Opinion
TTDCV175007136S
07-12-2018
George FRANK (Inmate #257015) v. STATE of Connecticut, et al.
UNPUBLISHED OPINION
OPINION
Gordon, J.
The self-represented plaintiff, George Frank, brings this declaratory judgment action pursuant to General Statutes § 52-29 against the defendants seeking a declaration that General Statutes § 54-125a(f) is unconstitutional. The plaintiff is presently serving a twenty-five-year sentence for manslaughter in the first degree with a firearm, conspiracy to commit assault in the first degree, and possession of a weapon in a motor vehicle. The plaintiff was sixteen years old at the time he committed these offenses. In support of his claim, the plaintiff relies primarily upon the United States Supreme Court cases of Roper v. Simmons, 546 U.S. 551, 125 S.Ct. 1183, 1616 L.Ed.2d 1112 (2006), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (collectively "Miller-Graham" ), which held, inter alia, that life imprisonment without the possibility of parole for juvenile offenders constitutes cruel and unusual punishment because of a juvenile’s lack of development and capacity for change, and that a juvenile’s sentence must reflect a consideration of these youthful factors. The Connecticut legislature subsequently codified § 54-125a(f) to ameliorate retrospective Miller-Graham sentencing issues by providing all juvenile offenders serving a sentence of greater than ten years eligibility for a parole hearing.
The plaintiff initiated this action against the following defendants: the State of Connecticut, Carleton Giles, of the Board of Pardons & Parole, Dannel Malloy, George Jepsen, the Attorney General, Natasha Pierre, of the Office of Victim Services, Linda Cimino, of the Office of the Victim Advocate, Gail Hardy, of the States Attorney office, and Scott Semple, the Commissioner of Correction.
General Statutes § 54-125a(f)(1) provides in relevant part: "[A] person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes ... may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined ..."
There is no dispute that the plaintiff was a juvenile at the time of his crimes. See State v. Riley, 315 Conn. 637, 640 n.1, 110 A.3d 1205 (2015), cert. denied, 136 S.Ct . 1361, 194 L.Ed.2d 376 (2016) ("[w]e use the term juvenile offenders to refer to persons who committed a crime when they were younger than eighteen years of age").
Although the plaintiff acknowledges that he was given a parole hearing on September 8, 2016, pursuant to § 54-125a(f), he contends that § 54-125a(f) is unconstitutional because it subjects him to cruel and unusual punishment under Miller-Graham because the procedures it provides are constitutionally deficient. More specifically, the plaintiff asserts that his procedural due process rights have been violated because he was unable to cross examine witnesses at his parole hearing, and because he is unable to appeal his denial of parole. The plaintiff claims that these alleged procedural deficiencies violate his rights under the Due Process clause of the United States Constitution, and Article first, § § 9 and 20 of the Connecticut constitution.
On October 30, 2017, the defendants moved to dismiss the plaintiff’s complaint, asserting that the plaintiff lacks standing. The plaintiff objected on December 13, 2017, and the court entertained oral argument on March 29, 2018.
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). Specifically, pursuant to Practice Book § 10-30(a), "[a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process, and (4) insufficiency of service of process."
The defendants contend that the plaintiff’s action should be dismissed for lack of standing. Specifically, the defendants maintain that the plaintiff has not been injured by § 54-125a(f), because his sentence is not, as a matter of law, cruel and unusual. The defendants also assert that because there is no constitutionally protected liberty interest in parole eligibility, procedural due process is not implicated. Finally, the defendants claim that because the plaintiff lacks injury, he also lacks standing. In opposition, the plaintiff contends that because he is or should be afforded protection under Miller-Graham, he has standing to challenge a statute that fails to adequately protect his constitutional rights.
"The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). "If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause ... In addition, because standing implicates the court’s subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." (Citations omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).
The plaintiff challenges the constitutionality of § 54-125a(f). "A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations." (Internal quotation marks omitted.) State v. Korhn, 41 Conn.App. 874, 878, 678 A.2d 492, 494, cert. denied, 239 Conn. 910, 622 A.2d 1010 (1996). Furthermore, "[o]nly members of a class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional ... One who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights ... Aside from the mere question of standing, if his attack is to be successful, a litigant must sustain the burden of proving the facts essential to his standing, that is, that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which he has. This means a right which he proves that he has under the facts of his particular case." (Citations omitted.) Shaskan v. Waltham Industries Corp., 168 Conn. 43, 49-50, 357 A.2d 472, 474-75 (1975).
The plaintiff claims entitlement to the protections of the Miller-Graham line of cases. In State v. Taylor G., 315 Conn. 734, 743-44, 110 A.3d 338 (2015), our Supreme Court summarized the holdings of those cases as follows: "[A]ll three federal cases recognized that, because the eighth amendment prohibition against cruel and unusual punishment is based on the principle that punishment should be graduated and proportioned to the offender and the offense, courts must consider mitigating evidence of youth and immaturity when sentencing juvenile offenders. Thus, applying this principle, the death penalty is a disproportionate sentence for juvenile offenders, regardless of the crime; see Roper v. Simmons, supra, 543 U.S. at 573-75; life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a non-homicide crime; Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011; and mandatory life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a homicide, although a sentence of life imprisonment without the possibility of parole may be deemed appropriate following consideration of the child’s age-related characteristics and the circumstances of the crime. See Miller v. Alabama, supra, [ 567 U.S. at 479-80, 132 S.Ct. 2455] ..." (Emphasis in original.) State v. Taylor G., supra, 743-44.
In State v. Williams-Bey, 167 Conn.App. 744, 780-81, 164 A.3d 9, 31 (2016), cert. granted, 326 Conn. 920, 169 A.3d 793 (2017), the Connecticut Appellate Court held that § 54125a(f) remediates the state and federal constitutional issues raised by Miller-Graham. Id. Moreover, the constitutional protections raised by Miller-Graham are specifically limited to those juveniles who are serving a life-sentence, or its functional equivalent, without the possibility of parole. See State v. Williams-Bey, supra, 167 Conn.App. 744. The phrase "life sentence, or its functional equivalent," as applied to a juvenile, has been ascribed a somewhat flexible meaning. For example, General Statutes § 53a-35b provides that a definite sentence of sixty years constitutes life imprisonment. Similarly, in State v. Riley, 315 Conn. 637, 642, 110 A.3d 1205 (2015), cert. denied, __ U.S. __, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016), it was undisputed the defendant’s sentence of 100 years imprisonment was the functional equivalent of a sentence of life imprisonment without the possibility of parole. In State v. Logan, 160 Conn.App. 282, 293-94, 125 A.3d 581 (2015), however, the Appellate Court determined that a thirty-one-year sentence imposed on a seventeen-year-old juvenile did not violate the principles of Miller-Graham. According to the court: "the defendant’s thirty-one-year sentence, under which he will be released before he reaches the age of fifty, does not approach what the United States Supreme Court described in Roper, Graham, and Miller as the two harshest penalties ... [T]he defendant in the present case, even he is not paroled, will be able to work toward rehabilitation, and can look forward to release at an age when he will still have the opportunity to live a meaningful life outside of prison and to become a productive member of society." Id. See also State v. Rivera, 177 Conn.App. 242, 259, 172 A.2d 260 (2017) (twenty-five-year sentence imposed on juvenile offender was not cruel and unusual punishment based on possibility of parole through § 54-125a[f] ].
Furthermore, while § 54-125a(f) remediates retrospective Miller-Graham issues by providing the opportunity for a parole hearing, see State v. Williams-Bey, supra, 167 Conn.App. 780-81, there is no constitutionally protected right to parole itself. Indeed, the United States Supreme Court has recognized that "[t]here is no constitutionally or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence ... A state may ... establish a parole system, but it has no duty to do so." (Citations omitted.) Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Moreover, "whether and to what extent a state creates a liberty interest in parole by state statute is entirely at the discretion of the state." Baker v. Commissioner of Correction, 281 Conn. 241, 253, 914 A.2d 1034 (2007). "In Baker, our Supreme Court examined Connecticut’s parole eligibility statute ... to determine whether it conferred a liberty interest ... The court saw no indication in § 54-125a that the legislature intended to assure an inmate’s parole eligibility status ... [T]he regulations promulgated by the [parole] board pursuant to [General Statutes] § 54125a(c) do not in any way limit its discretion in parole eligibility decisions." (Citations omitted; footnote omitted; internal quotation marks omitted.) Fuller v. Commissioner of Corrections, 144 Conn.App. 375, 379-80, 71 A.3d 689 (2013). Thus, "parole eligibility ... is not within the terms of the sentence imposed." (Internal quotation marks omitted.) Baker v. Commissioner of Correction, supra, 260. Accordingly, because there is no liberty interest in parole eligibility, procedural due process is not implicated. See Coleman v. Commissioner of Correction, 111 Conn.App. 138, 141, 958 A.2d 790 (2008) ("In order to state a claim for a denial of procedural due process ... a prisoner must allege that he possessed a protected liberty interest, and was not afforded the requisite process before being deprived of that liberty interest").
In the present case, the plaintiff’s action must fail for lack of standing. The plaintiff’s sentence does not fall within the purview of Miller-Graham, and, because there is no liberty interest in parole, he has no procedural due process rights that attach to his parole eligibility. Accordingly, the plaintiff lacks injury, and his case must fail for lack of standing.
The plaintiff’s sentence fails to invoke the protections of Miller-Graham because it is neither a life-sentence, nor a functional equivalent. The plaintiff committed his crime at the age of sixteen and is presently serving a sentence of twenty-five years. The protections afforded to juveniles under Miller-Graham only apply "to life sentences, or [their] functional equivalent, without the possibility of parole." State v. Rivera, supra, 177 Conn.App. 242. Because a sentence of thirty-one years has been held not to invoke the protections of Miller-Graham, see State v. Logan, supra, 160 Conn.App. 293, the court concludes that the plaintiff’s sentence of twenty-five years also fails to constitute the functional equivalent of a life sentence, even if he never qualifies for parole. "Although the deprivation of liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude." State v. Taylor G., supra, 315 Conn. 745-46. The court concludes the plaintiff is not subjected to cruel and unusual punishment by virtue of his sentence.
Because there is no liberty interest in parole, procedural due process is not implicated, and the plaintiff has suffered no injury from the alleged procedural deficiencies within § 54-125a(f). As noted previously, "[i]t is clear that an inmate has no liberty interest in or right to parole release ..." Fuller v. Commissioner of Correction, supra, 144 Conn.App. 380 n. 4. This is because "whether and to what extent a state creates a liberty interest in parole by state statute is entirely at the discretion of the state." Baker v. Commissioner of Correction, supra, 281 Conn. 253. Section 54-125a(f), by its very terms, only affords parole at the discretion of the parole board. Specifically, § 54-125a(f)(1) provides that a juvenile offender serving a sentence of more than ten years "may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined ..." (Emphasis added.) Because there is no liberty interest in parole, no procedural due process rights attach to it; see Coleman v. Commissioner of Correction, supra, 111 Conn.App. 141, and the plaintiff has no claim of injury based upon his inability to cross examine witnesses at his parole hearing, or his inability to appeal his denial of parole. And because the plaintiff lacks injury, he also lacks standing. See Shaskan v. Waltham Industries Corp., 168 Conn. 49 ("[o]ne who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights").
Having carefully considered the plaintiff’s complaint, the defendants’ motion to dismiss, the plaintiff’s objection, and the arguments advanced by the parties at oral argument, the court concludes that the plaintiff has suffered no injury and therefore lacks standing. The defendants’ motion is therefore granted and the plaintiff’s action is hereby dismissed.