Opinion
CV165006825S
12-28-2017
Sidney WADE #317280 v. Carlton GILES, Board of Pardons and Paroles et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
The plaintiff, Sidney Wade, has brought this action seeking declaratory and injunctive relief against Carlton Giles, Chairman of the Board of Pardons and Parole (the " Board"), and the State of Connecticut. His amended complaint, filed on December 23, 2016 (Docket Entry # 112), seeks a declaration that the Board improperly determined his parole eligibility date pursuant to General Statutes § 54-125a and an injunction requiring the Board to " consider the plaintiff for a hearing" after he reaches the parole eligibility date the plaintiff contends is required under the statute. The plaintiff has moved for summary judgment.
I. FACTS
The plaintiff is currently serving a twenty-three-year sentence on his convictions for two counts of sale of narcotics by a person who is not drug dependent (General Statutes § 21a-278(b)), two counts of possession of narcotics with intent to sell by a person who is not drug dependent (General Statutes § 21a-278(b)) and one count of manslaughter in the second degree (General Statutes § 53a-56). Upon resentencing after an appeal, the plaintiff received a sentence of thirteen years on each of the narcotics charges, to run concurrently, and a ten-year sentence on the manslaughter conviction, to run consecutively to the sentence on the sale of narcotics charges. All of the charges arise out of circumstances leading to the death of Rebecca Calverley, who died as a result of consuming a methodose pill and two fentanyl lollipops provided to her by the plaintiff. Following his resentencing, the Board determined the plaintiff’s parole eligibility date pursuant to § 54-125a and notified the plaintiff that he would not be eligible for parole until he had served 85% of his sentence. There is no evidence before the court reflecting how the Board reached its conclusion.
He was initially found guilty on a charge of manslaughter in the first degree (General Statutes § 53a-55(a)(3)) but, after an appeal, that conviction was modified to a conviction for manslaughter in the second degree. State v. Wade, 297 Conn. 262, 998 A.2d 1114 (2010).
The plaintiff submitted a response he received from a Department of Corrections (DOC") counselor to his inquiry concerning that determination. The DOC counselor’s response was " based on the statute it is a[n] 85% crime."
The foregoing facts are not disputed. The plaintiff seeks summary judgment based on those facts. He maintains that the Board’s determination is inconsistent with the requirements of § 54-125a and violates the separation of powers by assuming the authority to designate what constitutes a " crime of violence" for purposes of applying § 54-125a(b). The defendants maintain that the Board has broad discretion under the statute to make parole eligibility determinations and that it did so in this case in accordance with the statute and its own regulations. The defendants oppose summary judgment but, notwithstanding the absence of any dispute over the material facts, they have not filed a cross motion for summary judgment.
General Statutes § 54-125a provides, in relevant part:
II. DISCUSSION
The plaintiff argues that, as a matter of law, multiple convictions for the sale of narcotics accompanied by a conviction for manslaughter in the second degree under General Statutes § 53a-56(a)(1) are not sufficient to bring him within the scope of § 54-125a(b). Section 54-125a(b) mandates that offenders convicted of certain specified offenses, or any other offense " where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person" are ineligible for parole until they have served at least 85% of their sentence. The plaintiff argues that a second degree manslaughter conviction under § 53a-56(a)(1), which is not specified in § 54-125a(b)(1), does not " involve the use, attempted use or threatened use of physical force against another person." Thus, he argues, he must be deemed parole eligible after he serves 50% of his sentence, pursuant to § 54-125a(a).
§ 53a-56 provides:
Section 54-125a(a) provides in relevant part that a person convicted with a sentence of more than two years, who has been confined for at least one-half of their total effective sentence, " may be allowed to go at large on parole ... in the discretion of a panel of the Board" upon consideration of certain factors. (Emphasis added.) Subsection (a) does not provide for a hearing on such person’s suitability for parole. Subsection (d) provides that the Board " may hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is not subject to the provisions of subsection (b) of this section upon completion by such person of seventy-five percent of such person’s definite or total effective sentence ..." (Emphasis added.) Subsection (b) mandates notwithstanding subsection (a), in relevant part, that " (2) A person convicted of ... (B) 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 under subsection (a) of this section until such person has served not less than eighty-five percent of the definite sentence imposed." Subsection (c) requires the Board to adopt regulations to ensure that such a person is not released until they have served 85% of their sentence. " Such regulations shall include guidelines and procedures for classifying a person as a violent offender that are not limited to a consideration of the elements of the offense or offenses for which such person was convicted." (Emphasis added.) General Statutes § 54-125a(c).
As directed, the Board has adopted regulations implementing the requirements of the statute. Regs., Conn. State Agencies § 54-125a-3 establishes the Board’s procedure:
(a) The Board shall make a determination whether the inmate is ineligible for parole until he or she has served not less than 85% of his or her definite sentence or sentences, pursuant to section 54-125a of the general statutes, as amended by public act 95-255. If such determination is in the affirmative, the board shall notify the inmate of his or her earliest parole eligibility date based upon serving not less than 85% of his or her definite sentence or sentences. The Board shall also notify the Department of Correction of all such determinations.
(b) The Board of Parole shall make a determination of an inmate’s earliest parole eligibility date. The Board, in making such determination, shall obtain, on a weekly basis, a list of all inmates sentenced within the previous week. A criminal history of the inmate, will be obtained which may include, but shall not be limited to, a State Police criminal records check, out of state criminal records check, police reports, previous parole and probation reports, and any other information that the Board deems relevant. Criminal justice data systems will be queried for information regarding the length of sentence for each specific charge. The Chairman of the Board of Parole shall convene a panel of two or more parole board members to review the information compiled. The panel will determine whether the inmate must serve 50% or 85% of his or her sentence before becoming eligible for Parole. The inmate and the Department of Correction will then be notified of the Board’s determination.
Regs., Conn. State Agencies § 54-125a-4 establishes the criteria the Board will apply:
(a) The board shall determine whether the statutory definition of the offense or any offenses for which an inmate is serving a sentence of imprisonment contains one or more elements which involve the use, attempted use or the threatened use of physical force against another person. Such inmates shall be ineligible for parole until they shall have served not less than 85% of their definite sentences pursuant to section 54-125a of the general statutes, as amended by public act 95-255.
(b) In all other cases, the board shall determine whether the underlying act or acts constituting the offense or any offense for which the inmate is serving a sentence of imprisonment, or any other relevant information, demonstrate that the inmate is a violent offender. Not less than thirty days prior to making such determination, the board shall notify the division of criminal justice, and shall consider all information and comment provided by that agency. If the board determines that an inmate meets such criteria, the inmate shall be ineligible for parole until he or she has served not less than 85% of his or her definite sentence or sentences pursuant to section 54-125a of the general statutes, as amended by public act 95-255.
(c) In classifying inmates under subsections (a) and (b) of this section, the board may consider any information which it deems to be relevant.
Finally, Regs., Conn. State Agencies § 54-125a-5 establishes guidelines, as directed by the legislature:
(a) The Board shall determine whether the statutory definition of the offense or any offenses for which an inmate was convicted of or is serving a sentence of imprisonment contains one or more elements which involve the use, attempted use or threatened use of physical force against another person. No such inmate shall become parole eligible until he or she has served not less than 85% of his or her definite sentence pursuant to the general statutes listed. The following Connecticut General Statutes are applicable to an inmate’s 85% determination: 53a-55, 53a-55a, 53a-56, 53a-56a, 53a-56b, 53a-57, 53a-59, 53a-59a, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-70, 53a-70a, 53a-70b, 53a-72b, 53a-92, 53a-92a, 53a-94, 53a-94a, 53a-95, 53a-101, 53a-102a, 53a-103a, 53a-111, 53a-112, 53a-134, 53a-135, 53a-136, 53a-167c, 53a-179b, 53a-179c, 53a-181c.
(b) In all other cases, the Board shall consider the underlying act or acts constituting the offense or any offense for which the inmate is serving a sentence of imprisonment or any other relevant information that demonstrates a tendency toward the use, attempted use or threatened use of physical force against another person. Information may include, but not be limited to, presentence reports. State Police criminal records check, sentencing dockets, Criminal Justice Information System information, police reports, out of state criminal records, parole and probation reports, victim(s) statement, witness statements, inmate’s prior incarceration history. After reviewing this information, the panel will determine whether the inmate has a past history and/or a series or a pattern of convictions for an offense or offenses described in subsection (a) of these guidelines.
Significantly in this case, § 54-125a-5 designates § 53a-56 as an offense the Board will treat as one requiring the service of 85% of the sentence before the inmate is eligible for parole.
In Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007), abrogated by Anthony A. v. Commissioner of Correction, 326 Conn. 668, 166 A.3d 614 (2017), the court reviewed and interpreted § 54-125a and the regulations adopted by the Board. In Baker, the court held that an inmate does not have a cognizable liberty interest in parole eligibility status sufficient to invoke the subject matter jurisdiction of the habeas court. That holding was recently abrogated in Anthony A. to the extent that a stigmatizing classification of an inmate bears negative consequences, potentially to include parole eligibility. This case does not pose the question whether the plaintiff has a liberty interest in his parole eligibility status; nor does it involve a stigmatizing classification. Rather, it concerns the proper interpretation of § 54-125a and the Board’s regulations as they relate to the plaintiff’s claim that he is entitled to parole eligibility once he has served 50% of his sentence. The validity of the court’s interpretation of the statute and regulations in Baker was not implicated. in Anthony A. and, therefore, it remains binding upon this court. See Vitale v. Commissioner of Correction, 178 Conn.App. 844, 868 (2017) (relying upon interpretation of § 54-125a in Baker, after the decision in Anthony A.); see generally State v. Moreno -Hernandez, 317 Conn. 292, 299, 118 A.3d 26 (2015) (previous judicial construction of statute is binding).
In Baker, referencing § 54-125a(a), the court said: " We see nothing in this text that affirmatively grants any inmate the right to parole eligibility after serving one-half of his or her sentence." (Emphasis in original.) On the other hand, subsection (b) does impose a mandate upon the Board not to consider certain inmates for parole until after they have served 85% of their sentence. The legislature delegated broad discretionary authority to the Board to determine the scope of that mandate under § 54-125a(b)(2). See § 54-125a(c). Pursuant to subsection (c), the Board is " not limited to a consideration of the elements of the offense or offenses for which a person was convicted" when making the determination whether an inmate falls within the scope of subsection (b)(2). In adopting its regulations, however, the Board has deemed certain offenses to be " applicable to an inmate’s 85% determination, " including § 53a-56. See Regs., Conn. State Agencies § 54-125a-5.
The plaintiff claims he is outside the scope of subsection (b)(2) because a conviction under § 53a-56(a)(1) requires only that a person " recklessly cause[ ] the death of another person, " i.e. that such person was aware of and consciously disregarded a substantial and unjustifiable risk that death would occur. See General Statutes § 53a-3(13). To the extent that the Board appears to treat a violation of § 53a-56(a)(1) as, per se, subject to the 85% mandate, the plaintiff claims the Board has exceeded the scope of its authority under § 54-125a(b). According to the plaintiff, because recklessness involves a lesser degree of culpability than intentional misconduct, a conviction for manslaughter in the second degree under § 53a-56(a)(1) does not constitute a " crime of violence" and, therefore, is outside the scope of § 54-125a(b). The court disagrees.
The defendants correctly point out that § 54-125a(b)(2) does not use the word " violence." Subsection (c), however, does make reference to a " violent offender" and the Board’s regulations also use the term " violent offender" in § 54-125a-4. In both instances, the term is used in the context of the Board’s determination of parole eligibility for persons convicted of offenses whose elements do not necessarily involve " the use, attempted use or threatened use of physical force."
The legislature has delegated broad discretionary authority to the Board to make all parole eligibility determinations. " [T]he decision to grant parole is entirely within the discretion of the board. Indeed, this court squarely has held that, [t]here is no statutory requirement that the panel [of the board] actually consider the eligibility of any inmate for parole, the statute does not vest an inmate with the right to demand parole, and there is no statutory provision which even permits an inmate to apply for parole ... For even if the inmate has complied with the minimum requirements of [the parole statute], the statute does not require the board to determine his eligibility for parole." (Internal quotations and punctuation omitted.) Baker v. Commissioner of Correction, supra, 281 Conn. 257, citing and quoting Taylor v. Robinson, 171 Conn. 691, 697-98, 372 A.2d 102 (1976). Thus, even if the plaintiff were correct in his interpretation of § 54-125a(b) and the legislative intent underlying that statute, the Board would still have the authority to designate certain offenses it will not consider for parole eligibility until a person convicted of that offense has served a percentage of his or her sentence in excess of 50%. § 54-125a(b). " [T]he only mandatory language in these provisions is that in subsection (b) preventing the board from considering violent offenders for parole before they have served 85 percent of their sentences." (Emphasis in original.) Baker v. Commissioner of Correction, supra, 281 Conn. 255.
Further, while the legislature may have contemplated a state of mind that would trigger its mandate, it also left it to the Board to determine which offenses involve the " use ... of physical force" and what constitutes a " violent offender." The Board has identified a number of offenses in § 54-125a-5 of the regulations that do not involve intentional misconduct but which the Board nevertheless considers do involve the " use of physical force" or " violence." These include, for example, causing the death of a person as a consequence of operating a motor vehicle while intoxicated (General Statutes § 53a-56b) and causing the death of a person by negligently operating a motor vehicle (General Statutes § 53a-57). When imposing the 85% mandate on the Board, the legislature made its designations, in § 54-125a(b)(1), identifying offenses as to which the Board had no discretion but to follow that mandate. In § 54-125a(c), however, the legislature left it to the Board to make its own designations. Nothing in the statute prevents the Board from making such designations. The proposition that one who recklessly causes the death of another person is violent or guilty of using physical force, by whatever means, is one the Board was free to adopt. Having done so, it was obliged to follow its own regulations when making a determination as to when the plaintiff will be eligible for parole.
The statute does not require the actual use of physical force in order to mandate the service of 85% of an offender’s sentence. Even the " attempted use or threatened use of physical force" is sufficient.
The plaintiff’s motion for summary judgment is denied.
(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or total effective sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the total effective sentence less any risk reduction credit earned under the provisions of section 18-98e or one-half of the most recent sentence imposed by the court less any risk reduction credit earned under the provisions of section 18-98e, whichever is greater, may be allowed to go at large on parole (1) in accordance with the provisions of section 54-125i, or (2) in the discretion of a panel of the Board of Pardons and Paroles, if (A) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require, that there is a reasonable probability that such inmate will live and remain at liberty without violating the law, and (B) such release is not incompatible with the welfare of society. At the discretion of the panel, and under the terms and conditions as may be prescribed by the panel including requiring the parolee to submit personal reports, the parolee shall be allowed to return to the parolee’s home or to reside in a residential community center, or to go elsewhere. The parolee shall, while on parole, remain under the jurisdiction of the board until the expiration of the maximum term or terms for which the parolee was sentenced less any risk reduction credit earned under the provisions of section 18-98e. Any parolee released on the condition that the parolee reside in a residential community center may be required to contribute to the cost incidental to such residence. Each order of parole shall fix the limits of the parolee’s residence, which may be changed in the discretion of the board and the Commissioner of Correction. Within three weeks after the commitment of each person sentenced to more than two years, the state’s attorney for the judicial district shall send to the Board of Pardons and Paroles the record, if any, of such person. (b)(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: (A) Capital felony, as provided under the provisions of section 53a-54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a-54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a-54c, (D) arson murder, as provided in section 53a-54d, (E) murder, as provided in section 53a-54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a-70a. (2) A person convicted of (A) a violation of section 53a-100aa or 53a-102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, 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 under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed. (c) The Board of Pardons and Paroles shall, not later than July 1, 1996, adopt regulations in accordance with chapter 541 to ensure that a person convicted of an offense described in subdivision (2) of subsection (b) of this section is not released on parole until such person has served eighty-five per cent of the definite sentence imposed by the court. Such regulations shall include guidelines and procedures for classifying a person as a violent offender that are not limited to a consideration of the elements of the offense or offenses for which such person was convicted. (d) The Board of Pardons and Paroles may hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is not subject to the provisions of subsection (b) of this section upon completion by such person of seventy-five per cent of such person’s definite or total effective sentence less any risk reduction credit earned under the provisions of section 18-98e. An employee of the board or, if deemed necessary by the chairperson, a panel of the board shall assess the suitability for parole release of such person based on the following standards: (1) Whether there is reasonable probability that such person will live and remain at liberty without violating the law, and (2) whether the benefits to such person and society that would result from such person’s release to community supervision substantially outweigh the benefits to such person and society that would result from such person’s continued incarceration. If a hearing is held, and if the board determines that continued confinement is necessary, the board shall articulate for the record the specific reasons why such person and the public would not benefit from such person serving a period of parole supervision while transitioning from incarceration to the community. If a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person. No person shall be released on parole without receiving a hearing. The decision of the board under this subsection shall not be subject to appeal. (e) The Board of Pardons and Paroles may hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is subject to the provisions of subdivision (2) of subsection (b) of this section upon completion by such person of eighty-five per cent of such person’s definite or total effective sentence. An employee of the board or, if deemed necessary by the chairperson, a panel of the board shall assess the suitability for parole release of such person based on the following standards: (1) Whether there is a reasonable probability that such person will live and remain at liberty without violating the law, and (2) whether the benefits to such person and society that would result from such person’s release to community supervision substantially outweigh the benefits to such person and society that would result from such person’s continued incarceration. If a hearing is held, and if the board determines that continued confinement is necessary, the board shall articulate for the record the specific reasons why such person and the public would not benefit from such person serving a period of parole supervision while transitioning from incarceration to the community. No hearing pursuant to the provisions of this subsection may proceed unless the parole release panel is in possession of the complete file for such applicant, including any documentation from the Department of Correction, the trial transcript, the sentencing record and any file of any previous parole hearing. Each member of the panel shall certify that all such documentation has been reviewed in preparation for such hearing. If a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person. No person shall be released on parole without receiving a hearing. The decision of the board under this subsection shall not be subject to appeal ...
(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide. (b) Manslaughter in the second degree is a class C felony.