Opinion
No. CV 06 4001285
May 14, 2008
Memorandum of Decision
The facts of this case are essentially undisputed. The petitioner was arrested on April 3, 2002, and arraigned in court on April 4, 2002, for sale of narcotics, possession of narcotics, and possession of narcotics within 1,500 feet of a school. At the time, the petitioner was on supervised parole from a previous sentence and was simultaneously returned to prison on a parole hold. The petitioner completed his prior sentence on September 26, 2002. On October 7, 2002, the petitioner pleaded guilty to sale of narcotics and, on November 21, 2002, the court, Ward, J., sentenced the petitioner to thirty months in prison followed by forty-two months of special parole.
The sentencing transcript, while not absolutely clear, essentially reveals that Judge Ward agreed to give the petitioner pretrial jail credit from the time of his April 4 arraignment to the date of sentencing. The original mittimus, however, erroneously did not reflect that order. The department of correction (department) accordingly gave the petitioner fifty-five days of jail credit, reflecting the time between completion of his prior sentence on September 26, and his new November 21, 2002 sentence. The department acted pursuant to General Statutes § 18-98d(a)(1)(B), which provides in relevant part for jail credit when "the denial of bail is the sole reason for such person's presentence confinement . . ."
On November 26, 2004, the petitioner was released to supervised (as opposed to special) parole. On or about December 27, 2004, the petitioner filed a motion to correct sentence, claiming that he should have received 232 days of jail credit, pursuant to Judge Ward's order. On January 14, 2005, Judge Ward granted the motion by agreement. Accordingly, the clerk issued a corrected mittimus on January 25, 2005, ordering that the petitioner receive credit for the "days between April 4, 2002 and November 21, 2002."
There is no proof that either side is at fault for the nearly two-year delay in bringing this matter to the sentencing court's attention.
In the meantime, on January 24, 2005, the petitioner was returned to prison from supervised parole with new charges. On February 1, 2005, the department calculated that the petitioner had fifty-three days remaining to serve on his thirty-month sentence. Under the corrected mittimus, the petitioner was entitled to 231 days of credit minus the fifty-five he had already received, or a balance of 176 days. The department applied fifty-three of those days against the balance of the petitioner's sentence and released the petitioner to begin his term of special parole. This result left the petitioner with an unused supply of 123 days of credit that are at stake in this case.
The department's records reveal that the petitioner committed a technical violation of special parole in March 2006 and was returned to custody. The petitioner was released again in September 2006. In June 2007, the petitioner again violated special parole by speeding in Massachusetts at a rate of 118 miles per hour and failing to report the incident to his parole officer. The petitioner was again returned to prison, where he remains today under a board of pardons and paroles special parole mittimus ordering his confinement until, and completion of special parole on, August 2, 2008. This date represents a period of forty-two months after the completion of his prison sentence on February 1, 2005.
The petitioner initially claims that the department is required to apply his 123 days of unused jail credit to his special parole term so that he would have been entitled to release on April 3, 2008 and, as a practical matter, should be released today. The court disagrees. Our statutes provide that in no event shall [pretrial confinement] credit be allowed . . . in excess of the sentence actually imposed." General Statutes § 18-98d[c]. In State v. Boyd, 272 Conn. 72, 78, 861 A.2d 1155 (2004), our Supreme Court held that "the legislature clearly intended for the period of special parole to be distinct from the definite prison sentence, not included in it." See also id., 79 n. 6 (special parole was "intended as a sentencing option in cases where the judge wanted additional supervision after the completion of his prison sentence.") (Emphasis in original.) Thus, because the petitioner has already completed "the sentence actually imposed;" General Statutes § 18-98d[c]; the department lacks authority to apply unused jail credit to a subsequent incarceration, whether for violation of special parole or other causes. To do so would not only violate the statute, but would also violate public policy by allowing a prisoner to bank unused jail credits "knowing that they have a `line of credit' that can be applied against future sentences." (Internal quotation marks omitted.) Payton v. Albert, 209 Conn. 23, 34, 547 A.2d 1 (1988), overruled in part on other grounds, Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n. 44, 756 A.2d 1264 (2000). Thus, as a matter of law, the department has no authority to apply the petitioner's unused jail credits to his term of special parole.
The petitioner filed a revised motion for an expedited habeas corpus hearing on April 22, 2008. The court granted the motion and conducted the hearing on May 13, 2008.
In addition, as the testimony established, the department will award jail credit to a person arrested and detained on new charges while on special parole. Thus, the department does not treat this time as "dead time," for which no jail credit is available, as it does in the case of a person serving a prison sentence who is then arrested on new charges. This fact reinforces the notion that special parole is not part of the prison sentence.
The respondent argued in court that the petitioner is in procedural default for failing to request that Judge Ward modify the special parole term to reflect the petitioner's unused jail credit. Because the respondent did not specifically allege this version of procedural default in its return, the court does not consider it further. See Practice Book § 23-30(b).
The petitioner alternatively claims that, even if the department cannot as a matter of law apply jail credit to a special parole violator, the petitioner is nonetheless in prison longer than the court has ordered, thus violating his constitutional rights. It is true that the clerk's error in failing to record the court's order for 231 days of jail credit in the original mittimus has contributed to his dilemma. But the 123 days for which the petitioner actually seeks credit at this point represent time during which the petitioner was already in jail serving the remainder of his previous sentence. Thus, the credit that the petitioner is not receiving is credit to which he would have no statutory right in the first place. Further, the immediate cause of the petitioner's detention in prison is not the clerk's error but rather his violation of special parole. Simply put, if the petitioner had not violated special parole, he would not be in prison now. The petitioner's repeated violations of parole over the course of this case make it difficult to conclude that the petitioner is simply the victim of circumstance. Instead, the petitioner controlled his own destiny and chose to put himself in the predicament he now faces. For these reasons, the court cannot conclude that there was a constitutional or other violation that would entitle the petitioner to relief.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.