Opinion
CV195000098S
10-30-2019
Michael Rios v. Commissioner of Correction
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
MEMORANDUM OF DECISION ON RESPONDENT’S MOTION TO DISMISS
Bhatt, J.
The petitioner, in his petition for writ of habeas corpus, claims that the respondent Department of Correction (DOC) is unconstitutionally applying Public Acts 2013, No. 13-3 § 59 (P.A. 13-3) and Public Acts 2015, No. 15-216, § 9 (P.A. 15-216) to him, thereby violating 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. The respondent counters that pursuant to our Supreme Court’s decision in Breton v. Commissioner of Correction, 330 Conn. 462, 196 A.3d 789 (2018) and this court’s decision in Grant v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV16-4007926-S (December 5, 2018, Bhatt, J.) (67 Conn.L.Rptr. 521), DOC has made the petitioner eligible to earn RREC and the petitioner is, in fact, earning RREC. Thus, the respondent seeks to dismiss the instant petition on the grounds that it is now moot. The petitioner counters that DOC is not applying the correct amount of credit as required by law. For the reasons that follow, this court must deny the motion to dismiss.
I. FACTUAL BACKGROUND
The petitioner was arrested on May 2, 2013. On September 29, 2014, the petitioner was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3) and sentenced to twenty years’ incarceration, execution suspended after fourteen years, followed by five years’ probation. On or about March 28, 2019, the petitioner filed the instant petition, alleging that DOC was not awarding him RREC and not applying those credits to advance his parole eligibility date and his discharge date. On May 15, 2019, counsel filed his appearance on behalf of the petitioner. On September 3, 2019, respondent filed the instant motion to dismiss, alleging mootness. The petitioner filed an objection to the motion to dismiss and the court heard argument on October 17, 2019. Respondent submitted the petitioner’s current timesheets as exhibits, demonstrating that the petitioner is, indeed, earning RREC and that those credits are being applied to advance both his parole eligibility and discharge dates.
The facts are not in dispute. The petitioner is within those class of individuals who committed their offense after the enactment of General Statutes § 18-98e and before the amendments to that statute through P.A. 13-3 and P.A. 15-216. Thus, he is squarely within the ambit of Breton v. Commissioner of Correction and Grant v. Commissioner of Correction. Further, the petitioner is earing four days of RREC each month, pursuant to Section 6 of DOC Administrative Direction 4.2A (revised as of 2/1/2016).
The petitioner does not dispute this, but at the hearing on the instant motion, clarified his complaint to state that DOC is required to award him five days of credit per month according to the statute and also award him a retroactive lump sum amount of RREC, which it is not doing.
II. DISCUSSION
Practice Book § 23-29 provides in relevant part:
The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:
(4) the claims asserted in the petition are moot or premature
This court "lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal citations and quotation marks omitted.) Green v. Commissioner of Correction, 184 Conn.App. 76, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal citations and quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 512, 876 A.2d 1178 (2005), overruled on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
"Mootness ... implicates subject matter jurisdiction, which imposes a duty on the [trial] court to dismiss a case if the court can no longer grant practical relief to the parties ... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Citations omitted; internal quotation marks omitted.) Paulino v. Commissioner of Correction, 155 Conn.App. 154, 160, 109 A.3d 516, cert. denied, 317 Conn. 912, 116 A.3d 310 (2015). "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant ... A case is considered moot if [the trial] court cannot grant the appellant any practical relief through its disposition of the merits ..." (Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013).
Respondent argues that DOC has the authority to alter its administrative directives to determine the requirements for earning RREC and its 2016 alteration to Administrative Directive 4.2A is within its discretionary authority as granted by statute. General Statutes § 18-98e provides, in relevant part, that "any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994 ... may be eligible to earn risk reduction credit toward a reduction of such person’s sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction ..." This, according to the respondent, means that the current grant of four days’ RREC to the petitioner is lawful. The petitioner argues that it is not. While the respondent may well be correct, in order for this court to rule so and dismiss the petition as the respondent asks would be to make a finding in favor of the respondent on the merits of the petition. The motion to dismiss is not the vehicle for such a determination.
The court finds that there exists a controversy between the parties. If a habeas court agrees with the petitioner that he is entitled to five days of credit per month, then there is relief that can be granted. This court does not opine on the merits of the petitioner’s claim, but simply notes that the matter is not moot because of the existence of an ongoing controversy. Therefore, the motion to dismiss on grounds of mootness must be denied.