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Duffy v. State3/21/1990
of Duffy's motion for correction of his sentences pursuant to Rule 36, W.R.Cr.P., is affirmed.
The majority, again in regard to maximum and minimum sentences and the present Duffy ninety percent rule in good time, states:
Duffy has not argued that he is entitled to be released now if his good time earned is deducted from his maximum sentence. Neither has he presented any evidence that would indicate that he is presently being denied any good time to which he would be entitled under the statute and the rules. Under those circumstances, Duffy's argument does not present a cognizable claim that is ripe for our review. It will be appropriate for him to seek that relief when he can establish that the combination of good time added to the time served demonstrates that he has served the maximum term and is entitled to release. The record does not demonstrate any invasion of a constitutional liberty interest at this time that would justify a conclusion that Duffy's sentence is illegal.
The majority discussion appears to misunderstand the real issue of Duffy I and its continued effect since the subsequent adoption of the Duffy amendment. Originally, the legislature adopted an indeterminate sentencing process which, in its nature, gave discretion to the executive probation department. What the Duffy sentence did was to remove the legislatively directed system of indeterminate sentencing and consequent involvement of the executive through parole opportunities of the convicted individual. Special good time does not create a parole date; it only affects how much parole discretion is available to the executive. Regular good time reduces that discretion spread, while special good time increases the spread by lowering the minimum sentence and, as a consequence, only provides a right for the individual to be considered for parole but not a right to be released.
First, it should be understood that requiring regular good time to those eligible is routine and special good time is highly discretionary. Most likely, special good time will only be accrued when good time is earned; but, unlike regular good time, cannot be withdrawn. In this case where Duffy was given the maximum sentence of thirty-five years for both minimum and maximum sentence, and assuming that he received maximum of both, e.g., good time — ten days per month and fifteen days special good time per month — he would be eligible for parole board review after an incarceration of seventeen years and nine months, and would be released after twenty-two years and four months flat time.
The Duffy statute for the thirty-five year sentence as a ten percent differential would have required the minimum to be three and one half years less or not more than thirty-one years and six months, and would not have changed the flat time or maximum release date. It would have, however, increased the period during which parole could have been considered from four years and seven months to seven years and ten months.
What all of this means to Duffy, age twenty-two at sentencing in 1986, is if he was released from Colorado confinement at the earliest date, December 1986, which likely occurred, he would, by the Duffy rule, possibly be eligible for parole in 2004 at age forty or released in 2009 at age forty-five. By application of the Duffy statute, he could be considered for parole about three years earlier in 2001 at age thirty-seven. Obviously, all of this is subject to the governor's power of commutation and the capacity of the state to continue to expand its prison system. At whatever age he might be released, after about twenty years in confinement, it should be expected he will continue to be a publ
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