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23CA1028 Peo v Soghigian 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals Nos. 23CA1028, 23CA1026, 23CA1027 & 23CA1029
El Paso County District Court Nos. 18CR3868, 17CR6882, 17CR7226 &
18CR3876
Honorable David A. Gilbert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Ben Robert Soghigian,

Defendant-Appellant.

ORDER AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

K. Andrew Fitzgerald, Alternate Defense Counsel, Grand Junction, Colorado for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Ben Robert Soghigian, appeals the postconviction

court’s order summarily denying his Crim. P. 35(c) motion for an

earned time credit review by the Department of Corrections (DOC).

We affirm.

I. Background

¶2 In a global disposition, Soghigian pleaded guilty to (1) forgery,

(2) theft, (3) identity theft and aggravated motor vehicle theft, and

(4) aggravated motor vehicle theft in four cases — in return for the

dismissal of numerous charges and eight other Colorado cases. In

November 2019, the district court sentenced Soghigian to

consecutive prison terms of three years, nine years, one year, and

three years, respectively — an aggregate sentence of sixteen years in

the custody of the DOC — in accordance with the plea agreements.

The court ordered that Soghigian’s sentence would run

concurrently with an eight-year sentence he had already begun

serving in Arizona.

¶3 Soghigian remains imprisoned in Arizona. In 2022, he timely

filed a pro se Crim. P. 35(c) petition that was supplemented by

counsel. As relevant here, he claimed that his Colorado sentences

were “illegally imposed” because the DOC had not reviewed his

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Arizona performance record to calculate his eligibility for any

earned time credits. See §§ 17-22.5-302(3), 17-22.5-405(3), C.R.S.

2023 (“the earned time statutes,” providing that earned time credit

reviews shall be conducted annually); see also Crim. P. 35(c)(2)(I).

He also claimed, as he does on appeal, that the DOC’s failure to

evaluate his eligibility for earned time credit pursuant to section

17-22.5-302 is an as-applied violation of his constitutional right to

equal protection. For relief, Soghigian seeks an order directing the

DOC to comply with the earned time statutes.

¶4 The postconviction court denied the motion in a written order.

As we read the order, the court found that Soghigian’s claims were

not cognizable under Crim. P. 35(c) because he substantively

challenges the DOC’s earned time review procedures — not the

“sentence imposed” or the constitutionality of the earned time

statutes. See Crim. P. 35(c)(2)(I), (II); but see People v. Turman, 659

P.2d 1368, 1370-71 (Colo. 1983) (interpreting pre-1979 law and

concluding that a postconviction court has jurisdiction to consider

whether a prisoner’s constitutional rights have been violated by the

application of the earned time statutes). We agree that Soghigian

does not claim that the sentence imposed was unlawful, and we

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conclude that the proper avenue for his claims is an action against

the DOC.

II. Discussion

¶5 In his initial motion, Soghigian claimed that the confinement

portion of his sentence had been fully served — a claim properly

raised under Crim. P. 35(c). See Crim. P. 35(c)(3) (providing that a

defendant may move for postconviction relief when claiming “a right

to be released”). But in his supplemental motion and on appeal, he

abandoned that claim. His remaining claims assert only that (1) the

DOC is violating his statutory right to earned time credit reviews,

and (2) by doing do, the DOC is applying the earned time statutes in

an unconstitutional manner. For three reasons, we conclude that

the proper avenue for these claims is a civil action against the DOC,

not a postconviction claim.

¶6 First, earned time credit decisions “lie[] in the discretion of the

DOC . . . .” Verrier v. Colo. Dep’t of Corr., 77 P.3d 875, 878 (Colo.

App. 2003); accord Renneke v. Kautzky, 782 P.2d 343, 344-45

(Colo. 1989); see § 17-22.5-405(3) (the DOC “may grant, withhold,

withdraw, or restore . . . an earned time deduction from the

sentence imposed”). Neither the prosecution nor the district court

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have a role in reviewing a prisoner’s performance or in calculating,

awarding, or withdrawing earned time credits. The DOC is in the

best position to explain its earned time review procedures and the

rational basis for any disparate treatment of out-of-state prisoners.

And the relief Soghigian seeks is an order directing the DOC to do

something. Accordingly, the DOC is at least a necessary and proper

party to this action. See C.R.C.P. 19.

¶7 Second, we disagree that Soghigian stated a claim for relief

under Crim. P. 35(c). “[A] party aggrieved under Crim. P. 35(c) must

claim either a right to be released or to have a judgment of

conviction set aside on one of the grounds enumerated in Crim. P.

35(c)(2).” Naranjo v. Johnson, 770 P.2d 784, 787 (Colo. 1989)

(holding that Crim. P. 35(c) is not an avenue for relief for a

defendant claiming parole eligibility and arguing that the parole

statutes are unconstitutional). But Soghigian abandoned his claim

that he had a right to be released.

¶8 He argues that Crim. P. 35(c)(2)(I) encompasses his claims, but

he does not truly allege that his sentence was “imposed in violation

of the Constitution or laws of the United States or the constitution

or laws of this state.” Proper Crim. P. 35(c)(2)(I) sentencing claims

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concern the sentence imposed by the court, not the DOC’s

administration of a sentence. Compare People v. Kennedy, 2023

COA 83M (reviewing under Crim. P. 35(c)(2)(I) whether a

twenty-nine-year sentence violates the Eighth Amendment), with

Owens v. Carlson, 2022 CO 33, ¶¶ 21, 44 (granting mandamus

relief to a defendant seeking recalculation of his parole eligibility

date). Moreover, earned time credit, like presentence confinement

credit, “is not a component of a sentence.” See People v. Baker,

2019 CO 97M, ¶ 11. Because Soghigian challenges the DOC’s

administration of his earned time credit reviews, he does not raise

cognizable Crim. P. 35(c) claims.

¶9 Third, we are persuaded by the divisions of this court holding

that when a defendant challenges the acts or omissions of the DOC,

the defendant’s claim is not cognizable under Crim. P. 35(c) — the

claim must be brought in a civil action against the DOC. See People

v. Carillo, 70 P.3d 529, 530-31 (Colo. App. 2002) (concerning the

DOC’s collection of restitution from the defendant’s inmate bank

account); People v. Huerta, 87 P.3d 266, 267 (Colo. App. 2004)

(contesting the DOC’s application of a parole statute); see also

People v. Melnick, 2019 COA 28, ¶¶ 6-7 (challenging the parole

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board’s decision not to grant a parole hearing); cf. People v.

Shackelford, 729 P.2d 1016, 1017-18 (Colo. App. 1986) (until the

defendant claims a right to be released, his request to compel the

DOC to recalculate good-time credits is not ripe). Soghigian’s

claims concern the DOC’s inaction under section 17-22.5-302, and

he seeks relief against the DOC. Therefore, his claims are not

cognizable under Crim. P. 35(c). See Carillo, 70 P.3d at 530-31.

¶ 10 Although the cases on which Soghigian relies — People v.

Frank, 30 P.3d 664 (Colo. App. 2000), People v. Maestas, 920 P.2d

875 (Colo. App. 1996), and People v. Alderman, 720 P.2d 1000

(Colo. App. 1986) — reviewed earned time claims in a Crim. P. 35(c)

proceeding, none of those cases address whether postconviction

proceedings are the proper avenue to raise such claims. We found

one case that appears to support Soghigian’s position — Turman —

but that case is factually distinguishable because there, the

defendant sought good time credit for time spent in presentence

confinement. See Shackelford, 729 P.2d at 1018. Here, Soghigian

seeks an earned time credit review for time spent in an out-of-state

prison.

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III. Disposition

¶ 11 The order is affirmed.

JUDGE BERNARD and JUDGE BERGER concur.

23CA1028 Peo v Soghigian 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals Nos. 23CA1028, 23CA1026, 23CA1027 & 23CA1029

El Paso County District Court Nos. 18CR3868, 17CR6882, 17CR7226 &

18CR3876

Honorable David A. Gilbert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Ben Robert Soghigian,

Defendant-Appellant.

ORDER AFFIRMED

Division A

Opinion by CHIEF JUDGE ROMÁN

Bernard* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 12, 2024

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

K. Andrew Fitzgerald, Alternate Defense Counsel, Grand Junction, Colorado for

Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2024.

¶ 1 Defendant, Ben Robert Soghigian, appeals the postconviction