James v. Commissioner of Correction ( 2017 )

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JAMES v. COMMISSIONER OF CORRECTION—DISSENT
ESPINOSA, J., with whom VERTEFEUILLE, J., joins,
dissenting. I disagree with the majority that General
Statutes § 18-98d is ambiguous. Section 18-98d (a) (1)
(A) plainly and unambiguously provides that the respon-
dent, the Commissioner of Correction, shall count each
day of presentence confinement ‘‘only once for the pur-
pose of reducing all sentences imposed after such pre-
sentence confinement . . . .’’ (Emphasis added.) At
the time that the petitioner, Latone James, was sen-
tenced following his conviction of felony murder, the
respondent already had given him credit for his 651 days
of presentence confinement. Nothing in the language
of § 18-98d required the respondent to transfer the
credit for that presentence confinement to the petition-
er’s sentence for felony murder, and the petitioner
points to no such language. I also disagree with the
majority that the plain language of § 18-98d (a) (1) (B),
which expressly is inapplicable to provide the petitioner
with presentence confinement credit for a period of
imprisonment that he served after he was already a
sentenced prisoner, is unconstitutional as applied to
the petitioner. The sole authority on which the majority
relies for its conclusion that the plain and unambiguous
language of § 18-98d (a) (1) (B) violates the petitioner’s
right to substantive due process, Boyd v. Lantz, 487 F.
Supp. 2d 3 (D. Conn. 2007), is inapposite. Accordingly,
I respectfully dissent.
Because I do not dispute the majority’s summary of
the applicable facts, I need not repeat them in this
dissent. At issue are two periods of confinement for
which the petitioner seeks credit toward his fifty year
sentence for felony murder: (1) the 651 days during
which the petitioner was confined prior to being sen-
tenced to twenty years incarceration for his conviction
of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (2); and, (2) the 973 days of
imprisonment that the petitioner had served of that
twenty year sentence, prior to the date of his sentencing
to fifty years incarceration for his conviction of felony
murder in violation of General Statutes § 53a-54c. I
address each period of confinement in turn.
The respondent interpreted § 18-98d to preclude the
application of the petitioner’s 651 days of presentence
confinement to his sentence for felony murder because
those days had already been applied to reduce his sen-
tence on his conviction of robbery. The plain and unam-
biguous language of § 18-98d supports the respondent’s
decision. Section 18-98d (a) (1) (A) provides in relevant
part: ‘‘Any person who is confined to a community cor-
rectional center or a correctional institution . . .
under a mittimus or because such person is unable
to obtain bail or is denied bail shall, if subsequently
imprisoned, earn a reduction of such person’s sentence
equal to the number of days which such person spent
in such facility from the time such person was placed
in presentence confinement to the time such person
began serving the term of imprisonment imposed; pro-
vided . . . each day of presentence confinement shall
be counted only once for the purpose of reducing all
sentences imposed after such presentence confine-
ment . . . .’’
The key statutory language at issue is the phrase
‘‘each day . . . shall be counted only once for the pur-
pose of reducing all sentences imposed . . . .’’ General
Statutes § 18-98d (a) (1) (A). The plain meaning of this
statutory language is that any person who is sentenced
will receive one, and only one, credit for any presen-
tence confinement—not one credit for ‘‘each’’ sentence,
but one credit for ‘‘all’’ sentences. The provision in
General Statutes § 53a-38 (b) (1), that concurrent sen-
tences merge ‘‘and are satisfied by discharge of the
term which has the longest term to run,’’ does not inject
any ambiguity into the meaning of ‘‘all sentences.’’
Because this court previously has interpreted precisely
these two phrases, when reading these two statutes
together, we do not now interpret this statutory lan-
guage on a clean slate. It is well established that, ‘‘in
our construction of statutes, this court’s starting point,
when we already have interpreted the statute in ques-
tion, is our prior construction of that statute. . . . This
approach is consistent both with the principle of stare
decisis and the principle that our prior decisions inter-
preting a statute are not treated as extratextual sources
for purposes of construing that statute and may be
consulted as part of our reading of the statutory text.’’
(Citation omitted; internal quotation marks omitted.)
Velecela v. All Habitat Services, LLC, 322 Conn. 335,
338, 141 A.3d 778 (2016).
In Harris v. Commissioner of Correction, 271 Conn.
808, 823, 860 A.2d 715 (2004), this court construed the
language of § 18-98d (a) (1) (A), holding that ‘‘when
concurrent sentences are imposed on different dates,
the presentence confinement days accrued simultane-
ously on more than one docket are utilized fully on the
date that they are applied to the first sentence. Hence,
they cannot be counted a second time to accelerate
the discharge date of any subsequent sentence without
violating the language of § 18-98d (a) (1) (A).’’ As to
the interplay between § 18-98d (a) (1) (A) and § 53a-38
(b) (1), the court in Harris observed that ‘‘[t]he merger
process does not alter the fact that concurrent senten-
ces remain separate terms of imprisonment which the
legislature has permitted to be served at one time.’’
(Internal quotation marks omitted.) Id., 819. Pursuant
to our prior interpretation of § 18-98d (a) (1) (A) in
Harris, therefore, the plain language of the statute pre-
cludes the application of presentence confinement
credit that has been applied to one sentence to any
subsequent sentence, even if that subsequent sentence
is to run concurrently with the first sentence. Although
Harris involved concurrent sentences on more than
one docket, nothing in the opinion suggested that the
meaning of § 18-98d (a) (1) (A), read together with
§ 53a-38 (b) (1), would somehow be different when the
concurrent sentences that were imposed on different
dates shared the same docket number. Accordingly,
pursuant to the plain language of § 18-98d (a) (1) (A),
I would hold that the 651 days of presentence confine-
ment that the respondent had applied to the petitioner’s
sentence for robbery was unavailable to be applied to
the sentence for felony murder.
As to the 973 days during which the petitioner was
confined following his sentencing for his robbery con-
viction, the statutory language could not be more clear.
Section 18-98d (a) (1) (B) provides in relevant part:
‘‘[T]he provisions of this section shall only apply to a
person for whom the existence of a mittimus, an inabil-
ity to obtain bail or the denial of bail is the sole reason
for such person’s presentence confinement, except that
if a person is serving a term of imprisonment at the
same time such person is in presentence confinement
on another charge and the conviction for such imprison-
ment is reversed on appeal, such person shall be enti-
tled, in any sentence subsequently imposed, to a
reduction based on such presentence confinement in
accordance with the provisions of this section. . . .’’
It is undisputed that the petitioner was serving his sen-
tence for robbery during the 973 days for which he now
seeks credit toward his sentence for felony murder.
The plain language of § 18-98d (a) (1) (B) makes it clear
that the statute does not apply in this context. The
inclusion of an exception for imprisonment time that
has resulted from a conviction that is reversed on
appeal, and the absence of any such exception for an
unsuccessful attempt to prohibit the state from reprose-
cuting a charge that has resulted in a mistrial, makes
the language even more clear. If the legislature had
intended to make an exception for circumstances such
as those in the present case, it could have done so, but
it did not.
The majority concludes that, notwithstanding the
plain language of the statute, it is necessary to place a
judicial gloss on § 18-98d (a) (1) (B) in order to render
it constitutional. Specifically, the majority relies on
Boyd v. Lantz, supra, 487 F. Supp. 2d 5–6, 13, for the
proposition that, because the petitioner had raised a
double jeopardy challenge to the state’s reprosecution
of the felony murder charge, the failure to apply a por-
tion of the 973 days of imprisonment on the robbery
sentence to his felony murder sentence unconstitution-
ally penalizes him for exercising his double jeopardy
rights. Significantly, in Boyd, the United States District
Court for the District of Connecticut held only that § 18-
98d (a) (1) (B) was unconstitutional as applied to the
petitioner in that federal habeas action. Boyd had been
convicted of burglary, larceny and felony murder. Id.,
5. On appeal to this court, his felony murder conviction
was vacated; State v. Boyd, 214 Conn. 132, 570 A.2d
1125 (1990); but he remained incarcerated on the bur-
glary and larceny convictions. Boyd v. Lantz, supra, 5.
The state then brought a new felony murder charge
against him, which he unsuccessfully challenged on
double jeopardy grounds. Id. Ultimately, he pleaded
guilty to felony murder, and was sentenced to twenty-
five years incarceration on that conviction. Id., 6. The
respondent did not give Boyd credit for the period of
his confinement that fell between the day after his first
felony murder conviction was vacated and the day that
he finished serving his sentences for burglary and lar-
ceny. Id. The District Court held that because ‘‘the appli-
cation of [§ 18-98d] to a defendant in Boyd’s position
will result in a substantially longer period of incarcera-
tion should the defendant choose to exercise his double
jeopardy rights . . . the statute, as applied in this nar-
row factual context, burdens such a defendant’s funda-
mental due process right to challenge his re-
prosecution.’’ (Emphasis added; footnote omitted.) Id.,
11. The facts of the present case are distinguishable.
Whereas Boyd’s conviction of felony murder had been
vacated following a successful appeal, there was no
conviction in the present case. Instead, the state sought
to reprosecute following a mistrial on the felony murder
charge. Accordingly, the facts of the present case are
distinguishable from Boyd v. Lantz, supra, 3, and that
case is inapplicable.
Accordingly, I respectfully dissent.