Opinion
No. CV01-0003426
December 4, 2003
MEMORANDUM OF DECISION
On July 10, 2001, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended on March 13, 2003. The amended petition alleges that the respondent has incorrectly calculated the petitioner's presentence confinement and presentence confinement good time credits. The petitioner claims that these alleged errors violate the petitioner's right to equal protection of the law, respectively, under the Fourteenth Amendment of the federal constitution and Article First, Section Twenty of state constitution. As relief the petitioner seeks 367 days of presentence confinement and the commensurate presentence confinement good time credits to be applied to docket number CR94-0461224. The respondent denies the petitioner's claims and asserts as a defense that the respondent has correctly performed all time calculations.
On October 27, 2003, the petitioner filed proposed findings of fact that restate the factual claims in the amended petition as admitted to by the respondent's return. Also on that date the petitioner filed, in accordance with Practice Book § 23-36, certified copies of the superior court records of the five (5) dockets at issue in the habeas corpus petition as part of the expanded record. The matter then came before this court on October 29, 2003, for a trial on the merits, at which time the petitioner filed a motion for summary judgment. The motion for summary judgment indicates that there are no material facts in dispute requiring a trial, and that the petitioner is entitled to judgment as a matter of law. The respondent agreed that there were no material facts in dispute. Consequently, the parties agreed that this court should decide the case on the pleadings instead of proceeding with the trial since no further evidence was necessary.
Based on the pleadings and the expanded record, the court makes the following findings of fact. For the reasons set forth more fully below, the petition for a writ of habeas corpus is denied and judgment of dismissal is entered.
FINDINGS OF FACT
1. The petitioner was the defendant in five (5) separate criminal dockets at issue in this petition: CR87-338370 (hereinafter "docket 1") in the Superior Court, Judicial District of Hartford, Geographic Area 14; CR88-0340527 (hereinafter "docket 2") in the Superior Court, Judicial District of Hartford, Geographic Area 14; CR94-0461224 (hereinafter "docket 3") in the Superior Court, Judicial District of Hartford at Hartford; CR13-95536 (hereinafter "docket 4") in the Superior Court, Judicial District of Hartford at Geographic Area 13, Enfield; CR15-152262 (hereinafter "docket 5") in the Superior Court, Judicial District of Hartford at Geographic Area 15, New Britain.
2. On August 24, 1994, the petitioner was arrested in docket 3. The petitioner has been held by the Department of Correction continuously since August 25, 1994.
3. On September 20, 1994, the petitioner was arrested in docket 4.
4. On January 24, 1995, the petitioner was arrested in docket 5.
5. On September 22, 1995, the petitioner was arrested in dockets 1 and 2.
6. On September 22, 1995, the petitioner was sentenced in both dockets 4 and 5. In docket 4, the petitioner was sentenced to a total effective sentence of four and one half (4 1/2) years; the docket 5 sentence was six (6) months. The docket 4 and 5 sentences were ordered to run concurrent with each other.
7. On October 26, 1995, the petitioner was sentenced in both dockets 1 and 2. In docket 1, the petitioner was sentenced to two (2) years; the docket 2 sentence was three (3) years. The sentences imposed in dockets 1 and 2 were ordered to run consecutive to sentences running at the time of sentencing (i.e., the docket 4 and 5 sentences). The sentences in dockets 1 and 2 were ordered to run concurrent only with each other.
8. On June 5, 1996, the petitioner was sentenced in docket 3 to a total effective sentence of twelve (12) years, consecutive to sentences then currently being served (i.e., dockets 1, 2, and 4).
While the petition as admitted to by the respondent indicates that the sentence in docket 5 was one of the then currently being served sentences, the petitioner was sentenced to a term of six (6) months on September 22, 1995. Not taking into consideration any credits whatsoever, this six-month sentence imposed on September 22, 1995, which started running on that date, would have expired prior to June 5, 1996.
9. In docket 4, the petitioner received a credit of 367 days for presentence confinement credit, reflecting the time period from September 20, 1994 to September 22, 1995. The petitioner was also credited with the commensurate presentence confinement good time credit for the 367 days.
10. In docket 3, the petitioner was held in lieu of bond from September 20, 1994 to September 22, 1995. The petitioner was credited in docket 3 with twenty-six (26) days of presentence confinement credit.
11. Until sentenced on September 22, 1995, the petitioner was held in lieu of bond on both dockets 3 and 4.
DISCUSSION OF LAW
Both parties agree that there are no factual issues to be tried and that this court should apply the law to the facts as contained in the pleadings and expanded record. This court will, consequently, apply the law to the facts as they have been agreed upon and submitted via the expanded record.
As previously indicated, the petitioner seeks 367 days of presentence confinement credit and the commensurate presentence confinement good time credit on docket 3. The 367 days represents the time period of September 20, 1994 to September 22, 1995. During this time period the petitioner was simultaneously held in lieu of bond in docket 4 and has received the appropriate credits on docket 4. Thus, the petitioner is seeking to have applied to the docket 3 sentence presentence confinement credits which have also been applied to docket 4. The petitioner primarily relies on this court's decision in Harris v. Warden, Superior Court, judicial district of Tolland, Docket No. CV01-0003480 S (June 4, 2003, Fuger, Jr., J.) ( 35 Conn.L.Rptr. 114), in support of his argument that he is entitled to the relief he seeks. Pet'r Br., at 1.
Harris v. Warden is currently on appeal pending before the Supreme Court, docket number S.C. 17078.
The petitioner correctly distinguishes the facts of the present case from those of Harris. In Harris, only concurrent sentences were at issue in the determination of whether or not that petitioner was entitled to presentence confinement credit. In contradistinction to Harris, the petitioner in this matter is seeking presentence confinement credit on a sentence that was ordered to run consecutive to other sentences. For the reasons discussed more fully below, this court finds that Harris is inapplicable to the facts of the present matter.
The petitioner specifically alleges that the respondent's calculation of presentence confinement credit and presentence confinement good conduct credit violates General Statutes § 18-98d. Amended Pet., at 5. The petitioner then posits that "[p]rior to the imposition of sentence on September 22, 1995, the petitioner was, in effect, serving presentence confinement time on each pending docket number concurrently." Id. The petitioner then argues that when the consecutive sentences were imposed on September 22, 1995, the petitioner's concurrent sentences were "changed to consecutive sentences," and that to not credit the petitioner for the concurrent presentence confinement credit would violate his rights under the federal and state constitutions to equal protection. Id.
General Statutes § 18-98d provides in relevant part:
(a)(1) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed: provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person's presentence confinement[.]
In Harris, this court addressed the interrelationship of two statutes, General Statutes § 18-98d and § 53a-38 (b). and how the respondent had calculated the presentence confinement credit that petitioner had earned on his then controlling sentence. This court noted in Harris that the outcome of that case was controlled by the seminal case regarding the interrelationship between C.G.S. §§ 18-98d and 53a-38 (b), namely Payton v. Albert, 209 Conn. 23 (1988).
General Statutes § 53a-38 (b) provides: "A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest to run; (2) if the sentences run consecutively, the terms are added to arrive at an aggregate and are satisfied by discharge of such aggregate term."
"While 18-98d deals with the calculation of sentences in general, it does not specifically take up the matter of concurrent sentences. General Statutes 53a-38 (b) does." (Emphasis added.) Payton v. Albert, supra, 209 Conn. 32. The Payton court concluded that the correct construction of these two statutes results in a calculation method in which each docket is first examined and "adjusted for its authorized credits." (Emphasis added.) Id. If the sentences at issue were "ordered to run concurrently, [C.G.S. §]53a-38(b) direct[s] that their merged terms [are] satisfied by the discharge of the term which has the longest term to run." (Emphasis added.) (Internal quotation marks omitted.) Id. "The imposition of a concurrent sentence is not an empty act[.] . . . Rather, it allows the court the flexibility of setting definite periods of imprisonment that fit the particular defendant's situation, despite the number of offenses to which the sentences apply; they remain, however, separate terms of imprisonment which the legislature has permitted to be served at one time." (Emphasis added.) State v. Clemons, 168 Conn. 395, 409, cert. denied, 423 U.S. 855 (1975).
While General Statutes § 18-98d deals with the calculation of sentences in general and does not specifically take up the matter of concurrent sentences, it also does not specifically take up the matter of consecutive sentences. As in Payton, reference must be made to General Statutes 53a-38 (b). "General Statutes 53a-38 (b)(2) mandates that if multiple definite sentences run consecutively, the terms of the sentences must be added to arrive at an `aggregate term' and the sentences are satisfied by the discharge of the `aggregate term.'" (Emphasis added.) McCarthy v. Commissioner of Correction, 217 Conn. 568, at 577 (1991).
The term "aggregate" means "to collect into a whole." BLACK'S LAW DICTIONARY 66 (7th ed. 1999).
The language in General Statutes § 53a-38 (b)(1), which governs concurrent sentences, differs critically from General Statute 53a-38 (b) (2). General Statutes § 53a-38 (b) provides in relevant part: "A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run." (Emphasis added.)
This court held in Harris that the key to the resolution of that case, which involved General Statutes § 53a-38 (b)(1), was that the proper calculation of multiple concurrent sentences' presentence confinement credits lay in the concept of the merger of the terms. Concurrent sentences "remain . . . separate terms of imprisonment which the legislature has permitted to be served at one time." (Emphasis added.) State v. Clemons, 168 Conn. 395, at 409 (1975). The instant case is not controlled by General Statutes § 53a-38 (b)(1); instead, General Statutes § 53a-38 (b)(2) controls because the sentence imposed in docket 3 was ordered to run consecutively to other sentences then being served. Consequently, the merger concept in General Statutes § 53a-38 (b)(1) does not apply.
The result of the inapplicability of the merger concept is that overlapping periods of presentence confinement credit cannot be credited twice without violating General Statutes § 18-98d (a)(1)(A), which mandates that `each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement[.]" Thus, the individual consecutive terms are added to arrive at an aggregate term, a term comprised of several distinct terms running back-to-back, and not several distinct terms that overlap and are merged because the legislature has permitted this merged term to be served at one time.
Applying the foregoing to the facts of this case, the petitioner was sentenced on three different dates for the sentences at issue in this petition. Upon being sentenced on September 22, 1995 in dockets 4 and 5, the respondent credited the petitioner in docket 4 with 367 days of presentence confinement credit. The petitioner then was sentenced on November 25, 1995 in dockets 1 and 2 to a total effective sentence that was to run consecutive to sentences then being served. Upon being sentenced in docket 3 on June 5, 1996 to another consecutive term, the petitioner's discharge date was calculated based on the new aggregate term established upon the docket 3 consecutive sentence being imposed. Because the respondent had already credited the petitioner with 367 days of presentence confinement and the commensurate presentence confinement good time credit in docket 4, which represented the time period of September 20, 1994 from September 22, 1995, the respondent cannot again count and apply these identical 367 days to a consecutive sentence that comprises an aggregate term and not a merged term.
This court concludes, consequently, that the relief the petitioner seeks is in direct contravention to the mandates of §§ 18-98d (a)(1) (A) and 53a-38 (b)(2) and cannot be granted. Stated differently, the petitioner is not entitled to judgment as a matter of law.
Accordingly, the petition for a writ of habeas corpus is denied and judgment is entered dismissing the petition.
S.T. FUGER, JR., JUDGE