure, that no one, much less the 

DOC, has unbridled discretion and that the exercise of such 

discretion is reviewable by this court. But how do the judges of this 

court decide whether the parole eligibility difference reflected in my 

hypothetical would be an abuse of discretion? At what point does 

 

2 For purposes of this illustration, I have ignored any other credits 

to which the offender may be entitled.
17

the DOC abuse its discretion in the application of such a rule? Is 

there some percentage deviation that renders the exercise of 

discretion unreasonable? I can’t perceive any principled basis to 

make such determinations.

¶ 38 We exercise appellate jurisdiction in many circumstances 

requiring us to determine whether a lower court has properly 

exercised its discretion, and sometimes the questions are close. As 

with the operation of executive departments, judicial discretion is 

an essential component of the operation of the judicial branch. But 

when the legislature has spoken on the precise issue and when the 

vagaries of such executive and judicial discretion can be avoided by 

the application of clear statutes, I see no reason or justification to 

go the discretion route.

¶ 39 Accordingly, while I join the court’s opinion, the supreme court 

is not itself bound by Fetzer and I respectfully suggest that either 

the supreme court take a second look at this or the General 

Assembly clarify that it meant what it said when it prescribed the 

percentages of sentences served to determine parole eligibility.