Mark Lewis, Plaintiff-Appellant, v. Moses Andre Stancil, the Executive Director of the Colorado Department of Corrections, Defendant-Appellee.
No. 25CA0087
Colorado Court of Appeals
February 12, 2026
2026COA8
El Paso County District Court No. 24CV183, Honorable David A. Gilbert, Judge
February 12, 2026
2026COA8
No. 25CA0087, Lewis v. Stancil — Criminal Law — Inmate and Parole Time Computation — One Continuous Sentence — Earned Time
A division of the court of appeals examines the impact of a nunc pro tunc judgment of conviction on an inmate‘s earned time credits. In this case, the inmate sought mandamus relief requiring the Department of Corrections (DOC) to apply his earned time credits to his “one continuous sentence” — which he asserted comprised sentences from prior convictions for which he was incarcerated as of the nunc pro tunc date and the sentence from his later conviction that the court backdated — even though, after the effective date of the later conviction, the DOC applied the credits to discharge the prior convictions. The division holds that the DOC did not have a clear duty to apply the inmate‘s earned time credits when calculating the inmate‘s parole eligibility date in the later
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.
Division III
Opinion by JUDGE LIPINSKY
Berger*, J., concurs
Taubman*, J., dissents
Announced February 12, 2026
Mark Lewis, Pro Se
Philip J. Weiser, Attorney General, Katherine Fredericks, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 In this case, we address a novel issue regarding the effect of a nunc pro tunc judgment of conviction on an inmate‘s prior convictions. Specifically, we examine the impact of such a judgment on the inmate‘s earned time credits that the Department of Corrections (DOC) applied to discharge the prior convictions between the nunc pro tunc date and the date on which the trial court signed the nunc pro tunc judgment.
¶ 3 Mark Lewis appeals the district court‘s entry of judgment against him in his mandamus action against the DOC through its Executive Director. We affirm.
I. Background
¶ 4 In 2016, a jury convicted Lewis of first degree murder and tampering with physical evidence. On January 28, 2016, the trial
¶ 5 Lewis appealed his conviction in the 2016 case. A division of this court reversed his first degree murder conviction and remanded for a new trial. People v. Lewis, (Colo. App. No. 17CA0219, May 21, 2020) (not published pursuant to
¶ 6 On June 2, 2021, after the division reversed Lewis‘s first degree murder conviction, the DOC, through the parole board, discharged Lewis‘s previous sentences and the tampering with physical evidence sentence based on his accumulated earned time, and it released him to five years of mandatory parole as of April 5, 2021. The April date would have been Lewis‘s mandatory release date if he had not been serving the first degree murder sentence. Lewis remained incarcerated pending his new trial on the murder charge.
¶ 8 Lewis is currently serving the twenty-eight-year second degree murder sentence and remains subject to the five-year parole term on the discharged sentences.
¶ 9 In his first claim for relief, Lewis sought a writ of mandamus to compel the DOC to recalculate his parole eligibility date (PED) under the “one continuous sentence rule” by considering his discharged sentences. In his second claim, he sought a writ of mandamus requiring the DOC to retroactively award him earned time for the time he served for the vacated first degree murder conviction.
¶ 10 The DOC moved to dismiss Lewis‘s case for failure to state claims upon which relief can be granted under
¶ 11 Lewis moved for reconsideration and filed an untimely response to the dismissal motion. The district court stayed the dismissal order while it considered Lewis‘s untimely response to the motion to dismiss. The district court also conducted a hearing on the motion to reconsider. At the conclusion of the hearing, the district court denied the motion and, later that same day, issued an order upholding the dismissal of Lewis‘s claims. (The record does not contain a transcript of the hearing. The lack of a transcript would be fatal to Lewis‘s appeal if, at the hearing, the district court made findings of fact to support its ruling. See, e.g., Levin v. Anouna, 990 P.2d 1136, 1139 (Colo. App. 1999) (holding that, because the plaintiffs failed to include the hearing transcript in the appellate court record, the court would presume the evidence supported the trial court‘s findings and conclusions at the hearing). But because the hearing in this case concerned a motion to dismiss under
¶ 12 Lewis first contends that the DOC improperly calculated his second degree murder sentence and PED under the one continuous sentence rule. He argues that the DOC should calculate his one continuous sentence by construing the second degree murder sentence together with his sentences that were in effect on the nunc pro tunc date of January 28, 2016. If Lewis is correct, the length of his one continuous sentence would be thirty years, eight months, and eleven days, with a start date of May 17, 2013 — the sentencing date in his earliest case.
¶ 13 Second, Lewis contends that he is entitled to a retroactive application of earned time credits to the calculation of the second degree murder sentence, meaning that his PED should be February 16, 2035, and that the DOC should reduce his prison time by “several years.”
II. The Law
A. Standard of Review
¶ 15 “We review de novo a district court‘s dismissal for failure to state a claim under
¶ 16 “The purpose of a motion under
¶ 17 “Mandamus is an extraordinary remedy which may be used to compel performance by public officials of a plain legal duty devolving upon them by virtue of their office or which the law enjoins as a duty resulting from the office.” State ex rel. Norton v. Bd. of Cnty. Comm‘rs, 897 P.2d 788, 791 (Colo. 1995) (quoting Sherman v. City of Colo. Springs Plan. Comm‘n, 763 P.2d 292, 295 (Colo. 1988)).
¶ 18 “The power of the courts to order executive agencies to take any action is extremely limited.” Jones v. Colo. State Bd. of Chiropractic Exam‘rs, 874 P.2d 493, 494 (Colo. App. 1994). Indeed, “[m]andamus lies to compel the performance of a purely ministerial duty involving no discretionary right and not requiring the exercise of judgment.” Verrier v. Colo. Dep‘t of Corr., 77 P.3d 875, 877 (Colo. App. 2003) (quoting Bd. of Cnty. Comm‘rs v. Cnty. Rd. Users Ass‘n, 11 P.3d 432, 437 (Colo. 2000)).
¶ 19 A court will only grant mandamus relief if the plaintiff satisfies all three parts of the applicable 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 must be no other
C. The One Continuous Sentence Rule
¶ 20 “For purposes of administering a criminal convict‘s sentence, this jurisdiction has long required that his separate sentences be
¶ 21 The DOC interprets “sentence” in
III. Analysis
A. Lewis Did Not Establish a Clear Right to a New PED
¶ 22 Lewis‘s first claim for relief fails, as a matter of law, because he does not have “a clear right to the relief sought.” Gramiger, 660 P.2d at 1281.
¶ 23 Lewis argues that, because on January 28, 2016 — the nunc pro tunc date of his second degree murder sentence — he was still serving the sentences that were later discharged, the DOC must consider those sentences and the associated earned time credits when calculating his release date for the second degree murder conviction. Thus, Lewis asserts he is entitled to a writ of
¶ 24 As a matter of law, when the DOC discharged Lewis‘s earlier sentences on June 2, 2021, and he became subject only to the parole term, the earlier sentences were “no longer operable in any sense.” People v. Luther, 58 P.3d 1013, 1016 (Colo. 2002); see
¶ 25 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
¶ 26 In sum, the DOC did not have a clear duty to apply the discharged sentences to the calculation of Lewis‘s second degree murder sentence, and, for that reason, Lewis did not state a claim for mandamus relief when he requested a new PED calculation. See Gramiger, 660 P.2d at 1281.
¶ 27 Accordingly, we conclude that Lewis has not shown a clear right to the PED calculation he requests. See id.
¶ 28 Lewis contends that the DOC was required to apply his previously awarded earned time credits to his second degree murder sentence because the trial court made that sentence retroactive to January 28, 2016. We disagree.
¶ 29 Lewis was not entitled to mandamus relief compelling the DOC to apply his earned time credits when calculating his second degree murder sentence because the application of such credits is within the DOC‘s discretion. See
¶ 31 Accordingly, Lewis‘s earned time argument also fails. See Verrier, 77 P.3d at 878 (holding that the granting of earned time credit “lies in the discretion of the DOC, and [a] plaintiff has no clear right to receive, and the DOC ha[s] no clear duty to grant, earned time credit“); see Gramiger, 660 P.2d at 1281.
¶ 32 Because neither of Lewis‘s contentions stated a claim upon which relief can be granted, the district court properly dismissed them. See Negron v. Golder, 111 P.3d 538, 542 (Colo. App. 2004) (“A motion to dismiss is properly granted when the plaintiff‘s factual allegations cannot support a claim as a matter of law.“);
¶ 33 The judgment is affirmed.
JUDGE BERGER concurs.
JUDGE TAUBMAN dissents.
¶ 34 Because of the technical application by defendant, the Colorado Department of Corrections through its Executive Director (the DOC), of its regulations for calculating an inmate‘s earned time, plaintiff, Mark Lewis, is being penalized for successfully appealing his first degree murder conviction, which after a new trial, resulted in his conviction for second degree murder. Cf. People v. Johnson, 2015 CO 70, ¶¶ 17-18, 363 P.3d 169, 176 (“[C]ourts may not ‘put a price on an appeal.‘” (quoting North Carolina v. Pearce, 395 U.S. 711, 724 (1969))). Accordingly, he has been wrongly deprived of several years of earned time credits, even though the trial court in his second trial made his second degree murder sentence retroactive to the date of his first conviction with a nunc pro tunc designation so that Lewis could be credited with such earned time. Thus, in my view, the district court erred by dismissing Lewis‘s mandamus action, and I would reverse and remand that decision for further proceedings.
¶ 35 More specifically, as discussed below, I believe the district court erred by not applying (1) nunc pro tunc case law to Lewis‘s second degree murder sentence and (2) the rules for mandamus
I. Background
¶ 36 As a preliminary matter, I largely agree with the majority‘s recitation of the factual background. Even so, I believe the following additional details warrant consideration.
¶ 37 On direct appeal, a division of this court reversed Lewis‘s first degree murder conviction, as the majority notes. People v. Lewis, (Colo. App. No. 17CA0219, May 21, 2020) (not published pursuant to
¶ 39 As the majority notes, the second trial resulted in the trial court imposing Lewis‘s sentence of twenty-eight years for second degree murder nunc pro tunc to January 28, 2016, the original sentence date. However, in my view, additional facts in the record of Lewis‘s criminal case are relevant to his complaint and request for mandamus relief. See Norton v. Rocky Mountain Planned
¶ 40 First, at the second trial, as noted, the jury convicted Lewis of second degree murder. Yet the jury also acquitted him of the charge of first degree murder. This suggests that at the first trial, but for the instructional error, the jury might well not have convicted Lewis of first degree murder, and he would not have received a sentence for life without parole in 2016.
¶ 41 Second, the pleadings following the sentencing at the second trial showed that the trial court amended the mittimus multiple times. The court did so because the DOC raised duplication concerns about Lewis‘s presentence confinement credits due to the
II. Nunc Pro Tunc Law
¶ 42 Lewis contends that the trial court‘s nunc pro tunc order from the second trial must be applied to credit him with earned time that he would have earned if he hadn‘t been wrongly convicted of first degree murder. I agree.
¶ 43 Nunc pro tunc (“Latin [for] ‘now for then‘“) is defined as “[h]aving retroactive legal effect through a court‘s inherent power.” Black‘s Law Dictionary 1283 (12th ed. 2024). Colorado‘s appellate cases have described two aspects of a nunc pro tunc order.
¶ 44 One aspect is to “ameliorate harm done to a party by court delays or clerical errors.” Guarantee Tr. Life Ins. Co. v. Est. of Casper, 2018 CO 43, ¶ 27, 418 P.3d 1163, 1173; see People v. Sherrod, 204 P.3d 466, 468 n.3 (Colo. 2009). This means that a nunc pro tunc order “is normally made to correct an omission from
¶ 45 The second and broader aspect of nunc pro tunc orders, which applies here, provides that such orders are “given the same force and effect as if entered at the time the court‘s decision was originally rendered.” Dill v. Cnty. Ct., 541 P.2d 1272, 1273 (Colo. App. 1975); see Stone v. Currigan, 334 P.2d 740, 743 (Colo. 1959) (“Except as to the rights of third persons, a judgment nunc pro tunc is retrospective, and has the same force and effect, to all intents and purposes, as though it had been entered at the time when the
¶ 46 The district court concluded that the DOC may disregard Lewis‘s prior sentences because they were discharged and could not be revived by the nunc pro tunc order. See People v. Luther, 58 P.3d 1013, 1016 (Colo. 2002); Diehl v. Weiser, 2019 CO 70, ¶¶ 19-26, 444 P.3d 313, 318-19. I agree that a nunc pro tunc order in one case has no impact on the operability of sentences issued in other cases.
¶ 47
¶ 48
¶ 49 I conclude that these details sufficiently established that the mittimus required the DOC to treat the nunc pro tunc sentence the same as the prior sentences, meaning as though it had been issued concurrently with the prior sentences. See Meredith v. Zavaras, 954 P.2d 597, 603 (Colo. 1998) (To “permit the DOC to decline to comply with [district court orders] . . . would undermine the power of the judicial system to interpret the laws and impose criminal sentences.“); see also People v. Pate, 878 P.2d 685, 694 (Colo. 1994) (“It is axiomatic that the judiciary has the exclusive power to impose sentences which fall within the limits determined by the General Assembly.“).
¶ 50 In my view, the district court erred by concluding that Lewis was not entitled to mandamus relief.
¶ 51 Mandamus only applies here if Lewis has a clear right to relief, the DOC has a clear duty to perform, and Lewis has no other available remedy. See Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo. 1983).
A. Clear Right to Relief and Duty to Perform
¶ 52 Despite multiple amendments, the mittimus consistently stated that the nunc pro tunc sentence of twenty-eight years must run concurrently with the prior sentences. The trial court further stated that the inclusion of the nunc pro tunc provision on the mittimus was intended to ensure that the DOC would entitle Lewis to good or earned time credits retroactively to the date of his original sentence. Also, the DOC was aware of the nunc pro tunc provision‘s retrospective effect given that it raised concerns several times about the nunc pro tunc provision‘s impact on Lewis‘s presentence confinement credits.
¶ 53 In this mandamus action, Lewis requested that the district court compel the DOC to adhere to computations it had already
¶ 54 For these same reasons, the DOC had an obligation under the trial court‘s order to adhere to the one continuous sentence statute.
¶ 55 Further, the DOC had no discretion to withdraw Lewis‘s earned time credits because they had vested under section
¶ 56 In my opinion, the unique circumstances presented here, viewed in the light most favorable to Lewis, establish that Lewis has a clear right to relief, and the DOC has a clear duty to apply the PED and earned time credits calculations that Lewis seeks. See Gramiger, 660 P.2d at 1281.
B. No Other Remedies Available
¶ 57 Last, no other remedies are available to Lewis, and the DOC has not suggested any that could apply. See id. Indeed, if the error
¶ 58 While the barrier to providing mandamus relief is high, it is not insurmountable. Although mandamus relief is infrequently granted, it has been deemed appropriate when a sentence calculation by the DOC contradicts the one continuous sentence statute. See Fetzer, ¶¶ 29-36, 399 P.3d at 748-49 (holding that the inmate had a clear right to mandamus relief when the DOC improperly construed the one continuous sentence statute to calculate the inmate‘s PED); Fields v. Suthers, 984 P.2d 1167, 1173 (Colo. 1999) (finding that mandamus relief was appropriate and that the DOC had a duty to correctly calculate the inmate‘s PED). Thus, it is also appropriate here.
¶ 59 Accordingly, I believe nunc pro tunc law must be applied to Lewis‘s twenty-eight-year sentence and that he is entitled to mandamus relief. See Fields, 984 P.2d at 1173. I thus conclude that Lewis has stated plausible grounds for relief and would reverse the judgment of the district court and remand for further proceedings.