Opinion
No. CV05-4000519 S
April 27, 2007.
MEMORANDUM OF DECISION
The petitioner has brought this amended petition for a writ of habeas corpus alleging claims in two counts. First, that he was deprived of his state and federal constitutional rights to due process because the respondent has lengthened the petitioner's confinement in breach of his plea bargain with the state, in violation of fifth and fourteenth amendments to the United States Constitution and article 1, § 8, of the Connecticut constitution. Second, that the respondent's retroactive application of the Supreme Court's construction of a criminal statute deprives the petitioner of his right to due process as guaranteed by the federal and state constitutions. Petitioner primarily seeks as relief that this court order additional days of presentence confinement credit (jail credit) to two dockets. Respondent's return denies petitioner's material allegations and that he is entitled to habeas corpus relief.
The matter came before the court on March 26, 2007, for a trial on the merits. Witnesses included Michelle Deveau, a Record Specialist II with the Department of Correction, the petitioner, and Jeffrey M. Lee, the Assistant State's Attorney who prosecuted the underlying criminal cases. Based on the court's review of the testimony and documentary evidence, judgment enters denying the petition for a writ of habeas corpus.
The petitioner was the defendant in docket numbers CR02-560615 and CR02-562734 in the judicial district of Hartford, G.A. 14 (Hartford cases), as well as docket number CR02-184528 in the judicial district of Hartford, G.A. 12 (Manchester case). On February 20, 2003, the petitioner entered Alford guilty pleas in both Hartford cases. In docket number CR02-560615, petitioner pleaded guilty to one count of criminal possession of a firearm, in violation of General Statutes § 53a-217, and received a sentence of five years to serve, with two years mandatory minimum, concurrent with both any sentences then being served and the sentence imposed in CR02-562734. In docket number CR02-562734, petitioner pleaded guilty to one count of assault of public safety personnel, in violation of General Statutes § 53a-167c, and received a sentence of ten years, execution suspended after the service of five years, concurrent with sentences then being served, with four years probation, as well as guilty to one count of carrying a dangerous weapon, in violation of General Statutes § 53-206, for which he received a sentence of two years, execution suspended, with four years probation, consecutive to the sentence for assault of public safety personnel. Consequently, the total effective sentence imposed for the Hartford cases was twelve years, execution suspended after the service of five years, with a mandatory minimum of two years, followed by four years probation.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
The petitioner was represented in the Hartford cases by Assistant Public Defender Linda Babcock. Attorney Babcock requested that the court sentence the petitioner, but that the sentence would be stayed until some time after March 4, 2003, after which the stay would be lifted. The sentencing court (Ward, J.) stayed the sentence until March 5, 2003, at 10 a.m., at which time the stay would be lifted. On March 5th, the stay was lifted during the morning but then reinstated. The court indicated at the time the stay was reinstated that "[a]pparently there was a misunderstanding as to when [the petitioner] wanted [the stay] lifted because of another sentence being imposed shortly . . ." Petitioner's Exhibit 8 (Tr., March 5, 2003), at 2. Attorney Babcock indicated to the court that an additional two-week stay would be sufficient. The court then continued the matter to March 21, 2003.
On March 14, 2003, before the Hartford cases again came before the court, the petitioner was sentenced in the Manchester case on one count of robbery in the third degree, in violation of General Statutes § 53a-136, and received a sentence requiring the service of four years incarceration. The petitioner's status at that point changed from being held in lieu of bond to being a sentenced prisoner, resulting in petitioner no longer earning jail credit on any other dockets. The timesheet maintained by the respondent for the Manchester sentence shows that on March 14, 2003, 178 days of jail credit were posted to that sentence, reflecting the time period of September 17, 2002 through March 14, 2003. Petitioner's Exhibit 2. The posting of 178 days of jail credit advanced the release date from March 13, 2007 to September 16, 2006. Because the Manchester sentence was the only sentence then being served, it automatically was the petitioner's controlling sentence.
The Hartford cases came before the court again on April 7, 2003. Attorney Babcock reiterated at that time that the petitioner had already been sentenced in the Hartford cases and only needed to have the stay lifted. Attorney Babcock also informed the court that the petitioner, while the Hartford sentences were stayed, had been sentenced in Manchester about a month earlier and that the Harford sentences needed to be imposed concurrently. Consequently, the court lifted the stay and ordered the Hartford sentences to run concurrent with the present sentences, which now included the Manchester sentence.
After coming into respondent's custody on the Hartford sentences, respondent performed jail credit calculations for the Hartford sentences. The timesheet for docket number CR02-562734 shows an entry dated April 7, 2003, at which time no jail credits were applied, establishing a release date of April 6, 2008. Petitioner's Exhibit 3. The timesheet for docket number CR02-660615 shows an entry dated April 7, 2003, at which no jail credits were applied, establishing a release date of April 6, 2008. Petitioner's Exhibit 1. Because the release date established for the Hartford sentences was later than the release date for the Manchester sentence, the former supplanted the latter as petitioner's controlling sentences.
This is true whether or not jail credits are applied to the Manchester sentence. Without the application of jail credits, the Manchester sentence expired on March 13, 2007. The application of 178 days of jail credit results in a release date September 16, 2006.
Several days after the initial postings to the Hartford sentences, the respondent reassessed and recalculated the jail credit for all Hartford and Manchester sentences. The time sheet for docket number CR02-562734 shows an entry dated April 11, 2003, which posted 224 days of jail credit, reflecting the time period of August 2, 2002 through March 14, 2003, and which resulted in a release date of August 26, 2007 for that docket. Petitioner's Exhibit 3. The timesheet for docket number CR02-660615 shows an entry dated April 11, 2003, which posted 167 days of jail credit, reflecting the time periods of May 29, 2002 through July 7, 2002 and November 7, 2002 through March 14, 2003, resulting in a release date of November 22, 2007 for that docket. Petitioner's Exhibit 1. As a result of the foregoing, the sentence in docket number CR02-560615 had the latest release date and became petitioner's controlling sentence.
As indicated, on April 11, 2003, the respondent not only recalculated the jail credits to be applied to the Hartford sentences, but also recalculated the jail credit for the Manchester sentence. An entry dated April 11, 2003 shows that the 178 days of jail credit initially posted to that docket were removed, resulting in a release date of March 13, 2007 because now no jail credits were being applied to the Manchester docket. Petitioner's Exhibit 2. The April 11, 2003 posting also has the following notation: "TOOK AWAY TO APPLY TO NEW CONTROLLING." The obvious and quite apparent reason for this recalculation is that the petitioner would benefit from the application by having his controlling sentence receive the most jail credits possible.
On November 30, 2004, the Supreme Court released its decisions in CT Page 5866 Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004), and Hunter v. Commissioner of Correction 271 Conn. 856, 860 A.2d 700 (2004). This trio of cases, with Harris being the lead case, addressed the proper calculation and application of jail credits in the context of multiple sentences running concurrently. In Harris, the Supreme Court concluded that ". . . when concurrent sentences are imposed on different dates, the presentence confinement days accrued simultaneously on more than one docket are utilized fully on the date that they are applied to the first sentence. Hence, they cannot be counted a second time to accelerate the discharge date of any subsequent sentence without violating the language of § 18-98d(a)(1)(A) . . ." (Citations omitted.) Harris v. Commissioner of Correction, supra 271 Conn. 823.
The decisions in Cox and Hunter were controlled by the holding in Harris. In Cox, however, the Supreme Court indicated that the Commissioner of Correction had erred in performing a jail credit computation and application. Cox v. Commissioner of Correction, supra 271 Conn. 849-50. There, ". . . the respondent became aware that it would be to the petitioner's benefit to apply . . . days of presentence confinement that the petitioner had served under both dockets [for sentences subsequently imposed] rather than to the [previously imposed] sentence. Accordingly, without any further explanation, the respondent recalculated the petitioner's concurrent sentences . . ." Id., at 849. The respondent's recalculation allowed the petitioner to advance his discharge date. Id., at 850. After applying Harris to the facts of Cox the Supreme Court noted that the respondent's initial calculation and application of jail credits was correct and that the recomputation performed to inure to the petitioner's benefit was in error. Id., at 853. The Supreme Court explicitly stated that its ". . . interpretation of § 18-98d(a)(1)(A) does not permit the respondent to credit [a subsequently imposed sentence] with the . . . days of presentence confinement that [were] served simultaneously under [multiple dockets], because those days were fully utilized when they were credited to the [earlier] sentence." (Emphasis added.) Id.
After being made aware that jail credit computations were being incorrectly performed the respondent sought to correct the erroneous applications of jail credit to those inmates who were still incarcerated at that time. To achieve that end, the respondent recomputed jail credit and made adjustments to comport with the Supreme Court's holdings in Harris and Cox. These recomputations were uniformly made to those still in the custody of the Commissioner of Correction, but not to those who had already discharged from sentences and no longer were in the commissioner's custody.
There is a patently obvious and rational reason for drawing a distinction between those in custody and those who have discharged. The former are still on a sentence and the latter are not. Undoubtedly, the latter received an unexpected windfall from the respondent's incorrect calculation and application of jail credit. It is also quite clear that if the respondent were to perform corrections for all those former inmates whose sentences were fully executed and were discharged, the respondent would be confronted with reincarcerating thousands, possibly many thousands, of individuals who presently are not incarcerated. Delaying the eventual release of those presently incarcerated does not present the same significant ramifications. But see Rivera v. Commissioner of Correction, 254 Conn. 214, 225-26, 756 A.2d 1264 (2000) (commissioner's good faith representation that discharged inmate would be reincarcerated sufficient to overcome petitioner's claim appeal was moot).
In the instant petitioner's cases, respondent made adjustments to all three dockets on April 3, 2005. The posting for that date bears the following notation: "SC 11/04 JC REVIEW," which signifies that the jail credit review was being conducted as a result of the Supreme Court decisions in Harris, Cox and Hunter, which were released November of 2004. The Manchester sentence was adjusted by again applying 178 days of jail credit, reflecting the time period of September 17, 2002 through March 14, 2003, resulting in a release date of September 16, 2006. Petitioner's Exhibit 2. Hartford docket number CR02-662734 was adjusted by removing 178 days of jail credit, reflecting the same time period, resulting in a release date of February 20, 2008. Petitioner's Exhibit 3. And Hartford docket number CR02-560615 was adjusted by removing 127 days of jail credit, reflecting the time period of November 7, 2002 through March 14, 2003, resulting in a release date of February 26, 2008. Petitioner's Exhibit 1. Thus, the April 3, 2005 adjustments altered petitioner's discharge date from all the sentences at issue from October 22, 2007 to February 26, 2008. Petitioner's Exhibit 1.
Petitioner's first claim is that he has been deprived of his state and federal constitutional rights to due process because respondent has lengthened his confinement in breach of his plea bargain with the state. Petitioner cites to Santobello v. New York, 404 U.S. 257, 261 (1971), and State v. Garvin, 242 Conn. 296, 313 (1997), in support of this claim. "When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea." State v. Garvin, supra, 242 Conn. 313.
The court notes that respondent moved to dismiss count one after petitioner completed his case-in-chief and sought a directed verdict, which the court took under advisement. For the reasons stated below, count one is denied.
Succinctly put, there is no evidence showing the plea agreement encompassed jail credit. The plea and sentencing transcripts indicate no promise by the prosecutor regarding jail credit, and the sentencing court's orders do not address jail credit. Assistant State's Attorney Lee, who prosecuted the Hartford cases, testified at the habeas trial that he did not promise any jail credit to the petitioner during the plea negotiations. Lee further testified that jail credit was not discussed at all, though the issue of a stay did arise. Such stays are, according to Lee, a way in which jail credits can be maximized. Consequently, the claim in count one must be denied.
Petitioner's second claim is that the Supreme Court's decision in Cox ". . . is an unforeseeable and retroactive judicial expansion of General Statutes § 18-98d. Respondent's retroactive application of the Supreme Court's construction of a criminal statute deprives petitioner of his right to due process as guaranteed by the federal and state constitutions. See Bouie v. City of Columbia, 378 U.S. 347 (1964)." Amended Petition, at 3. A review of Boiue and Connecticut appellate decisions citing to that case shows it does not provide support for petitioner's claim in count two.
In Bouie, ". . . the United States Supreme Court . . . articulated [that] a judicial alteration of a common law doctrine of criminal law violates the due process principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." State v. Brocuglio, 264 Conn. 778, 794, 826 A.2d 145 (2003). "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that is contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." State v. Vickers, 260 Conn. 219, 230, 796 A.2d 502 (2002), citing and quoting Bouie v. Columbia supra, 378 U.S. 351.
Bouie stands for the fundamental proposition that before conduct can be criminalized and thus subject individuals to criminal punishment, due process requires that a fair and definite warning must be given that such conduct in fact is being criminalized. § 18-98d, the jail credit statute, neither criminalizes conduct nor does it proscribe conduct. Instead, ". . . the purpose of [§ 18-98d] is to give recognition to the period of presentence time served and permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody." Harris v. Commissioner of Correction, supra, 271 Conn. 808, citing and quoting Holmquist v. Manson, 168 Conn. 389, 393-94, 362 A.2d 971 (1975).
Petitioner alleges that the Cox decision was an unforeseeable and retroactive judicial expansion of § 18-98d. That allegation mischaracterizes the decision in Cox. It is clear from appellate decisions addressing claims of judicial expansion of criminal statutes that the concern is a court's broadening of ". . . narrow and precise statutory language." State v. Miranda, 260 Conn. 93, 103, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002), citing and quoting Bouie v. Columbia, supra, 378 U.S. 352.
The Connecticut Supreme Court in Harris and Cox did not broaden the language of 18-98d. Instead, the court applied rules of statutory construction and concluded that the intent of § 18-98d is to provide for jail credit without double crediting. Since the release of Harris, Cox and Hunter about two and one-half years ago, the legislature has not amended 18-98d to legislatively override the holdings of those cases. "Our legislature is presumed to be aware of judgments that construe our statutes. In the absence of any legislation to reverse the courts' decisions, [courts] may assume that the General Assembly is in agreement with them. See Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 235 n. 11, 875 A.2d 485 (2005)." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
This court fails to see how the Supreme Court's interpretation of 18-98d in Harris and Cox was anything other than the correct interpretation of that statute. Respondent's adjustments performed as a result of Harris and Cox which sought to correct impermissible adjustments performed by the respondent, in no way is tantamount to a due process violation as alleged by petitioner. In fact, it must be emphasized that the respondent has an ongoing statutory duty to correctly calculate and apply jail credit. § 18-98d(c) states in relevant part that "The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of [18-98d] apply receives the correct reduction in such person's sentence . . ." (Emphasis added.) The claim in count two, therefore, must also be denied.
Based on the foregoing, the petition for a writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.