Opinion
No. CV05-4000348 S
June 15, 2005
MEMORANDUM OF DECISION
On February 10, 2005, the petitioner filed a petition for a writ of habeas corpus; it has not been amended. The complaint raises the single claim that the respondent warden has incorrectly determined the petitioner's discharge date. This incorrect determination has resulted, according to the petition, from the respondent's conclusion that the petitioner's controlling sentence is good time ineligible. The respondent's return denies this claim and asserts as a defense that the petitioner's discharge date has been correctly calculated in accordance with the applicable statutes. The petitioner's reply to the return denies respondent's asserted defense.
The matter came before this court on June 6, 2005, for a trial on the merits. Based upon the testimony by Department of Correction Records Specialist Michelle Deveau, as well as the documents entered into evidence, the court makes the following findings of fact.
FINDINGS OF FACT
1. In docket number CR 96-94223, the petitioner was charged with one count of sexual assault in the first degree in violation of C.G.S. § 53a-70(a)(2), one count of sexual assault in the third degree in violation of C.G.S. § 53a-72a(a)(1), and two counts of the crime of risk of injury to a child in violation of C.G.S. § 53-21(1). By way of the information, the prosecuting authority alleged that the offense date for each count was "1993-1995."
2. In docket number CR 96-94222, the petitioner was charged with one count of sexual assault in the third degree in violation of C.G.S. § 53a-72a(a)(1), and one count of the crime of risk of injury to a child in violation of C.G.S. § 53-21(1). By way of the information, the prosecuting authority alleged that the offense date for each count was "1993-1995."
3. Both dockets were tried to a jury in the Superior Court, judicial district of Hartford. The petitioner ultimately was convicted on all six counts in both dockets.
4. On June 19, 1998, the petitioner was sentenced by the court (Fasano, J.). In docket number CR 96-94223, the judgment mittimus indicates that the petitioner received the following sentences: on the count of sexual assault in the first degree, twelve years, execution suspended after eight years, with three years probation; on the count of sexual assault in the third degree, five years to serve; on each of the two counts of the crime of risk of injury to a child, five years to serve. These sentences were all ordered to run concurrent with each other. The judgment mittimus prepared for docket CR 96-94223 indicates that the offense date for each of the four counts is "1993-1995."
5. The petitioner was also sentenced on June 19, 1998 in docket number CR96-94222, receiving sentences of five years to serve for both the count of sexual assault in the third degree and the count of risk of injury to a child. These two sentences were ordered to run concurrent with each other, as well as concurrent with the sentences in docket number CR96-94223. The judgment mittimus prepared for docket CR 96-94222 indicates that the offense date for each of the two counts is "1993-1995."
6. As a result of all sentences imposed in both dockets, the total effective sentence imposed on June 19, 1998 is identical to the sentence imposed for the count of sexual assault in the first degree: twelve years, execution suspended after eight years, and three years probation. This became and remains the petitioner's controlling sentence.
7. A thorough review of the transcripts of the petitioner's trial shows that petitioner's trial counsel, Attorney Karen Goodrow, was concerned about the state's allegation that there were divers offense dates between 1993 and 1995. Petitioner's Exhibit 2, at 1. At a subsequent proceeding, the prosecutor indicated that there was one incident dating back to 1989. Id., at 83. The victims testified at the criminal trial that the conduct constituting the offense occurred several times a month between 1993 and the summer of 1995. Id., at 131, 188 and 219. Testimony by a detective involved in the investigation indicated that the offenses occurred between September 1993 and June 1995. Id., at 415.
The underlying trial transcripts are petitioner's exhibit 2, which is marked "ID." Nevertheless, this court may take judicial notice of the transcripts. Andrades v. Commissioner of Correction, 81 Conn.App. 538, 540, 840 A.2d 1198 (2004) (habeas and appellate court can take judicial notice of court file on direct appeal); McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 96 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990) (judicial notice taken of the court files in another suit between the parties when the relevance of that litigation was expressly made an issue); In re Mark C., 28 Conn.App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992) (while improper for court to rely solely on judicial notice of prior proceeding as basis for decision, court may take into consideration evidence for earlier proceedings). See also Practice Book § 23-36, which allows a party in a habeas corpus action to file any portion of the transcript as part of the record before the habeas court.
8. Upon receiving the judgment mittimi for the two dockets at issue, the Department of Correction was required to calculate each docket's controlling sentence and discharge date. This computation necessitates a specific offense date, not a range of dates such as "1993-1995," so that a determination can be made whether a sentence is eligible to have relevant statutory good time credits posted to that sentence.
9. The respondent concluded that even though a specific offense date could not be ascertained from either mittimus, the entire calendar year of 1995 was subsequent to October 1, 1994. Consequently, the respondent selected January 1, 1995, as the offense date that would be utilized for good time eligibility purposes. The offense date of January 1, 1995, was selected by the respondent to give the petitioner the earliest day of the 1995 calendar year.
10. The respondent did not seek clarification from the sentencing court regarding a specific offense date. According to the respondent, since the indicated offense date of "1993-1995" incorporated the entire calendar year of 1995, which plainly is subsequent to October 1, 1994, it was unambiguous that there was an offense date after October 1, 1994. The respondent would, however, have sought clarification from the sentencing court if, for example, the judgment mittimus had identified an offense date range of "Spring 1994-Fall 1994." This latter date range would have resulted in an ambiguity, according to the respondent, because it is not evident whether or not the offense date precedes or follows October 1, 1994.
11. The petitioner appealed these convictions, which were affirmed in State v. McPhee, 58 Conn.App. 501, cert. denied, 254 Conn. 920 (2000). The issues raised on direct appeal from the convictions did not include a challenge to the offense date of "1993-1995."
12. The Appellate Court decision includes the following recitation of relevant facts, which the jury reasonably could have found: "Between 1993 and 1995, the [petitioner] lived in Bristol with his wife and their child, 5, and his wife's three children from a previous marriage, M, C and D. During this time, the [petitioner] subjected M and C to sexual contact by playing what was called `the ice game.' The ice game was played one or more times each month, and began when M was seven years old and continued until she was nine years old . . . The children did not complain to anyone about the ice game during the three years that the [petitioner] subjected them to it because they were afraid of reprisal." State v. McPhee, supra, 58 Conn.App. 503.
13. On October 21, 2004, the petitioner filed with the sentencing court a motion to correct sentence, which essentially claimed that the petitioner's sentences are illegal. The motion to correct was filed to comply with Cobham v. Commissioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001) (illegal sentence claim must first be raised either with sentencing court or on direct appeal before habeas court has jurisdiction over such claim). The motion to correct sentence sought to have the sentencing court "clarify [the petitioner's sentence], imposed June 19, 1998, because the stated offense date: `1993-1995' is ambiguous and potentially subjects him to double jeopardy." After a hearing conducted on January 12, 2005, the motion was denied by Judge Fasano.
14. At the time the petitioner filed the instant petition, he had discharged from all sentences except the controlling sentence imposed for the count of sexual assault in the first degree.
DISCUSSION OF LAW
The relief sought by the petitioner is the application of statutory good time credits to his controlling sentence. It is well-established that such credits may only be applied to good time eligible sentences. Tyson v. Commissioner of Correction, 261 Conn. 806, 808 A.2d 653 (2002), cert. denied sub nom., Tyson v. Armstrong, 538 U.S. 1005, 123 S.Ct. 1914, 155 L.Ed.2d 836 (2003); Rivera v. Commissioner of Correction, 254 Conn. 214, 217 n. 2, 756 A.2d 1264 (2000); Velez v. Commissioner of Correction, 250 Conn. 536, 738 A.2d 604 (1999). It is just as clear from Tyson, Rivera and Velez that good time eligible offenses are ones where the crime was committed prior to October 1, 1994.
"It is a well-established rule in this state that it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the statute of limitations." (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d 76 (1985). See also State v. Ferris, 81 Conn. 97, 99, 70 A. 587 (1908). The state here chose to allege that the offense date was "1993-1995" and thereafter met its burden of proof. There is, simply stated, no flaw or ambiguity in the offense date as charged in the information or as proven at trial. In other words, any ambiguity is latent until such time as the determination must be made whether the petitioner's controlling sentence is good time eligible.
The latent ambiguity becomes patently clear by an attempt to apply the relevant good time statutes to the petitioner's controlling sentence. C.G.S. § 18-7a(c) permits "[a]ny person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983" to earn good time credits that may be applied to a good time earning sentence. C.G.S. § 18-100d, the statute at issue in Velez, renders good time statutes such as § 18-7a, inapplicable to sentences imposed for offenses committed on or after October 1, 1994. Both § 18-7a(c) and § 18-100d are clear, unambiguous, and cannot simultaneously apply to the very same sentence; i.e., the very same sentence cannot be both good time eligible and ineligible. Stated yet another way, §§ 18-7a(c) and 18-100d are mutually exclusive and can be harmonized. See, e.g., Tyson v. Commissioner of Correction, supra, 261 Conn. 814-15.
The following passage from Tyson further illustrates the circumstances presented by the instant case:
The significance of October 1, 1994, is that a person who has committed a crime on or after that date and who is sentenced to a term of imprisonment in connection with a conviction of such a crime is not entitled to earn good time credit, which serves to accelerate the date of release from confinement. Persons sentenced for crimes committed before October 1, 1994, however, remain entitled to such good time credit. (Internal citations omitted.)
Tyson v. Commissioner of Correction, supra, 261 Conn. 808.
Because the petitioner's offense date as alleged and proven straddles or overlaps October 1, 1994, it is not immediately clear whether the petitioner's controlling sentence is, or is not, good time eligible. The resolution of the instant matter lies in determining whether C.G.S. § 18-7a(c) or C.G.S. § 18-100d would apply to the offense date of "1993-1995."
It is clear to this court that the respondent in good faith attempted to determine the petitioner's controlling sentence and discharge date. The respondent's identification of a single offense date in 1995, premised on the entire calendar year of 1995 being subsequent to October 1, 1994, appears to be logical and sound. Because the entire calendar year of 1995 follows October 1, 1994, there is no ambiguity that a day in that date range is subsequent to October 1, 1994. The aforementioned hypothetical date range of "Spring 1994-Fall 1994" does not allow for a precise identification of a single date that definitely is subsequent to October 1, 1994. This is so because the end of the date range, "Fall 1994," could either be prior to, or after, October 1, 1994.
The difficulty for this court with both of these date ranges — "1993-1995" and "Spring 1994-Fall 1994" — is that both are ambiguous when it comes to determining good time eligibility. Both date ranges can be interpreted in more than one way. Each range can be interpreted to mean that a course of conduct spanning the date range constituted the criminal conduct. Each range can also be interpreted to mean that multiple instances of the criminal conduct occurred in the date range. Additionally, each date range can also be interpreted to mean that a single offense date, but one that could not be determined with accuracy, occurred sometime within the date range. Any specific date selected from either date range is, without the benefit of reviewing the underlying facts, potentially arbitrary and inaccurate. Without such additional information, which of course is not contained in the four corners of the judgment mittimus, a determination of a specific offense date cannot be made with certainty from the mittimus itself.
A review of the underlying record in this case shows that the date range utilized by the prosecuting authority is most accurately interpreted to mean that multiple instances of criminal conduct occurred in the date range. Since the young victims could not identify specific dates on which the criminal conduct occurred, the state chose to charge the petitioner with offenses that occurred over a demonstrable date range. Additionally, because it was unknown exactly how many instances of the offenses occurred, the state essentially charged the petitioner with one instance of each offense. It is clear and undeniable, however, that the evidence at the underlying criminal trial shows that many instances of the offenses occurred, both prior to and after October 1, 1994. It follows therefrom that the petitioner in fact stands convicted for offenses committed on or after October 1, 1994. Consequently, the petitioner's controlling sentence is good time ineligible.
Each instance would have been a separate crime and could have been charged individually; the result would have been a significantly higher potential exposure to the petitioner.
The one exception being the two counts of risk of injury to a child in docket number § 53-21(1).
The petitioner cites to State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985), in support of the argument that the rule of lenity applies in the instant matter. Near the close of the habeas corpus trial, counsel for the petitioner reiterated that the rule of lenity required that ambiguities in the criminal law must be resolved in favor of the defendant/petitioner.
In Rawls, "The defendant . . . was convicted [after a jury trial] of two counts of possession of narcotics in violation of General Statutes 19-481(a). The defendant was sentenced to seven years imprisonment on one count, and to a consecutive sentence of seven years on the other count with execution suspended after one year, making a total effective sentence of fourteen years, suspended after eight, with five years probation. The court . . . subsequently modified the sentences to run concurrently. From this judgment, the defendant appeal[ed] claiming (1) that he was denied the right to confront the witnesses against him as to the analysis of the drugs, and (2) that multiple convictions for the simultaneous possession of cocaine and heroin violated his rights under the double jeopardy clause of the United States constitution." Id., at 112-13. The Supreme Court was "persuaded only by the double jeopardy claim." Id., at 113.
The Rawls court noted that "[t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Therefore, the question . . . becomes whether the legislature in enacting 19-481(a) intended to authorize dual convictions for the simultaneous possession of cocaine and heroin.
"Neither the language of 19-481(a) nor its legislative history indicates an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic. The state, at argument, disclaimed the notion that separate packages of the same narcotic substance found in the possession of a person could be the basis for separate punishments under 19-481(a). The statute provides no suggestion of a contrary result for the simultaneous possession of separate packages of different narcotics. As the state conceded at argument, the statute at issue here is ambiguous in respect to whether separate punishments were intended for the possession of more than one kind of narcotic substance. It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. The `touchstone' of this rule of lenity is `statutory ambiguity.' Unless a clear intention to fix separate penalties for each narcotic substance involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses. The defendant's conviction and sentence for possession of heroin, in the absence of a clearly discernible legislative intent for multiple convictions under 19-481 (al, is barred by the double jeopardy clause." (Emphasis added.) (Internal citations omitted.) Id., at 121-22.
It is clear from the foregoing excerpt that Rawls is distinguishable from the instant matter. Rawls dealt with a statutory ambiguity that had resulted in multiple punishments. The rule of lenity was used to prevent a single transaction from becoming multiple offenses. In the instant habeas corpus matter, there is neither an ambiguity in the applicable good time statutes that triggers the rule of lenity, nor is there any risk that the petitioner is subject to harsher punishment. Consequently, the court finds that the petitioner's reliance on Rawls and the rule of lenity is misplaced.
Indeed, here we have the opposite, that is multiple offenses became but a single conviction.
Counsel for the petitioner also relies on the recent decision in Blakely v. Washington, 542 U.S., 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), for the claim that the petitioner's right to have all facts legally essential to the punishment proven to a jury. Amended Petition, at 3. The petitioner additionally claims that "in finding that [he] committed six discrete offenses in the period 1993-1995, his jury failed to find beyond a reasonable doubt that any offense was committed on or after October 1, 1994." Id.
In Blakely, the United States Supreme Court "held unconstitutional, in violation of the Apprendi rule, Washington's sentencing guideline scheme that permitted a court to impose an `exceptional' sentence if it finds `substantial and compelling reasons' to justify such a departure.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Apprendi rule is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) Id., at 490.
In Blakely, the defendant pleaded guilty to kidnapping in the second degree and, pursuant to his plea agreement, the state recommended a sentence within the standard sentencing range of forty-nine to fifty-three months. The trial court sentenced the defendant to ninety months, however, because it found that the defendant had acted with `deliberate cruelty.' Because the finding of `deliberate cruelty,' which increased the defendant's sentence beyond the standard range, was neither stipulated to by the defendant nor found by a jury, the defendant's sentence violated his sixth amendment right to a jury trial." (Internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 508 n. 15, 857 A.2d 908 (2004).
As with Rawls, the petitioner's reliance on Blakely is misplaced. The critical issue in Blakely was the imposition of a sentence that exceeded the standard range. The underlying sentences at issue in the instant petition did not exceed the statutorily permissible maximum, nor has the petitioner made such an allegation. The petitioner did have, contrary to his assertions, all facts legally essential to the punishment proven to a jury. Additionally, the jury did find beyond a reasonable doubt that all six discrete offenses were, in fact, committed on or after October 1, 1994. The claim based on Blakely is, therefore, without merit.
Having failed to show that the respondent has incorrectly determined his discharge date, judgment is entered denying the petition for a writ of habeas corpus.
S.T. FUGER, JR., JUDGE