Colorado’s second-highest court ruled on Thursday that criminal defendants may agree to relinquish the credits they earned while incarcerated pending trial, despite a state law guaranteeing that such time “shall be deducted” from a person’s sentence.

Kerry Ellis Endsley pleaded guilty in Jefferson County to attempted murder and attempt to disarm a peace officer. His plea deal included a 35-year prison sentence, with “no credit for time served” in jail. He told a judge that he understood and accepted the terms of the plea.

At sentencing, however, Endsley’s public defender suggested a plea deal with no time-served credit was illegal.

Colorado law used to require judges to consider presentence confinement credit when formulating a defendant’s sentence, but there was no obligation for them to award it. As the law exists now, a defendant “is entitled to” credit on their sentence for their time in incarceration before conviction.

“At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled,” the law provides. After which, the amount “shall be deducted from the sentence by the department of corrections.”

District Court Judge Ryan P. Loewer rejected the defense’s concern, explaining that the plea was “contractual between the parties” and he was not going to overturn the agreement.

On appeal, Endsley argued his sentence was illegal because the law gives judges no discretion to exclude presentence confinement credit. He quoted from a 2017 Colorado Supreme Court opinion by now-Chief Justice Monica M. Márquez, who wrote that mandatory presentence confinement credit was important for leveling the playing field between indigent defendants who cannot post bail and their wealthier counterparts.

“Mandatory PSCC also effectuates the statutory penalties set by the General Assembly by ensuring that a defendant who is convicted of an offense is confined for the legislatively prescribed period of time — and no longer,” she wrote. “And mandatory PSCC guards against the added taxpayer expense of paying for superfluous confinement where a defendant serves a lengthy presentence confinement in addition to the legislature’s specified sentence of incarceration.”

A three-judge Court of Appeals panel disagreed with Endsley.

Judge Sueanna P. Johnson noted in the March 26 opinion that defendants may voluntarily relinquish certain rights, like the right to a speedy trial or to counsel. Similarly, they can waive the right to time-served credit in their plea agreement.

“Endsley argues that allowing a defendant to waive PSCC would defeat the legislative intent behind enacting the current version of the PSCC statute: to remove a court’s discretion in awarding PSCC and to require an award of PSCC to eliminate the disparate treatment of indigent individuals who are unable to secure their presentence release from custody. Although we agree that the PSCC statute was amended for this purpose,” she wrote, “Endsley fails to explain why this legislative intent would negate a defendant’s ability to waive the beneficial right to PSCC as part of a negotiation to secure other concessions in a plea agreement.”

The case is People v. Endsley.