When an Idaho inmate has multiple consecutive sentences, each with both a fixed and an indeterminate portion, how do the fixed and indeterminate parts get stacked for parole eligibility?
Plain-English summary
The Commission for Pardons and Parole asked the AG to interpret a tricky piece of Idaho's Unified Sentencing Act (Idaho Code § 19-2513). When a court imposes consecutive sentences for multiple offenses, each with its own fixed minimum and indeterminate portion, how should those pieces be stacked together?
Three theoretical models had been floated. Model A: serve the first fixed term, then the first indeterminate term (with parole hearing), then the second fixed term, then the second indeterminate term (with another parole hearing). Model B: serve all the fixed terms back-to-back, then have a single parole hearing that covers all the consecutive indeterminate terms taken together. Model C: serve both the fixed and indeterminate portions of each count to completion before starting the next count.
The AG concluded Model B is correct. The statutory language is the clincher: "all minimum terms of confinement shall be served before any indeterminate periods commence to run." That sentence is hard to read any other way. Model A and Model C both contradict it.
The AG rejected Model C even though some dicta in State v. Alberts (Ct. App. 1991) seemed to support it. Idaho's Court of Appeals had suggested in passing that an inmate must serve both the fixed and indeterminate portions of the first count before parole on a consecutive count could be considered. The AG concluded that reading would either turn the first indeterminate term into a de facto fixed term (because parole during it would be futile while another fixed term loomed) or force wholesale commutations of first-count indeterminate terms. Both outcomes contradict the statute's truth-in-sentencing purpose. Criminal statutes are strictly construed (State v. Charboneau, 1989), and the strict reading of § 19-2513 is incompatible with Alberts' dicta.
A practical observation closes the opinion: indeterminate sentences are not required by § 19-2513. If a sentencing judge wants absolute certainty about the timing of consecutive sentences, the judge can simply impose fixed terms for the counts that will be followed by consecutive sentences.
Currency note
This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Idaho's Unified Sentencing Act (Idaho Code § 19-2513) replaced the older flat-indeterminate-sentence model with a hybrid: a fixed minimum term (during which the inmate is not eligible for parole) followed by an indeterminate term (during which the Commission for Pardons and Parole has discretion to grant parole at any time). The act's principal goal is "truth in sentencing": the sentencing judge announces a hard floor on confinement, the public can rely on that floor, and discretionary release happens only after the floor.
The consecutive-sentence question is what happens when a defendant gets, say, two-plus-one and one-plus-three sentences (a two-year fixed term followed by one-year indeterminate term, then a one-year fixed term followed by a three-year indeterminate term). The relevant language in § 19-2513 directs that "all minimum terms of confinement shall be served before any indeterminate periods commence to run." That governs the math.
The companion statute is Idaho Code § 20-223, which gives the Commission for Pardons and Parole discretion to grant parole at any time during the indeterminate term. Combined with the AG's prior Opinion 91-8 (which held that the Commission can hold a parole hearing before eligibility kicks in), the practical mechanic under Model B is: when the inmate's last fixed term is about to expire, the Commission holds a single hearing covering all the consecutive indeterminate terms; if parole is granted, release happens on the eligibility date.
Common questions
What's the practical difference between Model A, B, and C?
Model A creates two separate parole decisions during a sentence with two consecutive counts. Model B creates one. Model C has the inmate serving both portions of count one fully (no parole during count one's indeterminate period) before count two even starts. The differences matter for both the inmate (Model B is most favorable, Model C least) and for the Commission's workload.
Why doesn't Alberts control?
Because Alberts addressed Model C only in dicta, not in a holding. The Court of Appeals' actual decision in Alberts was on a different question. The AG concluded that the statute's plain language overrides any non-binding implication in Alberts. If the issue ever reached the Idaho Supreme Court, the AG predicted, the statute would prevail.
Can a sentencing judge force Model C anyway?
The AG's closing point is essentially yes, but by a different mechanism. If the judge wants a defendant to serve all of count one (both fixed and indeterminate) before count two starts, the judge can impose a fixed sentence for count one (no indeterminate term at all). § 19-2513 does not require an indeterminate component on every count.
What about commutation?
Idaho Constitution art. 4, § 7 gives the Commission for Pardons and Parole the power to commute. The AG does not see commutation as the right tool to bridge the consecutive-sentence question. Wholesale commutations would undermine truth in sentencing.
Citations
Idaho Constitution: art. 4, § 7 (commutation power vested in the Commission for Pardons and Parole).
Idaho statutes: Idaho Code § 19-2513 (Unified Sentencing Act, including the consecutive-sentence language); Idaho Code § 20-223 (Commission's discretionary parole authority).
Idaho cases: State v. Alberts, ___ Idaho ___, 824 P.2d 135 (Ct. App. 1991) (Idaho Court of Appeals; the dicta the AG declined to follow); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989) (Idaho Supreme Court; criminal statutes must be strictly construed).
Other authorities: Idaho Att. Gen. Op. No. 91-8, Annual Report (1991) (Commission may hold pre-eligibility parole hearing).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP92-01.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
ATTORNEY GENERAL OPINION NO. 92-1
TO: Olivia Craven West
Executive Director
Commission for Pardons and Parole
280 N. 8th St., Suite 140
Boise, ID 83720
Per Request for Attorney General's Opinion
QUESTION PRESENTED
When a person is sentenced to consecutive sentences for multiple criminal offenses, with a fixed and indeterminate term provided for in each sentence, how are the fixed and indeterminate portions of the sentences to be calculated for purposes of determining parole eligibility?
CONCLUSION
The fixed term of each sentence must be served consecutively before the person is eligible for parole consideration. Once all of the fixed terms have been completed, the person's indeterminate terms are added to determine the maximum time the person may serve. The person is eligible for parole at all times during the pendency of the indeterminate sentences.
ANALYSIS
You have requested an opinion regarding Idaho's Unified Sentencing Act. Specifically, you have asked for an interpretation of the following language in Idaho Code § 19-2513 pertaining to consecutive sentences:
[I]f consecutive sentences are imposed for multiple offenses, the court shall, if required by statute, direct that . . . each consecutive sentence contain a minimum period of confinement; in such event, all minimum terms of confinement shall be served before any indeterminate periods commence to run.
You have asked how the fixed and indeterminate portions of consecutive sentences are to be juxtaposed by the Department of Correction and the Parole Board in the determination of the date the prisoner becomes eligible for parole.
By way of illustration, you have posed a hypothetical situation in which a person is sentenced to a minimum period of confinement of two years followed by an indeterminate period of one year, which is followed by a consecutive sentence of a minimum period of one year followed by an indeterminate term of three years. When does such a person become parole eligible? Is it after two years (the period of time after the first fixed term), three years (the period of time after both fixed terms are added together), or four years (the period of time after both fixed terms and the first indeterminate term)? Of course, the scenario becomes even more complicated when three or more sentences are ordered to be served consecutively.
Several mutually exclusive theoretical models have been proposed for the interpretation of this section. The first is alluded to in your letter. Under this model, the prisoner will first serve a period of years equivalent to the full amount of all consecutive fixed terms. Then, he will be required to serve each indeterminate term consecutively, with separate determinations regarding parole for each count.
Under this model, the first indeterminate term would be treated by the commission in virtually the same manner as a fixed term, because the parole commission will not release the prisoner when he has yet to serve another indeterminate term.
A second model would add together all the indeterminate terms once the combined total of fixed terms has been served. This model would call for a single parole determination, which would apply to all consecutive indeterminate sentences.
Yet a third model was implied in dicta in the recent decision of the Idaho Court of Appeals in State v. Alberts, ___ Idaho ___, 824 P.2d 135 (Ct. App. 1991). The court seemed to suggest that a prisoner must serve both the fixed and indeterminate portions of the first count before becoming eligible for parole upon completion of the consecutive fixed term. Under this approach, only in those cases where a person has had his indeterminate sentence formally commuted under art. 4, § 7, of the Idaho Constitution will he be relieved from serving the first sentence in full before beginning the second sentence.
There is a complete lack of firm authority supporting any of these theoretical models. Arguments can be made for each of them. For example, the third model is closest to a true consecutive sentence. And it does seem to have support in Alberts.
On the other hand, either the first or second model seems required by a close reading of the statute: "[A]ll minimum terms . . . shall be served before any indeterminate periods commence . . . ."
Criminal statutes must be strictly construed. State v. Charboneau, 116 Idaho 129, 153, 774 P.2d 299, 322 (1989). Given the clarity of the language mentioned above, it is the opinion of this office that the third theoretical model, implied in Alberts, is contrary to the express terms of Idaho Code § 19-2513. Under the third model, the parole commission would have to engage in the futile exercise of deciding whether to grant parole to a prisoner upon the commencement of the first indeterminate term, while a second fixed term loomed on the horizon. The likely result of the Alberts scheme would be the automatic transmutation of the first indeterminate term into a de facto fixed term, or in the wholesale granting of commutations of the first indeterminate term. Clearly, this would be contrary to the reason the Unified Sentencing Act was adopted in the first place, truth in sentencing.
If all fixed terms are to be served first, what then should be done when a prisoner has served his consecutive fixed terms?
The parole commission has the power to place the prisoner on parole at any time during the pendency of an indeterminate term. Indeed, a prisoner need not spend a single day in prison on an indeterminate sentence. (See Att. Gen. Op. No. 91-8.) Such a decision is left entirely in the hands of the commission. Idaho Code § 20-223. This being the case, there is no practical reason why the commission cannot make determinations regarding the parole status of a prisoner immediately upon (or even shortly before) the termination of the fixed portions of the sentences in a single hearing, even in those cases involving consecutive indeterminate terms. In other words, the second theoretical model mentioned above is the most reasonable as it is both practical and in keeping with the statute.
In summary, it is the opinion of this office that when two sentences are ordered to be served consecutively, and when they both contain fixed and indeterminate terms, the fixed sentences must be served first, one after the other. Then, the parole commission shall determine when and if parole will be granted at any time during the pendency of the consecutive indeterminate terms in a single proceeding.
As a final note, it should be pointed out that indeterminate sentences are not required by Idaho Code § 19-2513. Therefore, the district courts have the power to assure absolute certainty in sentencing by simply ordering fixed terms for those counts that are to be followed by consecutive sentences.
AUTHORITIES CONSIDERED
-
Idaho Constitution:
Art. 4, § 7. -
State Statutes:
Idaho Code § 19-2513.
Idaho Code § 20-223. -
Idaho Cases:
State v. Alberts, ___ Idaho ___, 824 P.2d 135 (Ct. App. 1991).
State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). -
Other:
Idaho Att. Gen. Op. No. 91-8, Annual Report (1991).
DATED this 30th day of April, 1992.
LARRY ECHOHAWK
Attorney General
State of Idaho
Analysis by:
MICHAEL KANE
Deputy Attorney General
Chief, Criminal Law Division