Opinion
No. CV04-0004502 S
March 15, 2006
MEMORANDUM OF DECISION
On February 13, 2004, the petitioner filed a petition for a writ of habeas corpus, which was amended on July 27, 2005. The amended petition raises claims in five counts and alleges various constitutional violations. The return denies that the petitioner is entitled to the relief he seeks and raises procedural default as an affirmative defense to count one. The petitioner did not file a reply to the return.
The matter came before this court for a trial on the merits on January 26, 2006, at which time the court received into evidence several plea and sentencing transcripts, several mittimi, a timesheet prepared by the respondent for docket number CR95-0111031 ("timesheet"), as well as testimony from the petitioner and Department of Correction Record Specialist II Michelle Deveau. From the foregoing and the facts pleaded in the amended petition and admitted to by the respondent, the court makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was arrested on September 7, 1995 in connection with docket number CR95-0111031 ("docket one"). The underlying offenses in docket one occurred on July 3, 1993 and are good time eligible.
2. The petitioner was arrested on September 7, 1995 in connection `with docket number CR01-11033 ("docket two"). The underlying offenses in docket two occurred on September 7, 1995 and are not good time eligible.
3. The petitioner was arraigned on both dockets one and two the next day, September 8, 1995. 4. On docket two, the petitioner was charged with Possession with Intent to Sell, in violation of C.G.S. § 21a-278(a), Sale of Narcotics, in violation of C.G.S. § 21a-278(b), and Operation of a Drug Factory, in violation of C.G.S. § 21a-277(c).
5. The petitioner pleaded guilty under Alford to the charges in docket two before the court, (Ronan, J.), on June 14, 1996, and was sentenced on July 26, 1996 by Judge Ronan. The docket two sentence was eighteen (18) years, execution suspended after ten (10) years, followed by five (5) years probation.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
6. On docket two, the petitioner was held in the custody of the Commissioner of Correction from his arrest on September 7, 1995 until his sentencing on July 26, 1996.
7. On docket one, the petitioner was held in lieu of bond by the Commissioner of Correction from his arrest on September 7, 1995 until his sentencing on December 20, 1996. From July 26, 1996, until December 20, 1996, the petitioner was not held solely in lieu of bond on docket one because he also was a sentenced prisoner serving the sentence imposed on docket two.
8. On docket one, the petitioner was originally charged in the Judicial District of Stamford/Norwalk with Manslaughter in the First Degree, in violation of C.G.S. § 52a-55(a)(3), Conspiracy to Commit Murder, in violation of C.G.S. §§ 53a-48a(a) and 53a-54(a), and Criminal Attempt to Commit Murder, in violation of C.G.S. §§ 53a-54a(a) and 53a-8(a).
9. The petitioner pleaded guilty under Alford to Criminal Attempt to Commit Murder, in violation of C.G.S. §§ 53a-49a and 53a-54a, and Manslaughter in the Second Degree, in violation of C.G.S. § 53a-56.
10. On December 20, 1996, the petitioner was sentenced on docket one by the court, (Dean, J.), to twenty (20) years for Attempted Murder, execution suspended after ten (10) years, with five (5) years probation, and five (5) years for Manslaughter in the Second Degree, to run consecutively. The total effective sentence in docket one was twenty-five (25) years, suspended after fifteen (15) years, and five years probation, concurrent with the sentence previously imposed in docket two.
11. The petitioner's timesheet for docket one shows that on December 20, 1996, the respondent posted 322 days of presentence confinement credit ("jail credit"), reflecting the time period of September 8, 1995 through July 26, 1996, as well as a posting of 107 days of jail credit good time for the same time period.
12. The timesheet also shows two postings dated February 23, 2005. On that date, the respondent adjusted the docket one sentence by subtracting 322 days of jail credit and 107 days of jail credit good time previously credited for the September 8, 1995 through July 26, 1996 time frame. In the comment section for both postings, the respondent entered the following: "SC 11/05 JC REVIEW 9/8/95-7/26/96." Resp't Ex. G, at 4.
13. Additional facts will be addressed as necessary to resolve the petitioner's claims.
DISCUSSION
The petitioner in the instant matter has through his amended petition raised various claims in five counts. In the first count, the petitioner alleges that he was deprived of his state and federal Constitutional rights to due process because he was induced by the state's promise regarding jail credit and jail credit good time. The petitioner alleges that the state failed to honor its plea bargain with the petitioner.
Irrespective of the petitioner's allegations and the respondent having raised the affirmative defense of procedural default, the petitioner has presented no evidence in support of the claim and this court finds, therefore, that the petitioner has abandoned the claim in count one. The plea and sentencing transcripts show, contrary to the petitioner's assertions, that there is no merit to the claim that the petitioner was induced by state promises regarding jail credit or jail credit good time. Consequently, the claims in count one are baseless, without merit and have been abandoned.
In count two, the petitioner alleges an equal protection violation stemming from his inability to post bond, which, it is claimed, ultimately led him to serve more time than someone who had posted bond. In count five, the petitioner claims that there is a violation of separation of powers arising from "[t]he Department of Correction's interpretation of judicial opinions in creating policy to effectuate Connecticut Statutes on jail credit . . ." Amended Petition, at 8. As with the claim in count one, the petitioner has presented no evidence in support of these claims in counts two and five, so the court finds those claims also are abandoned.
A similar separation of powers claim pertaining to C.G.S. § 18-98d was recently rejected by the Appellate Court in Whitaker v. Commissioner of Correction, 90 Conn.App. 460, 479-82, cert. denied, 276 Conn. 918 (2005).
In counts three and four, the petitioner raises claims that the respondent's jail credit and jail credit good time calculations result in equal protection and ex post facto/due process violations. The court will address these two claims in conjunction because some evidence was presented as to both and because the discussion and analysis regarding both claims overlaps.
Count three alleges that the Department of Correction's calculation of the petitioner's jail credits in dockets one and two has not been applied to all prisoners in a uniform manner. More specifically, the petitioner's claim is that the respondent has not performed calculations similar to the petitioner's on all sentences potentially impacted by the Supreme Court decisions in 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). The respondent's recalculation and subsequent postings dated February 23, 2005 resulted in a later release date than that established prior to February 23, 2005. Such recalculations and postings have not been done, according to the petitioner's claim, for prisoners who discharged from their sentences prior to February 23, 2005.
As to count four, the petitioner alleges that "[t]he Department of Correction, through the Office of the Attorney General, has gone on record, during oral argument in Ruffin v. Commissioner of Correction, 89 Conn.App. 724 (2005), as stating that the new calculations of jail credit are a result of their reading of recent Connecticut Supreme Court case law. The Department of Correction has enacted a policy regarding jail credits that violates the Ex Post Facto/Due Process clauses of the United States and Connecticut Constitutions." Amended Petition, at 8.
The court makes the following additional findings of fact regarding the claims in counts three and four. At the habeas corpus trial, Record Specialist II Michelle Deveau testified on direct examination that the recalculation affecting the instant petitioner resulted from the Supreme Court's decision in Harris. Ms. Deveau indicated she was not aware of any specific mandate stemming from Harris that obligated the respondent to perform recomputations of other inmates' sentences. She further testified that the Office of the Attorney General, which provides legal advice to the respondent, suggested the Department of Correction change its policies regarding jail credit and jail credit good time calculations. The Department of Correction started adjusting sentences affected by Harris in December of 2004. Lastly, Ms. Deveau testified that no person who had been discharged was brought back to serve an adjusted sentence, and that she did not know how many inmates were released from their sentences prior to the respondent recomputing discharge dates.
The court takes notice of the fact that Harris, Cox and Hunter were officially released on November 30, 2004.
Ms. Deveau further testified on cross examination that Harris made it clear the respondent was not correct in its application of jail credits. At the end of 2004, the respondent began looking at reevaluations for those inmates with the nearest discharge dates. According to Ms. Deveau, the recalculations resulting from Harris have been completed and the petitioner in this matter has not been singled out.
It is particularly noteworthy that the respondent prevailed on appeal by challenging the habeas court's granting of habeas corpus relief. In Harris, the Supreme Court explicitly held, contrary to the habeas court's conclusion, that the respondent was correctly interpreting the relevant statutes and correctly calculating and applying jail credit. Cox was the only one of the three decisions in which the Supreme Court indicated that the respondent had incorrectly calculated and applied jail credit. Cox v. Commissioner of Correction, supra, 271 Conn. 849-53. Consequently, the respondent's recalculations as a result of Harris are because that case brought to light an error such as the one in Cox in which the respondent had erred in calculating and applying jail credits to the benefit of inmates when no such benefit was authorized by statute. Thus, the recalculations spawned by Harris and Cox only sought to reverse the posting of jail credits that should never have been posted.
As is clear from decisions such as Tyson v. Commissioner of Correction, 261 Conn. 806, 825-28, 808 A.2d 653 (2002), the respondent's duty to determine the correct release date for inmates is an ongoing duty. The Tyson court concluded ". . . that the determination of which sentence is controlling is not a static concept." Id., at 828. While Tyson involved statutory good time, the Supreme Court emphasized that its conclusion was not limited to the specific facts of Tyson. "The ongoing determination of whether a particular sentence is the controlling sentence when good time credit may apply to one or more but not all of a prisoner's concurrent sentences is not a novel concept or a practice that is carried out exclusively in this context." Id., at n. 22. The Supreme Court then gave several examples that highlight the respondent's ongoing duty to correctly determine inmates' discharge dates. Id.
This court sees no basis to distinguish or exclude jail credit and jail credit good time calculations from the ambit of this ongoing duty. This is particularly true given the respondent's statutory responsibility to correctly calculate and apply jail credit. C.G.S. § 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 this section [i.e., § 18-98d, which governs presentence confinement credits] apply receives the correct reduction in such person's sentence . . ." (Emphasis added.)
As to the petitioner's claim in count three, in which he alleges an equal protection violation, this court must apply the appropriate standard. "[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." City Recycling, Inc. v. State, 257 Conn. 429, 448, 778 A.2d 77 (2001). However, "[t]he equal protection clause does not require absolute equality or precisely equal advantages." State v. Long, 268 Conn. 508, 534, 847 A.2d 862 (2004).
As the Harris court did, this court must ". . . begin by providing the relevant constitutional framework for adjudicating such claims. When a statute [or action] is challenged on equal protection grounds . . . the reviewing court must first determine the standard by which the challenged statute's [or action's] constitutional validity will be determined. If, in distinguishing between classes, the statute [or action] either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard [under which] the state must demonstrate that the challenged statute [or action] is necessary to the achievement of a compelling state interest . . . If the statute [or action] does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge . . ." Harris v. Commissioner of Correction, supra, 271 Conn. 831.
The Supreme Court more than once has "stated that [i]t is not the purpose of [the jail time statutes] to reduce the time a prisoner must serve pursuant to a sentence . . ." Id., at 834, quoting Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975). "Rather, the purpose of the `jail-time' statutes is to give recognition to the period of presentence time served and to permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody due to a mittimus . . . or because of the court's refusal to allow bail or the defendant's inability to raise bail . . ." Holmquist v. Manson, supra, 168 Conn. 393-94.
In Hammond v. Commissioner of Correction, 259 Conn. 855, 879-81, 792 A.2d 774 (2002), the Supreme Court noted that "[i]t is well established that presentence credit is a creature of statute and that, as a general rule, such credit is not constitutionally required . . . Because such credit is not constitutionally mandated, it is not one of those few rights deemed so fundamental that the state cannot impinge upon it in the absence of a compelling reason . . . Credit for presentence incarceration does not fall within [the] exalted group of rights that are recognized as fundamental." (Internal citations omitted.)
Because presentence confinement credit is not a fundamental right and there is no suspect class at issue, the respondent's decision to recalculate sentences only for those inmates still in custody "need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge." Harris v. Commissioner of Correction, supra, 271 Conn. 831. The clear legitimate purpose here is that the respondent has a statutory duty to correctly calculate and apply presentence confinement credits. The respondent became aware of an error in its jail credit calculation method and, as a result of the Supreme Court's decisions in Harris and Cox corrected that error. The correction of an error, so as to bring the respondent in compliance with statutory requirements as interpreted by this state's highest court, is plainly an eminently legitimate purpose. The petitioner's equal protection claim must, therefore, fail.
The respondent here has not, contrary to the respondent's position in Rivera v. Commissioner of Correction, 254 Conn. 214, 225-26, 756 A.2d 1264 (2000), indicated that the Commissioner of Correction will seek to confine any inmate discharged prior to Harris and the resultant recalculations. Thus, some undetermined number of inmates received an unexpected windfall.
The final claim that needs to be addressed is that the respondent's recalculation has resulted in an ex post facto/due process violation. "The United States Supreme Court has recognized that a law need not impair a `vested right' to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements . . . The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
"The United States Supreme Court also has recognized that the presence of discretion does not displace the protections of the Ex Post Facto Clause. Rather, [t]he controlling inquiry . . . [is] whether retroactive application of the change in [the] law create[s] a sufficient risk of increasing the measure of punishment attached to the covered crimes . . . Thus, unlike a due process claim, the . . . focus [of which is] primarily on the degree of discretion enjoyed by the [governmental] authority, not on the estimated probability that the authority will act favorably in a particular case . . .[,] the primary focus of an ex post facto claim is the probability of increased punishment.
"To establish a cognizable claim under the ex post facto clause, therefore, a habeas petitioner need only make a colorable showing that the new law creates a genuine risk that he or she will be incarcerated longer under that new law than under the old law . . ." (Emphasis added.) (Internal citations and quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 817-18, 786 A.2d 1091 (2002).
The petitioner here did not receive any increased punishment, nor was his punishment enhanced in severity compared to the punishment assigned by law when the underlying offenses occurred. The respondent corrected an error the respondent had made, said correction resulting in the removal of jail credit and the commensurate jail credit good time credit postings that the petitioner by law never was entitled to in the first instance. Nothing done by the respondent retrospective has made the petitioner's sentences more onerous than the law in effect on the date of the offense. Because the petitioner did not receive any increased punishment by the respondent's removal of jail credit the petitioner was not entitled to receive, the claim in count four also must fail.
Accordingly, and based on the foregoing, the petition for a writ of habeas corpus is denied.