Opinion
No. CV03-0004076 S
November 29, 2004
MEMORANDUM OF DECISION
On July 28, 2003, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended on August 19, 2004. The amended petition raises a single claim, namely that the respondent has incorrectly calculated the petitioner's discharge date. The respondent's return denies the claim and asserts that the Department of Correction has correctly calculated the petitioner's release date.
The matter came before this court on October 22, 2004, for a trial on the merits. The court has reviewed all of the testimony and evidence and makes the following findings of fact. For the reasons set forth more fully below, the petition shall be denied.
FINDINGS OF FACT
The petitioner was the defendant in CR00-543981 in the Judicial District of Hartford, Geographic Area 14. On August 14, 2000, the petitioner was sentenced to a term of three years, execution suspended, and three years probation (hereinafter `2000 G.A. 14 sentence').
2. The petitioner thereafter became the defendant in several other criminal cases, CR01-106724, CR01-106725 and CR01-106726 in the Judicial District of Hartford, Geographic Area 16. On October 18, 2001, the petitioner was sentenced in each of these three criminal dockets (hereinafter `G.A. 16 sentences'). In each docket, the petitioner was sentenced to a term of two years to serve, to run concurrently, for a total effective sentence of two years to serve.
3. On November 1, 2001, the judgment in the G.A. 14 sentence was opened and the petitioner was re-sentenced to a term of twenty-three months for a violation of probation stemming from the G.A. 16 offenses and resultant convictions.
4. On November 12, 2002, the petitioner was arrested and charged in docket CR02-56903, Judicial District of Hartford, Geographic Area 14. The petitioner was sentenced in CR02-56903 on March 13, 2003, to a term of two years to serve, concurrent with sentences then being served (hereinafter `2003 G.A. 14 sentence').
DISCUSSION OF LAW
The gravamen of the petitioner's complaint is that he is entitled as a matter of law to have the 2003 G.A. 14 sentence deemed to have commenced on October 18, 2001, the date the G.A. 16 sentences were imposed. The petitioner articulates the following excerpt from a recent Appellate Court opinion as the basis for this claim: "In Ford v. Commissioner of Correction, [ 59 Conn.App. 823, 829, 758 A.2d 853 (2000)], this court held that ` concurrent sentences automatically begin to run at the same time.' Consequently, the petitioner's September sentence began to run retroactively from the date of his April sentences." Oliphant v. Commissioner of Correction, 83 Conn.App. 10, 15-16 (2004)." (Emphasis in original.) Amended Pet., at 2. Because of the petitioner's reliance on the above-quoted language as the basis for relief, this court necessarily must analyze the fact patterns and holdings in both Ford and Oliphant before addressing the instant petitioner's claim.
The Supreme Court granted the petition for certification filed in Oliphant. See Oliphant v. Commissioner of Correction, 270 Conn. 910, 853 A.2d 526 (2004). The appeal is limited to the issue of whether "the Appellate Court properly conclude[d] that the habeas court lacked subject matter jurisdiction over the petitioner's habeas corpus petition." Id.
In Ford, "the petitioner [was] convicted [on October 16, 1992] of the crimes of robbery in the first degree, robbery in the second degree and tampering with a witness, received a total effective sentence of twenty-five years, execution suspended after twenty-one years. The petitioner subsequently pleaded guilty in a second criminal case to burglary in the third degree and, on November 12, 1992, was sentenced to a term of three years imprisonment on the burglary conviction, to run concurrently with the sentence imposed for the robbery conviction.
"On February 18, 1997, after he had finished serving his three year sentence for the burglary conviction, the petitioner filed a two count petition for a writ of habeas corpus based on the robbery and burglary convictions. The habeas court struck the second count of the petition concerning the robbery conviction on grounds not related to this appeal." Ford v. Commissioner of Correction, supra, 59 Conn.App. 824-25.
"The issue presented to [the Ford] court require[d it] to determine whether the petitioner was in custody, thereby giving the habeas court subject matter jurisdiction to hear the habeas petition." Id., at 825-26. The Ford court held that "[w]ith regard to the burglary conviction in the present case, the petitioner was sentenced on November 12, 1992, to a tern of three years to be served concurrently with his robbery conviction. The burglary sentence was completed on November 12, 1995, prior to the petitioner's filing of his petition for habeas corpus. Because the petitioner's burglary sentence has expired, he is not in custody on the burglary sentence." Id., at 828.
"The petitioner [in Ford] cite[d] Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), for the proposition that a prisoner serving consecutive sentences is `in custody' under any one of the sentences for purposes of the habeas statute. In Garlotte, the petitioner was ordered to serve, consecutively, a three year prison sentence on a marijuana conviction and then concurrent life sentences on two murder convictions. He filed a habeas petition pertaining to the marijuana conviction after he had completed serving the three year sentence connected with that offense. The United States Supreme Court held that invalidation of the Garlotte's marijuana conviction would advance the date of his eligibility for release from his present incarceration. Garlotte's challenge, which would have shortened his term of incarceration if he had proved the unconstitutionality of his detention, implicated the core purpose of habeas review. Accordingly, the court held that Garlotte was `in custody' under his marijuana conviction when he filed his habeas petition.
"In the present case, the sentences were to be served concurrently rather than consecutively. Therein lies the fundamental difference between [ Ford] and Garlotte. The Garlotte court was concerned that if it held that a prisoner could not challenge a consecutive term that already had been served, but that a prisoner could challenge an unserved consecutive term; see Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); then the question of whether a prisoner serving consecutive sentences had met the `in custody' requirement would turn on the arbitrary decision of a trial court to have one consecutive sentence run before another. See Garlotte v. Fordice, supra, 515 U.S. 414-16. The concern expressed by the court in Garlotte does not arise in cases such as this one where the petitioner is serving concurrent sentences because concurrent sentences automatically begin to run at the same time. See General Statutes § 53a-38(b) ("definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced")." (Internal citations omitted.) Ford v. Commissioner of Correction, supra, 59 Conn.App. 829-30.
The concern expressed in Garlotte was the potential arbitrariness inherent in a sentencing court's sequencing of individual sentences comprising a consecutive sentence structure. Stated differently, a sentencing court imposing consecutive sentences could arrange then in such a manner as to prevent someone from challenging a conviction. Thus, for example, a very short sentence could be ordered to precede a much longer sentence. Discharge from the shorter sentence would then prevent the conviction from being challenged, simply because the petitioner would no longer meet the `in custody' requirement for the challenged conviction. This arbitrariness does not arise, however, when concurrent sentences are imposed. This is so because concurrent sentences begin to run at the time they are imposed, unless a stay of the sentence is ordered.
When viewed in the appropriate context, the language used in Ford to distinguish how concurrent sentences run from how consecutive sentences run is proper. Because concurrent sentences begin to run from the time of sentencing, it necessarily follows that they begin to run at the same time, namely from the sentencing date. Consecutive sentences can neither begin to run on the same day nor can they have any overlap. Each and every single consecutive sentence is served in an independent and isolated manner.
In Oliphant, the primary basis upon which the instant petitioner bases his claim for relief, the fact pattern presented by the various convictions at issue presented the identical jurisdictional threshold as did Ford. "On April 25, 1995, the petitioner was convicted of two crimes under docket numbers CR7-16272 and CR7-163805. On CR7-16272, he was sentenced to incarceration for one year; on CR7-163805 he was sentenced to incarceration for three months to run consecutive to the one year term for a total effective sentence of fifteen months incarceration (April sentences or April convictions). On September 1, 1995, the petitioner was convicted on other charges and sentenced to fifteen years of incarceration, execution suspended after seven years, with five years of probation (September sentence or September convictions). The September sentence was to run concurrent to the April sentences. One hundred and twenty-nine days passed between the imposition of the April sentences and the imposition of the September sentence.
"On November 16, 1998, the petitioner, acting pro se, filed the present petition for a writ of habeas corpus. In the space provided to list sentences on the preprinted form, the petitioner listed only the April sentences. On the form the petitioner claimed, inter alia, that his right to be free of double jeopardy was violated, that his attorney failed to contact certain witnesses and threatened other witnesses, that he was the victim of selective or vindictive prosecution and that he was not tried by an impartial jury. The form allowed the petitioner to challenge the legality of his convictions or the terms of his confinement. The form provided that it was to be used to challenge either the former or the latter, but not both. The petitioner challenged only the underlying convictions and not his confinement. Appended to the form were two typed pages containing a litany of allegations, including: a conspiracy had been formed against the petitioner because he had made a civil rights complaint; the petitioner's name had been changed without his consent which led to the denial of telephone privileges during his trials; a conflict existed between him and his attorney; and his attorney was ineffective for a variety of reasons." Oliphant v. Commissioner of Correction, supra, 83 Conn.App. 11-12.
"To determine whether the court's ruling [that it lacked subject matter jurisdiction] was correct, [the Appellate Court] first [had to] determine what the petitioner actually was challenging in his petition for a writ of habeas corpus. The petitioner argue[d] that the court should have interpreted the petition as challenging the September convictions as well as the April convictions. The petitioner also argue[d] that the court should have read the petition to claim that the April convictions were unlawfully enhancing the September convictions." Id., at 13.
Ultimately, the Oliphant court concluded that the habeas petition only challenged the April convictions. Id., at 14. The Appellate Court then had to "determine whether the petitioner was still in custody with respect to those convictions at the time of the filing of the petition . . .
"It is uncontested that at the time the petition was filed, the petitioner was no longer under the physical control of the respondent as a result of the April convictions. That fact alone suggests that the court did not have subject matter jurisdiction. Ford v. Commissioner of Correction, supra, 59 Conn.App. 826-30. The petitioner argues that if he is found to have been `in custody,' his habeas case would not be rendered moot as a result of the expiration of his sentence on the April convictions, as stated by the habeas court, because he could still be afforded practical relief. The petitioner maintains that if his April convictions were reversed, the 129 days he spent in jail for the April convictions prior to the start of the September sentence could be treated as presentence confinement credit under General Statutes § 18-98d for the September sentence. In light of our conclusion that the petitioner does not satisfy the `in custody' requirement, we do not have to address the petitioner's argument that his habeas action is not moot." Oliphant v. Commissioner of Correction, supra, 83 Conn.App. 14-15.
The Oliphant court nevertheless went on to "note . . . that the petitioner's argument is meritless. In Ford . . . this court held that `concurrent sentences automatically begin to run at the same time.' Consequently, the petitioner's September sentence began to run retroactively from the date of his April sentences. In other words, according to Ford the longer September sentence completely overlapped the April sentences. Thus, the petitioner's September sentence already has been shortened by 129 days. It is the petitioner's position, however, that Ford was incorrectly decided and that the [earlier] sentences and the September sentence did not overlap for 129 days. We decline to reconsider our holding in Ford." (Emphasis added.) Id., at 15-16.
The emphasized language was not necessary to the resolution of the jurisdictional issue and is classic obiter dictum. Consequently, the language from Oliphant relied upon by the instant petitioner is not binding on this court. See Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 337, 819 A.2d 859 (2003) (dicta of Supreme Court not binding on Appellate Court), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004); State v. Torres, 85 Conn.App. 303, 321 (2004).
Obiter dictum is defined as a "judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)." BLACK'S LAW DICTIONARY 1100 (7th ed. 1999).
Additionally, the reasoning advocated by the petitioner would lead to bizarre and untenable results. By way of example, a sentenced prisoner who is sentenced on an additional docket to a short concurrent term of incarceration would have, according to the petitioner's reasoning, the sentence start date relate back to when the sentence already being served began. It is very likely that this `related-back' start date would precede the sentencing date, possibly even the offense date of the short concurrent term. Applying the reasoning advocated by the petitioner would lead to the impossible scenario in which defendants have completed serving a sentence for an offense that has not yet been committed. This result is, aside from being bizarre, in stark contravention to C.G.S. § 53a-38(b), which states that: "A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced." (Emphasis added.)
A prisoner is "held" on a sentence upon the execution of a mittimus delivering the prisoner to the custody of the Commissioner of Correction. Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994), citing Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981). The 2003 G.A. 14 sentence was imposed on March 13, 2003. That sentence began to run when it was imposed — on March 13, 2003.
Consequently, and based upon the foregoing, this court concludes that the petitioner's claim that he is entitled as a matter of law to have the 2003 G.A. 14 sentence deemed to have commenced on October 18, 2001, is wholly without merit.
Judgment is entered denying the petition.
S.T. FUGER, JR, JUDGE