Opinion
CV164007926S
12-05-2018
David GRANT (Inmate #336400) v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner alleges that the retroactive application of two public acts-Public Acts 2013, No. 13-3 § 59 ("P.A. 13-3") and Public Acts 2015, No. 15-216, § 9 ("P.A. 15-216")-violates the prohibition against ex post facto laws contained in the United States Constitution because they render him ineligible to earn and apply risk reduction earned credits ("RREC") to advance his parole eligibility and discharge dates. In light of our Supreme Court’s decision in Breton v. Commissioner of Correction, 330 Conn. 462 (2018), this court agrees and for the reasons that follow, the petition is GRANTED.
Article one, § 10, of the United States constitution provides in relevant part: "No State shall ... pass any ... ex post facto Law ..."
I. FACTS
The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(5) and criminal possession of a firearm in violation of General Statutes § 53a-217. The incident underlying these offenses occurred on June 24, 2012.
After a trial by jury, the petitioner was found not guilty of murder, but guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and guilty of assault in the first degree. The court found him guilty of criminal possession of a firearm. On June 26, 2015, he was sentenced to a total effective sentence of forty-seven years to serve, seven of which were mandatory, followed by ten years’ special parole. He subsequently appealed his convictions and our Appellate Court affirmed. State v. Grant, 179 Conn.App. 81, 178 A.3d 437, cert. denied, 328 Conn. 910, 178 A.3d 1041 (2018).
He was sentenced to thirty-five years’ incarceration, followed by five years’ special parole for manslaughter with a firearm, twelve years’ incarceration followed by five years’ special parole for assault and five years’ incarceration for criminal possession of a firearm. The sentence for assault is consecutive to the sentence for manslaughter. The firearm sentence runs concurrent to both.
The petitioner initiated the present action by way of petition for writ of habeas corpus filed on March 15, 2016. Pursuant to an order of the habeas court, Newson, J., the petitioner filed a sixth amended petition on July 17, 2018, bifurcating the instant claims from those alleging ineffective assistance of counsel. The petitioner filed a motion for summary judgment and the respondent filed an objection and cross motion for summary judgment which the petitioner objected to. The matter was set down fora trial on July 25, 2018. On that date, the parties agreed to present testimonial evidence to the court. The court heard testimony from three witnesses: Michelle Deveau, a records specialist for the department of corrections ("DOC"); Heidi Palliardi, a supervisor with DOC’s Sentence Calculation and Interstate Management Unit; and Richard Sparaco, the executive director of the Board of Pardons and Paroles ("parole board"). The parties also submitted numerous exhibits.
In that amended petition, the petitioner also alleged that the 2013 and 2015 amendments at issue here violated due process. In light of overwhelming binding precedent that there is no liberty interest in parole eligibility or good time credits; see Perez v. Commissioner of Correction, 326 Conn. 357, 364, 163 A.3d 597 (2017); the petitioner withdrew those claims during closing argument before this court.
In light of the fact that the parties presented the entirety of their evidence to this court and the legal issues raised in the motions for summary judgment are identical to the issues raised in the amended petition, the court takes no action on the motions for summary judgment and instead renders its decision on the merits of the petition.
Briefly, the petitioner claims that P.A. 13-3 violates the ex post facto clause because it prohibits him from earning and applying RREC to advance the date at which he could be considered for parole release by the parole board. He further claims that P.A. 15-216 violates the ex post facto clause because it prohibits him from earning and applying RREC to advance his maximum release date while he is serving the manslaughter sentence.
The petitioner remains eligible to earn RREC on his assault and firearm convictions. However, he will be ineligible to earn and apply RREC to those sentences until he has fully discharged his thirty five year sentence for manslaughter with a firearm.
Based upon the credible evidence presented at the hearing on July 25, 2018, the court finds the following: once an eligible inmate signs the offender accountability plan and adheres to correctional rules and regulations, RREC credits are automatically calculated and awarded by a computer system. The default is to award the inmate RREC on a monthly basis unless a disciplinary report results in forfeiture. There are twenty-eight rules associated with the granting and rescinding of credit, but credit is never taken away arbitrarily, rather only for just cause. The computer automatically posts RREC on the first of every month and this is displayed on the inmate’s time sheet. The forfeiture of RREC is also done by computer when the disciplinary history is inputted into the computer system. Further, an inmate who becomes ineligible to earn RREC because of failing to comply with correctional regulations is not permanently barred from earning RREC.
The petitioner in this case earned fifteen days of RREC from the date of his sentencing until November 1, 2015, when he became statutorily ineligible to earn RREC as a result of being convicted of a "violent offense." At the time he became ineligible to earn RREC, he had forfeited ten of those days. DOC, hover, continued to keep track of the RREC he would have earned, had he remained eligible. This is reflected using the term "non comply" on his time sheet. Petitioner’s Exhibit 6 ("P. Ex.").
An inmate convicted of manslaughter in the first degree with a firearm would be ineligible to apply RREC to advance his parole eligibility date due to that offense being designated a "violent offense."
II. APPLICABLE STATUTE
A. § 18-98e at the Time of the Petitioner’s Offense
Effective July 1, 2011, the legislature adopted Public Acts 2011, No. 11-51 ("P.A. 11-51"), § 22 of which was codified as General Statutes § 18-98e ("§ 18-98e"). Pursuant to P.A. 11-51 § 22, the Commissioner of Correction was given the discretion to award RREC toward a reduction of an inmate’s sentence, up to five days per month, for positive conduct. The statute categorically prohibited inmates convicted of certain offenses from being eligible to earn these discretionary credits. As of the effective date of P.A. 11-51, inmates who were sentenced for a "violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-70a or 53a-100aa" were statutorily barred from being eligible to earn RREC.
Subsection (b) provides the conditions which must exist for an inmate to be able to earn these credits: adherence to the inmate’s offender accountability plan, participation in eligible programs and activities, and good conduct and obedience to institutional rules as designated by the commissioner. The subsection also provides that good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and gives the commissioner, in his or her discretion, the authority to forfeit all or any portion of such earned RREC for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause.
Subsection (d) provides, in relevant part, that in "no event shall any credit earned under this section be applied by the commissioner so as to reduce a mandatory minimum term of imprisonment such inmate is required to serve by statute."
This was the operative version of the statute in effect on the date that the petitioner committed his offenses: June 24, 2012.
B. § 18-98e as Amended in 2015
In 2015, the legislature once again amended § 18-98e to add offenses to the list of statutorily ineligible offenses for the purposes of earning RREC. P.A. 15-216. After the effective date of P.A. 15-216-October 1, 2015-anyone who is convicted of "a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40"; (emphasis added) P.A. 15-216; is barred from being eligible to earn RREC. These offenses are generally classified as violent offenses and includes a violation of General Statutes § 53a-55a-Manslaughter in the First Degree with a Firearm. Thus, an inmate convicted of that offense, like the petitioner in this case, is now statutorily barred from earning any such credits to reduce his sentence.
C. § 54-125a at the Time of the Petitioner’s Offense
At the same time that the legislature enacted § 1.8-98e in 2011, it amended the parole eligibility provision in General. Statutes § 54-125a to provide that a person convicted of an offense where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e. General Statutes (Rev. to 2011) § 54-125a(b)(2), as amended by P.A. 11-51, § 25. The subsection of § 54-125a addressing parole hearings was similarly amended to account for earned RREC. P.A. 11-51, § 25. Thus, an inmate who committed a violent offense after the enactment of P.A. 11-51 § 25 would be eligible for parole release at eight-five percent, but that parole eligibility date could be reduced by earned RREC. The petitioner in the present case is one of those individuals.
D. § 54-125a as Amended in 2013
Effective July 1, 2013, the legislature again amended § 54-125a. P.A. 13-3. Specifically, with regard to offenses like one of those of which the petitioner was convicted, the legislature eliminated the language that permitted the parole eligibility date to be advanced by the application of any earned RREC. P.A. 13-3. Thus, under this 2013 amendment, "any risk reduction credit earned by an inmate, and not subsequently revoked, would still be applied to reduce his sentence, but would not be applied to advance his parole eligibility date. In other words, he would only be eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of his original sentence ..." Perez v. Commissioner of Correction, 326 Conn. 357, 365, 163 A.3d 597 (2017). Thus, once P.A. 13-3 took effect on July 2, 2013, the petitioner was no longer able to have his parole eligibility date advanced by RREC.
III. DEFENSES
The respondent raises three defenses: first, that there is no liberty interest in unearned RREC; second, that this court lacks subject matter jurisdiction over claims involving discretionary credits; and third, that the matter is not ripe. The court need not address the first defense as the petitioner is no longer claiming a liberty interest in RREC.
Subject Matter Jurisdiction. This court "lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Green v. Commissioner of Correction, 184 Conn.App. 76, 194 A.3d 857, cert. denied, 330 Conn. 933, A.3d (2018). "In order to invoke the trial court’s subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty." (Internal quotation marks omitted.) Joyce v. Commissioner of Correction, 129 Conn.App. 37, 41, 19 A.3d 204 (2011). In other words, "a petitioner must allege an interest sufficient to give rise to habeas relief." (Internal quotation marks omitted.) Perez v. Commissioner of Correction, supra, 326 Conn. 368.
This court has subject matter jurisdiction over both claims. The petitioner’s claim in count two is directly controlled by the decision in Breton v. Commissioner of Correction, supra, 330 Conn. 462, in which our Supreme Court decided on the merits, that the retroactive application of P.A. 13-3 violates the ex post facto clause. Implicit in that determination is that courts have subject matter jurisdiction over the retroactive application of changes to statutes involving discretionary credits. The petitioner’s claim in count one implicates the same fundamental concerns. Thus, this court exercises jurisdiction over count one as well. See Perez v. Commissioner of Correction, supra, 326 Conn. 375 quoting Johnson v. Commissioner of Correction, 258 Conn. 804, 818, 786 A.2d 1091 (2002) ("[T]he 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 [footnote omitted]").
Ripeness. Finally, respondent claims that the matter is not ripe. The court rejects this as well. Habeas relief is not limited to immediate release. See Preiser v. Rodriguez, 411 U.S. 475, 483, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1972); Peyton v. Rowe, 391 U.S. 54, 6667, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).
IV. EX POST FACTO ANALYSIS
"A law may be considered to violate the ex post facto clause if it punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed." (Internal quotation marks omitted.) State v. Banks, 321 Conn. 821, 844-45, 146 A.3d 1 (2016). The petitioner’s claims in the present case implicate the second aspect of the ex post facto clause. Perez v. Commissioner of Correction, supra, 326 Conn. 374.
In contrast to a claim grounded in the due process clause, "[t]he presence or absence of an affirmative, enforceable right is not relevant ... 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 has occurred. Critical to relief under the [e]x [p]ost [f]acto [c]lause 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 [c]lause if it is both retrospective and more onerous than the law in effect on the date of the offense." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 258 Conn. 817; Breton v. Commissioner of Correction, supra, 330 Conn. 462; see also State v. Banks, supra, 321 Conn. 845 ("[i]n order to run awry of the ex post facto clause, a law must be retrospective-that is, it must apply to events occurring before its enactment-and it must disadvantage the offender affected by it" [internal quotation marks omitted]).
Thus, there are "two critical elements that must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).
A. COUNT TWO-P.A. 13-3
This court’s determination of the petitioner’s claim in count two of the sixth amended petition is controlled by our Supreme Court’s decision in Breton v. Commissioner, supra, 330 Conn. 462. In Breton, our Supreme Court concluded that the retroactive application of P.A. 13-3 to an inmate who committed his offenses in 2011, after the enactment of P.A. 11-51, violated the ex post facto clause. The court reasoned that "it cannot reasonably be argued that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a(b)(2) does not alter the calculation of when [the petitioner] is eligible for parole ... It clearly does so by eliminating risk reduction credit from that calculation." (Citation omitted; internal quotation marks omitted.) Breton v. Commissioner of Correction, supra, 330 Conn. 462. Thus, because the statute’s retroactive application created a sufficient risk of increasing the measure of punishment attached to the petitioner Breton’s crime, our Supreme Court barred the respondent from applying P.A. 13-3 to Breton and those similarly situated. Just as in that case, the petitioner here committed his offense after the enactment of the 2011 amendment to § 54-125a(b). Just as in that case, upon enactment of P.A. 13-3, the board of pardons and parole stopped applying RREC to advance the petitioner’s parole eligibility date. There being no material difference between the facts of this case and those in Breton, the petitioner’s claim in count two is GRANTED.
B. COUNT ONE-P.A. 15-216
Not at issue in Breton was the 2015 amendment to § 18-98e. For the reasons that follow, this court concludes that its determination of the claim in count one is controlled by the reasoning of our Supreme Court in Breton and thus finds that the retroactive application of P.A. 15-216 to the petitioner also violates the ex post facto clause. Therefore, count one of the amended petition is also GRANTED.
Preliminarily, it is important to note that it is not necessary for an inmate’s sentence to be extended beyond that which was imposed by the sentencing court to give rise to an ex post facto violation. The United States Supreme Court has "never accepted the proposition that a law must increase the maximum sentence for which a defendant is eligible in order to violate the [e]x [p]ost [f]acto [c]lause. See, e.g., Lindsey v. Washington, [supra, 301 U.S. 397]." Peugh v. United States, 569 U.S. 530, 539, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). On the other hand, "mere speculation or conjecture that a change in law will retrospectively increase the punishment for a crime will not suffice to establish a violation of the [e]x [p]ost [f]acto [c]lause. See California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)." Id.
Neither does the statute in question have to be part of the sentence or punishment annexed to the crime, as respondent claims. The United States Supreme Court has held that a court "need not determine whether the prospect of the gain time was in some technical sense part of the sentence to conclude that it in fact is one determinant of petitioner’s prison term-and that his effective sentence is altered once this determinant is changed." Weaver v. Graham, supra, 450 U.S. 32; see Lindsey v. Washington, supra, 301 U.S. 401-02. The Court has explained that the "retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the [e]x [p]ost [f]acto [c]lause because such credits are one determinant of petitioner’s prison term ... and ... [the petitioner’s] effective sentence is altered once this determinant is changed." (Internal quotation marks omitted.) Breton v. Commissioner of Correction, supra, 330 Conn. 462, quoting Lynce v. Mathis, 519 U.S. 433, 445, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). The critical question is whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence. Weaver v. Graham, supra, 38 n.17. In other words, the clause "forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington, supra, 401; Breton v. Commissioner of Correction, supra, 330 Conn. 462.
The United States Supreme Court also has recognized that the presence of discretion does not displace the protections of the ex post facto clause. Garner v. Jones, 529 U.S. 244, 253, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); Breton v. Commissioner of Correction, supra, 330 Conn. 462. The fact that the credits are discretionary rather than mandatory does not dispose of the issue in respondent’s favor. Breton v. Commissioner of Correction, supra, 330 Conn. 462; Secretary, Dept. of Public Safety & Correctional Services v. Demby, 390 Md. 580, 617-18, 890 A.2d 310 (2006) ("The nature of the special project credits ... is irrelevant for the purposes of [the] ex post facto analysis. The focus of [the] analysis is not on whether these credits were mandatory or discretionary but, rather, whether the amendments to the regulations [that provide] these credits [have] the effect of lengthening [the] respondents’ sentences and [are] more ‘onerous’ than the prior law ... [T]he sentences of those individuals ... whose qualifying crimes have been changed to disqualifying crimes by the amendments, have clearly been lengthened").
The touchstone of this court’s inquiry is whether a given change in law presents a "sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner v. Jones, supra, 529 U.S. 250; California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Generally speaking, "[t]he question when a change in law creates such a risk is a matter of degree; the test cannot be reduced to a single formula." (Internal quotation marks omitted.) Peugh v. United States, supra, 569 U.S. 539; Breton v. Commissioner of Correction, supra.
As noted above, in Breton, our Supreme Court held that the retroactive application of P.A. 13-3, which prohibited the parole board from applying RREC to advance an inmate’s parole eligibility date, violated the ex post facto clause. The same logic applies with equal force here.
Retroactivity. The first question that needs to be answered is whether P.A. 15-216 is being applied retroactively. There is no doubt it is. Petitioner was earning RREC prior to the passage of P.A. 15-216. He is now not.
Detriment to the Petitioner. For inmates who committed crimes before its enactment, P.A. 15-216 substantially alters the consequences attached to a crime already completed, and therefore changes "the quantum of punishment." (Internal quotation marks omitted.) Weaver v. Graham, supra, 450 U.S. 33. Thus, it can only be constitutionally applied to the petitioner if it is not to his detriment. Id.
The critical question in this case is whether this retroactive application of § 18-98e as amended by P.A. 15-216 "ameliorates or worsens conditions imposed by its predecessor ..." Weaver v. Graham, supra, 450 U.S. 33. Consistent with our Supreme Court’s reasoning in Breton v. Commissioner of Correction, 330 Conn. 462, this court holds that the 2015 amendment to § 18-98e also "creates a sufficient risk that the petitioner will be incarcerated longer than he would have been under the 2011 amendment to the statute." Breton v. Commissioner of Correction, supra. As in Breton, the evidence before this court established that "although discretionary and subject to revocation for cause, risk reduction credits are awarded by the respondent routinely and are revoked only for acts of institutional misconduct." Breton v. Commissioner of Correction, supra. The evidence before this court demonstrated that once an inmate is deemed eligible to earn RREC and has signed the appropriate offender accountability form, the credits are awarded by a computer on a monthly basis. If an inmate violates the agreement or loses his right to earn RREC for a specific period of time, an employee of the correctional facility has to input the disciplinary report into the system, which then pauses the granting of RREC. An inmate who temporarily loses the ability to earn RREC can, by correcting the deficiency that caused him to lose that ability, regain it.
It cannot be credibly said that P.A. 15-216 does not alter the calculation of when the petitioner is eligible to discharge his sentence. Pursuant to the law in effect at the time of his offense, the petitioner was eligible to earn five days a month for the entirety of his forty-seven year sentence and have that amount applied to advance his maximum discharge date. P.A. 15216 eliminates his eligibility to do so. Thus, there is a "sufficient risk" that the actual amount of time the petitioner will have to serve is now greater as a result of P.A. 15-216, which was enacted after he had been sentenced for his crimes.
The credits could not, however, in any event be applied to reduce his sentence below the mandatory-minimum portion.
This is a case where P.A. 15-216 "made ineligible for early release a class of prisoners who were previously eligible"; Lynce v. Mathis, supra, 519 U.S. 447; like the petitioner. Just like in Breton, the law at the time of the petitioner’s offense "did not give the respondent discretion to refuse to include those credits in calculating" his discharge date. Breton v. Commissioner of Correction, supra, 330 Conn. 462. Just as in Breton, the petitioner here "is claiming a right only to the more beneficial formula for calculating his [discharge] date, not to the credits on which that formula is predicated." Id.
Thus, the reasoning and logic of Breton apply with full force to the facts of this case. This court’s determination of the petitioner’s claim in count one is thereby controlled by the decision in Breton.
V. CONCLUSION
The petitioner’s claim in count two is identical to the one raised in Breton v. Commissioner, supra, 330 Conn. 462. The rationale of Breton also applies with equal force to the petitioner’s claim in count one. Consistent with Breton, the respondent is barred from applying P.A. 13-3 and P.A. 15-216 to the petitioner in the instant case. For the foregoing reasons, the petition for writ of habeas corpus is GRANTED.