Opinion
CV134005494S
02-23-2017
Darnell Murray #224485 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Darnell Murray, initiated this petition for a writ of habeas corpus and raised several claims. However, for reasons detailed below in the procedural history, the sole remaining claim tried to the court is the respondent's calculation of the petitioner's discharge date. At the heart of the petitioner's claim is that the respondent is not crediting him with time toward his sentence that should be credited to his time sheet. Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY/FINDINGS OF FACTS
On August 6, 2004, the petitioner was sentenced in the judicial district of Windham to a total effective sentence of fifteen years to serve. At the time the petitioner received the fifteen-year sentence, he was already a sentenced inmate in the respondent's custody. The fifteen-year sentence, which had the longest to run, became his controlling sentence. On August 4, 2005, the petitioner was transferred under the Interstate Agreement on Detainers (IAD) to the state of Virginia so that criminal charges pending against him in that jurisdiction could be resolved. Instead of returning the petitioner to Connecticut's custody, Virginia inadvertently released the petitioner on December 12, 2005. The respondent changed the petitioner's status as not being in custody, which began a period of " dead time" until such time as the petitioner returned to custody.
See General Statutes § § 54-186 et seq.
" Dead time" is prison parlance for presentence confinement credits that cannot be credited to a sentence because a defendant is already a sentenced inmate in one or more other matters while simultaneously having pending charges. See, e.g., State v. Hamilton, 228 Conn. 234, 255, 636 A.2d 760 (1994) (Norcott, J., concurring); Griffin v. Commissioner of Correction, 123 Conn.App. 840, 843 n.3, 3 A.3d 189, cert. denied, 299 Conn. 906, 10 A.3d 522 (2010). " Dead time" is also more generically understood to be any time that cannot be applied to a sentence because a sentenced prisoner is not in custody.
The petitioner became aware of his being sought as a fugitive within days of his inadvertent release. He did not return to Connecticut or contact any authority in Connecticut, aside from the correctional facility where he had been confined prior to being sent to Virginia to inquire how he retrieve his personal belongings. The petitioner went to New York and spent about two weeks there with family members and his children. Then the petitioner and one of his sons went to Pennsylvania for about five days, after which a friend of the petitioner's drove him to Florida. The petitioner was arrested in Florida and charged with offenses that he resolved via a guilty plea and sentence.
Connecticut Department of Correction (DOC) officials became aware of the petitioner's incarceration in Florida and lodged the mittimus for the fifteen-year sentence with Florida correction officials, so that a detainer would be placed on him. The petitioner was contacted by Lynn Milling, the former DOC Director of Sentence Calculation and Interstate Management, while he was in Florida serving his Florida sentence. Milling sought to have the petitioner agree to return to Connecticut custody by consenting to be extradited back to Connecticut. The petitioner neither consented to extradition nor requested a voluntary transfer, both of which are mechanisms by which the petitioner would have returned to Connecticut's custody. Milling also informed the petitioner that she would use all legal means available to have him returned to Connecticut.
The petitioner's return to Connecticut was effectuated by a coordinated plan between Florida, Virginia and Connecticut. Near the end of the petitioner's Florida sentence, Florida requested his transfer to Connecticut under the Interstate Corrections Compact (ICC). Virginia, which had inadvertently released the petitioner, agreed to pay the costs of the petitioner's transportation from Florida to Connecticut. On June 23, 2010, the petitioner returned to the respondent's custody through an ICC transfer and served the two remaining days of his Florida sentence while in Connecticut. Thereafter, beginning on June 25, 2010, the petitioner was in DOC's custody solely on the unexecuted portion of the fifteen-year sentence.
See General Statutes § § 18-105 through -107.
Due to the petitioner's claims asserted in his pro se petition, he received assigned counsel, although assigned counsel was permitted to withdraw pursuant to Practice Book § § 23-41 and 23-42. The matter was ordered set down for a hearing at which the petitioner had to show cause why the petition should not be dismissed for lack of subject matter jurisdiction. The parties appeared before the court, Sferrazza, Senior Judge, who dismissed all claims except the respondent's computation and application of days credited to the petitioner's sentence, which in turn impact the petitioner's discharge date.
A trial was held on January 10, 2017, at which the petitioner, DOC Correctional Counselor Supervisor Jaclyn Osden, and Records Specialist II Michele Deveau testified. The respondent entered seven documents into evidence as full exhibits.
Jaclyn Osden, the Corrections Counselor Supervisor in the Interstate Compact Office, who is Milling's successor, oversees and administers the ICC and the IAD. According to Osden, the petitioner went to Virginia under the IAD and should have been returned to Connecticut after he resolved his Virginia criminal charges. DOC has adopted policies and procedures, which are contained in a publication that DOC provides to inmates. The policies and procedures require that DOC stop an inmate's sentence time from running should an inadvertent release occur of a Connecticut inmate transferred under the IAD to another state. This is precisely what occurred with the petitioner's case. Osden emphasized that there is nothing that authorizes DOC to give the petitioner the 1, 653 days he is seeking.
Michele Deveau, a Records Specialist II with DOC, is a sentence calculation expert and has audited the petitioner's time sheet maintained by DOC. According to Deveau, when the petitioner was inadvertently released, his sentence stopped running because he was not in Connecticut custody, nor was he in any other state's custody per an agreement under the IAD or the ICC. Connecticut placed the petitioner only in Virginia, and has credited him with time served on his sentence until he was inadvertently released, but never placed him in Florida custody. Furthermore, the petitioner never agreed, while he was in Connecticut's custody, to a transfer to Florida. Deveau emphasized that DOC has no authority to give the petitioner the 1, 653 days, and that there is no law that provides for DOC to start up the sentence while the petitioner was in Florida. Citing to General Statutes § 53a-38, Deveau indicated that the petitioner had to return to Connecticut's custody for his sentence to begin running for sentence calculation purposes. The petitioner resumed serving his Connecticut sentence on June 23, 2010, when he was back in custody on the unexecuted portion of his fifteen-year sentence.
II
DISCUSSION
As a result of the show cause proceeding adjudicated by Judge Sferrazza, the sole remaining claim is narrow. The petitioner alleges that he is entitled to have the time period from December 12, 2005, when he was inadvertently released by Virginia, until June 23, 2010, when he returned to the respondent's custody, credited toward his fifteen-year sentence. DOC has computed this time period and, after an audit by DOC Records, determined that there are 1, 653 days from when the petitioner was inadvertently released until he came back into Connecticut's custody. It is these 1, 653 days, the entirety of the dead time, that the petitioner is seeking to have applied to his fifteen-year sentence and advance his discharge date. In April of 2012, the petitioner submitted a request with DOC to credit him with these days. However, that request was denied because he was not in custody on his Connecticut sentence for those 1, 653 days. The petitioner acknowledged during cross examination that it is impossible for him to have been in Connecticut's custody during the 1, 653 days at issue.
General Statutes § 18-84 defines the terms " inmate" and " prisoner" in relevant part as " . . . any person in the custody of the Commissioner of Correction or confined in any institution or facility of the Department of Correction until released from such custody or control . . ." Based on this definition, the court finds that the petitioner was not an inmate for the 1, 653 days he seeks to have applied toward his sentence. The petitioner was not in DOC custody, was not confined in a DOC institution or facility, and was not released by DOC from its custody and control. Stated somewhat differently, the petitioner was not a Connecticut inmate for the 1, 653 days he wants credited as time served.
General Statutes § 53a-38(b), the statute cited to by Ms. Deveau, states in relevant part that " [a] definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced . . ." As with § 18-84, the custody of an inmate by DOC is required for the to-serve portion of a sentence to be running until it is fully executed. The custody requirement is also reflected in General Statutes 53a-38(d), which provides that " [w]hen a person who is serving a sentence of imprisonment escapes, the escape shall interrupt the sentence and such interruption shall continue until the return of such person to the custody of the Commissioner of Correction."
Although the petitioner was inadvertently released by Virginia, he knew at that time that he still had an unexecuted portion of his fifteen-year sentence remaining to serve and that he should have been returned to Connecticut. See General Statutes § 54-186, Article V, (e) (" At the earliest practicable time consonant with the purposes of this agreement [i.e., IAD], the prisoner shall be returned to the sending state"). The petitioner testified that he became aware that he was sought as a fugitive a few days after the inadvertent release. But being sought as a fugitive did not prompt the petitioner to turn himself in to Connecticut authorities; instead, he went to New York, Pennsylvania and eventually Florida. The petitioner avoided Connecticut because he had time left to serve on his sentence. Subsequently, when in Florida custody, the petitioner did not waive extradition to again avoid returning to custody in Connecticut.
Two other subsections of § 54-186, Article V, are relevant. First, subsection (f) in relevant part provides that " [d]uring the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this [IAD] agreement, time being served on the sentence shall continue to run . . ." Subsection (g) provides that " [f]or all purposes other than that for which temporary custody as provided in this [IAD] agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state [i.e., Connecticut] and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law."
Although " escape" is not defined in the General Statutes, it clearly denotes an inmate not being in custody when the inmate should be in custody. The petitioner was aware that he had an unexecuted portion of his Connecticut sentence, took advantage of being inadvertently released when he instead should have been returned, and in several ways avoided returning to Connecticut. Any difference between " escape" and the facts and circumstances of the petitioner's inadvertent release is a difference without a distinction. Nevertheless, even disregarding such a difference without a distinction, there is no express authority, statutory or otherwise, for DOC to credit the petitioner with the 1, 653 days he is seeking. The petitioner was not in DOC's custody or control and, therefore, not entitled to have those days applied to his sentence. See also Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985) (habeas petitioner not entitled to have time while contesting extradition from Florida applied to his subsequently imposed sentence because he was not in Connecticut custody).
III
CONCLUSION
Accordingly, judgment shall enter denying the petition for a writ of habeas corpus.