He admits he did the crime, but says he served too much time

ARAPAHOE COUNTY – The 18th Judicial District sentenced an Aurora man to six years and ten months in community corrections and prison, although the law says he only owed the state four years.

James McKay says he was a crack addict in the late 90s when he tried to rob a convenience store eight years ago.

"Broad daylight, two o'clock in the afternoon, gas station filled with people," he said. "That's how the addiction had me."

McKay knocked the clerk to the floor but failed to get any money from the cash register.

He was caught and pled guilty to second-degree burglary and third-degree assault. Judge Gerald Rafferty sentenced him to concurrent terms of four years for burglary and six years for the assault.

Apparently, the judge, public defender and prosecutor all failed to notice that the assault was a class six felony, for which the maximum sentence is three years.

"Sentencing mistakes do happen," said 9NEWS Legal Analyst Scott Robinson. "Generally, they're picked up pretty quickly. It's pretty rare that any inmate has to do more time than he really is supposed to do."

Robinson says it is possible that Rafferty intended to sentence McKay for the longer term on the burglary charge.

"But as it was imposed, this was clearly an illegal sentence," Robinson said. "Everyone in the courtroom that day should have known it."

McKay served six years in community corrections without realizing the error in sentencing. Long after he should have been released from custody, he violated the rules of his drug rehabilitation program. He tested positive for marijuana and was returned to Arapahoe County District Court, where he appeared before Judge William Sylvester.

McKay was startled by what he learned in court.

"The words out of Judge Sylvester's mouth were, 'Mr. McKay, did you know that you were illegally sentenced?' 'No I didn't. What do you mean?'"

Court records show that Sylvester corrected the sentence for the assault from six years to three years; but instead of being released, McKay was sent to prison for the marijuana violation. In Canon City, McKay huddled with a jailhouse lawyer and filed a handwritten motion asking for his release.

After ten months in prison, he won another hearing before Sylvester. This time he was released.

"I have not received an apology," said McKay. "I've received nothing but my freedom, which means a lot to me, but I feel they owe me so much more."

McKay says he found a provision in Colorado court rules that says he is owed $1,200 a day for every day he was wrongfully imprisoned.

"That's $1.3 million right there!" he claimed.

So far, he has been unable to find an attorney who will represent him in a lawsuit against the legal system.

"Only in a case where an individual was totally innocent and imprisoned for years is there a meaningful lawsuit," said Robinson. "Juries don't like giving guilty people anything, even if they had to spend a few extra years behind bars."

The gas station attendant who was assaulted by McKay was surprised when 9NEWS informed her of the court's error. She says she did not know he had been given such a lengthy sentence.

9Wants to Know asked Judges Rafferty and Sylvester to talk about the sentencing error. They replied that it would be inappropriate for them to comment on the case. The district attorney and public defender also did not comment.

John Gleason of Colorado's Office of Attorney Regulation says that defendants with complaints against judges or other court officials can file a complaint with his office or with the Colorado Commission on Judicial Discipline. Both agencies can discipline officials for gross negligence, but neither has the authority to assess damages.