Colorado’s second-highest court grappled last week with the framework for calculating a defendant’s earliest possible parole date in light of two intersecting legal principles — a judge’s ability to make an order retroactive, and the requirement that separate, simultaneous sentences be treated as one continuous sentence.

By 2-1, a three-judge Court of Appeals panel decided a defendant’s successful appeal of his conviction restarted the clock on the determination of his parole date because of the break between prison sentences — even though a second trial eliminated any gap between those sentences on paper.

Mark Lewis is serving a 28-year prison sentence for second-degree murder.

In 2024, he challenged the Colorado Department of Corrections’ calculation of his parole-eligibility date, based upon the sequence of events that began in May 2013.

At that time, Lewis began serving prison sentences for convictions out of Arapahoe County. Then, in 2016, an Adams County jury convicted him of first-degree murder and related offenses, for which he received life without parole. However, the Court of Appeals ordered a new trial in 2021, reversing the murder conviction.

At that point, the corrections department released Lewis from prison on parole, based on accumulated earned time from all of his other sentences. Lewis remained incarcerated pending his retrial for murder, and a jury convicted him of a lesser murder charge in 2021.

In sentencing Lewis anew, his trial judge imposed the 28-year sentence “nunc pro tunc” — literally meaning “now for then,” but practically meaning the sentence was backdated to January 2016, when Lewis received his initial murder sentence.

However, the various developments gave rise to a mathematical dilemma: What is Lewis’ new parole-eligibility date?

Representing himself, Lewis filed suit against the corrections department in February 2024, alleging what the proper calculation looks like:

• His earliest sentences began in 2013, and state law required the department to treat his various prison terms as one continuous sentence from that date
• The second murder sentence, imposed “nunc pro tunc” to 2016, should be a continuation of the other sentences in effect at that time
• After applying the percentages and pretrial confinement credits applicable to the 2013 sentences and the retroactive 2016 sentence, Lewis’ parole-eligibility date would be in February 2035
• Although Lewis was not eligible for earned time on his former lifetime murder sentence, he should now receive those credits for his one continuous sentence as it exists following retrial

The Court of Appeals panel’s majority disagreed with him.

Judge Lino S. Lipinsky de Orlov, writing for himself and Judge Michael H. Berger, believed the imposition of a sentence retroactive to 2016 did not change the fact that Lewis was no longer serving his other prison sentences at the time of his second trial.

“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 court entered the latter sentence nunc pro tunc,” wrote Lipinsky in the Feb. 12 opinion.

Further, the majority concluded the retroactive sentence did not mean that any earned time could be applied to Lewis’ current conviction. Lipinsky suggested that under Lewis’ logic, “the discharge of his previous sentences would need to be reversed so the credits could be applied to the second degree murder conviction.”

Judge Daniel M. Taubman argued in dissent that the majority failed to apply a key principle behind “nunc pro tunc” orders: they affect a person’s rights as of the retroactive date.

“That means treating the sentence ‘as if’ it were entered concurrently with the prior sentences when they were active,” he wrote. “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.”

Taubman believed Lewis’ framework for calculating his parole-eligibility date was correct, and he would have reinstated Lewis’ challenge to his parole-eligibility date and the denial of his earned time from his prior sentences.

“Precluding him from having the opportunity to pursue such relief essentially amounts to penalizing him for successfully appealing his first degree murder conviction,” Taubman concluded.

The case is Lewis v. Stancil.