Griffin v. Commissioner of Correction ( 2019 )

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TIMOTHY GRIFFIN v. COMMISSIONER
OF CORRECTION
(SC 20179)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that the transfer of
his criminal case, which involved crimes that he committed when he
was fourteen years old, to the regular criminal docket from the docket
for juvenile matters, and his subsequent sentence of forty years imprison-
ment with no eligibility for parole, violated the prohibition against cruel
and unusual punishment as set forth in the due process provisions of
the Connecticut constitution (article first, §§ 8 and 9). The petitioner,
who had been convicted of felony murder and conspiracy to commit
robbery in the first degree, claimed that contemporary standards of
decency regarding acceptable punishments for children who engage in
criminal conduct have evolved for purposes of his constitutional claim,
relying on two recent modifications to the juvenile justice laws (P.A.
15-183 and P.A. 15-84) as evidence of this evolution. Public Act 15-183
raised the minimum age of a child whose case is subject to transfer
from the docket for juvenile matters to the regular criminal docket from
fourteen to fifteen years and further limited the types of felonies that
are subject to such a transfer. After the passage of P.A. 15-84, all persons
who are serving a sentence of more than ten years of imprisonment for
a crime or crimes that were committed as a juvenile, including the
petitioner, may be eligible for parole. In support of his habeas petition,
the petitioner claimed that P.A. 15-183 applied retroactively to all persons
currently serving an adult length sentence for a crime committed at
fourteen years of age. The habeas court granted the respondent’s motion
for summary judgment and rendered judgment thereon, from which the
petitioner, on the granting of certification, appealed, seeking to have
this court extend to this case the rationale in State v. Santiago (318
Conn. 1), in which the court held that the legislature’s prospective
repeal of the death penalty demonstrated that contemporary standards
of decency had evolved such that the imposition of the death penalty on
inmates convicted of capital felonies committed prior to that prospective
repeal violated the state constitution’s prohibition against excessive and
disproportionate punishment, and that the prospective repeal of the
death penalty applied retroactively to all death sentences. Held:
1. The passage of P.A. 15-183 did not signal a change in society’s evolving
standards of decency, and, accordingly, the transfer of the petitioner’s
case from the docket for juvenile matters to the regular criminal docket
for crimes he committed when he was fourteen years old comported
with such standards and did not violate the state constitution’s prohibi-
tion against cruel and unusual punishment: this court declined to extend
the rationale of Santiago to the present case in light of the different
circumstances presented in those cases, differences in the historical
development of public policies concerning the imposition of the death
penalty and the transfer of juvenile cases, and the fact that the legisla-
ture’s prospective repeal of the death penalty applied under all circum-
stances whereas P.A. 15-183 did continue to allow for the transfer of a
fourteen year old’s criminal case to the regular criminal docket under
very narrow circumstances; moreover, this court declined the petition-
er’s invitation, in furtherance of his constitutional claim, to apply P.A.
15-183 retroactively to all persons currently serving an adult length
sentence for a crime committed at fourteen years of age.
2. The petitioner could not prevail on his claim that his sentence violated
the state constitution’s prohibition against cruel and unusual punishment
even after the provisions of P.A. 15-84 entitled him to eligibility for
parole after serving 60 percent, or twenty-four years, of his original
forty year sentence, this court having recently rejected similar claims
challenging the length of a sentence imposed after the transfer of a
juvenile’s criminal case to the regular criminal docket in State v.
McCleese (333 Conn. 378) and State v. Williams-Bey (333 Conn. 468),
and, accordingly, the Connecticut constitution did not entitle the peti-
tioner to be resentenced for his conviction: unlike inmates serving life
sentences and functional life sentences with no possibility of parole,
the petitioner now will be eligible for parole after serving twenty-four
years, one year less than the mandatory minimum sentence for adults
convicted of felony murder, providing him with a chance for reconcilia-
tion with society and hope for his future; moreover, it was not practicable
to grant the petitioner’s request to reverse his judgment of conviction,
to vacate his sentence imposed twenty years ago and to order a new
trial, as the petitioner, who is now approximately thirty-five years old,
is unable to have access to the juvenile justice system and its associated
rehabilitation programs because of his age, and the parole board would
be the better venue for relief when the petitioner becomes eligible for
parole, at which time the board will consider various factors, including
his age and circumstances when he committed the crimes.
(One justice concurring in part and dissenting in part)
Argued January 17—officially released August 23, 2019*
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Sferrazza, J., denied the
petitioner’s motion for summary judgment, granted the
respondent’s motion for summary judgment and ren-
dered judgment denying the petition, from which the
petitioner, on the granting of certification, appealed.
Affirmed.
John C. Drapp III, assigned counsel, for the appel-
lant (petitioner).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Emily D. Trudeau, assistant state’s attorney,
for the appellee (respondent).
Opinion
KAHN, J. The issue presented in this appeal1 is
whether the transfer of a fourteen year old defendant’s
case to the regular criminal docket and his subsequent
sentence of forty years imprisonment violate the prohi-
bition against cruel and unusual punishment enshrined
in the dual due process provisions of the constitution
of Connecticut, article first, §§ 8 and 9. The petitioner,
Timothy Griffin, appeals from the judgment of the
habeas court rendered in favor of the respondent, the
Commissioner of Correction. The petitioner argues that
Connecticut’s ‘‘standards of decency’’ regarding accept-
able punishments for children who engage in criminal
conduct have evolved. That evolution, the petitioner
contends, has rendered both the transfer of a fourteen
year old defendant’s case to the regular criminal docket
and the resultant sentencing as an adult unconstitu-
tional, in violation of the state prohibition against cruel
and unusual punishment.2 The respondent claims that,
because recent statutory modifications to the juvenile
justice system do not reflect changes in contempor-
ary standards of decency, the habeas court properly
granted the respondent’s motion for summary judg-
ment. The respondent specifically cites to No. 15-183
of the 2015 Public Acts (P.A. 15-183), which, inter alia,
raised to fifteen years the age of a child whose case is
subject to transfer to the regular criminal docket from
the docket for juvenile matters, and to No. 15-84 of
the 2015 Public Acts (P.A. 15-84), which makes certain
individuals eligible for parole. We agree that recent
statutory changes to the juvenile justice system—which
significantly limit, but do not entirely prohibit, the trans-
fer of a fourteen year old defendant’s case to the regular
criminal docket—do not evidence a change in contem-
porary standards of decency for purposes of the consti-
tutional claim raised by the petitioner in the present
case. We also conclude that, because the petitioner is
eligible for parole pursuant to P.A. 15-84, his forty year
sentence complies with established constitutional safe-
guards. Therefore, we affirm the judgment of the habeas
court.
The record reveals the following relevant facts and
procedural history. In December, 1997, the then four-
teen year old petitioner was arrested in connection with
the murder of a grocery store owner during an armed
robbery. The petitioner and an accomplice donned
masks and entered the grocery store, where the peti-
tioner shot and killed the store owner. The perpetrators
then emptied the cash register and fled. Afterward, the
petitioner ‘‘bragg[ed] about shooting the owner of the
store . . . .’’ At the time of the crime, the petitioner
had been removed from the normal school curriculum,
placed on juvenile probation, and required to wear an
electronic bracelet to monitor his location because,
allegedly, he had assaulted a teacher. The petitioner’s
case was automatically transferred to the regular crimi-
nal docket pursuant to General Statutes (Rev. to 1997)
§ 46b-127 (a). In 1999, he entered open guilty pleas to
felony murder in violation of General Statutes (Rev. to
1997) § 53a-54c and conspiracy to commit robbery in
the first degree in violation of General Statutes §§ 53a-
48 and 53a-134 (a) (2). He received a total effective
sentence of forty years imprisonment. At that time, the
petitioner was not granted the possibility of eligibility
for parole.
In the petitioner’s first habeas action in 2007, the
habeas court found that the petitioner failed to prove
that his pleas had not been entered knowingly, intelli-
gently and voluntarily but rendered judgment in his
favor on his claim of ineffective assistance of counsel
and restored his right to file for sentence review. In a
per curiam decision, this court affirmed the judgment
of the habeas court. Griffin v. Commissioner of Correc-
tion, 292 Conn. 591, 597, 973 A.2d 1271 (2009). Subse-
quently, upon the petitioner’s application for review,
the Sentence Review Division of the Superior Court
found that the sentence imposed was ‘‘neither inappro-
priate [nor] disproportionate.’’ State v. Griffin, Docket
No. CR-97-135279, 2010 WL 1794692, *2 (Conn. Super.
February 23, 2010).
After filing and then withdrawing a second habeas
petition, the petitioner filed the petition for a writ of
habeas corpus that is the subject of this appeal.3 The
parties filed cross motions for summary judgment, and
the habeas court granted the respondent’s motion.4 The
habeas court then granted the petitioner’s petition for
certification to appeal in September, 2017. See General
Statutes § 52-470 (g). This appeal followed.
This appeal presents issues of constitutional interpre-
tation and statutory construction, which are matters of
law subject to our plenary review. See, e.g., General
Statutes § 1-2z; Tannone v. Amica Mutual Ins. Co., 329
Conn. 665, 671, 189 A.3d 99 (2018); Honulik v. Green-
wich, 293 Conn. 698, 710, 980 A.2d 880 (2009). Summary
judgment shall be granted if, viewing the evidence in
the light most favorable to the nonmoving party, there
is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
See Practice Book § 17-49; see also Rodriguez v. Testa,
296 Conn. 1, 6–7, 993 A.2d 955 (2010). The party moving
for summary judgment has the burden of showing the
absence of any genuine issue of material fact. See, e.g.,
Rodriguez v. Testa, supra, 6–7.
I
We first consider whether the passage of P.A. 15-183
establishes that contemporary standards of decency
have evolved, such that it is unconstitutional to trans-
fer the case of a fourteen year old defendant from the
docket for juvenile matters to the regular criminal
docket under any set of circumstances. In advancing
this claim, the petitioner effectively asks this court to
apply P.A. 15-183 retroactively to all persons currently
serving an adult length sentence for a crime committed
at fourteen years of age. We decline to do so.
In 2015, the legislature passed P.A. 15-183, which,
among other things, as a general rule, raised the age of
a child whose case can be transferred from the docket
for juvenile matters to the regular criminal docket from
fourteen years to fifteen years. See General Statutes
§ 46b-127 (a). Shortly thereafter, this court concluded
that P.A. 15-183 applied retroactively to pending cases.
See State v. Nathaniel S., 323 Conn. 290, 292–93, 146
A.3d 988 (2016). We explicitly stated, however, that P.A.
15-183 did not apply to cases that had reached final
judgment, concluding that ‘‘we perceive no absurdity
in the fact that retroactive application of the act will
affect pending cases but not those that already have
reached a final judgment, as this will be true of most
retroactive amendments to procedural rules.’’ Id., 300.
That conclusion, of course, would apply in the context
of a habeas petition, which collaterally attacks a final
judgment.
At about the same time as the enactment of P.A. 15-
183 and our conclusion in Nathaniel S., we held, in a
death penalty case, that a statute could apply retroac-
tively—even to cases that had reached final judgment—
if society’s standards of decency had evolved so that a
previously constitutionally valid criminal punishment
now violated the state constitution’s prohibition on
cruel and unusual punishment. See State v. Santiago,
318 Conn. 1, 118–19, 139–40, 122 A.3d 1 (2015). In Santi-
ago, the defendant was found guilty of capital felony
for a murder committed in December, 2000, and was
sentenced to death. Id., 10–11. During the appeals pro-
cess, our legislature passed No. 12-5 of the 2012 Public
Acts (P.A. 12-5), which prospectively banned the death
penalty in all cases. See General Statutes §§ 53a-35a,
53a-45, 53a-46a, 53a-46b and 53a-54a; State v. Santiago,
supra, 11–12. The defendant sought review of whether,
‘‘although his crimes were committed prior to the effec-
tive date of [P.A. 12-5], that legislation nevertheless
represent[ed] a fundamental change in the contempo-
rary standard[s] of decency in Connecticut . . . ren-
dering the death penalty now cruel and unusual pun-
ishment . . . .’’ (Internal quotation marks omitted.)
State v. Santiago, supra, 12. In light of the passage of
P.A. 12-5, this court reexamined the constitutionality
of the death penalty pursuant to the state constitution,
focusing on the principle that, ‘‘in determining whether
a particular punishment is cruel and unusual in viola-
tion of [state] constitutional standards, we must look
beyond historical conceptions to the evolving standards
of decency that mark the progress of a maturing soci-
ety.’’ (Internal quotation marks omitted.) State v. Santi-
ago, supra, 43, quoting State v. Rizzo, 303 Conn. 71,
187–88, 31 A.3d 1094 (2011).
We explained in Santiago that, to determine whether
standards of decency are evolving, we rely on five objec-
tive criteria: (1) historical development of the punish-
ment at issue; (2) legislative enactments; (3) the current
practice of prosecutors and sentencing judges or juries;
(4) the laws and practices of other jurisdictions; and
(5) the opinions and recommendations of professional
associations.5 See State v. Santiago, supra, 318 Conn.
52; see also State v. McCleese, 333 Conn. 378, 407,
A.3d (2019). On the basis of these criteria, this
court concluded that the prospective repeal of the death
penalty, coupled with the fact that only one person had
been executed in this state since 1960, demonstrated
that contemporary standards of decency had evolved
such that the imposition of the death penalty on inmates
convicted under the repealed death penalty statutory
scheme violated the state constitution’s prohibition
against excessive and disproportionate punishment.
See State v. Santiago, supra, 139–40. Therefore, we
concluded, P.A. 12-5 applied retroactively, and all sen-
tences of death are now reduced to life imprisonment
with no possibility of release, even in those cases that
had long since gone to final judgment.6 Id.
The petitioner asks us to extend the rationale of San-
tiago to the circumstances of the present case, specifi-
cally, that we conclude that P.A. 15-183 indicates that
standards of decency have evolved and that P.A. 15-
183 applies retroactively to all persons currently serving
an adult length sentence for a crime committed at four-
teen years of age. We disagree that the rationale of
Santiago extends to the petitioner’s claims and empha-
size that the circumstances presented in Santiago were
extraordinary. First, as both this court and the United
States Supreme Court separately have recognized,
‘‘[d]eath is different.’’ State v. Rizzo, 266 Conn. 171,
226, 833 A.2d 363 (2003); see also California v. Ramos,
463 U.S. 992, 998, 103 S. Ct. 3446, 77 L. Ed. 2d 1171(1983) (recognizing ‘‘the qualitative difference of death
from all other punishments’’). Second, in Santiago, this
court was confronted with legislation that simultane-
ously banned all executions prospectively, yet pre-
served the sentences of death for those whose offenses
had been committed prior to a particular date. By con-
trast, P.A. 15-183, codified as amended at General Stat-
utes § 46b-127, merely establishes, as a general rule,
that transfers of cases involving fourteen year old defen-
dants to the regular criminal docket are barred. Under
other provisions of the current statutory scheme, how-
ever, there are circumstances, albeit rare, in which the
case of a fourteen year old defendant may be transferred
to the regular criminal docket. For the reasons set forth
more fully herein, we conclude that transferring the
case of a fourteen year old defendant to the regular
criminal docket comports with our evolving standards
of decency and, therefore, does not violate the constitu-
tion of Connecticut.
Our application of the five criteria set forth in Santi-
ago to the petitioner’s claim confirms our conclusion.
Historically, public policies guiding the treatment of
fourteen year old defendants have varied over time,
particularly as they pertain to children who commit
serious offenses like felony murder. Unlike the steady
400 year decline in the acceptability of imposing the
death penalty, the treatment of criminal defendants who
are children has fluctuated between policies favoring
the transfer of the cases of such defendants to the
regular criminal docket and those favoring retention in
the juvenile justice system. See State v. Santiago, supra,
318 Conn. 53–54. See generally E. Cauffman et al., ‘‘How
Developmental Science Influences Juvenile Justice
Reform,’’ 8 U.C. Irvine L. Rev. 21, 33–34 (2018) (‘‘[R]ising
juvenile crime in the latter half of the twentieth century
. . . [gave] rise to the ‘get tough’ policy agendas across
the country. . . . [A]s the fear of adolescent crime sub-
sided in many states, the pendulum swung back in favor
of judicial discretion. . . . Presently, juvenile transfer
policies vary from state to state.’’ [Footnotes omitted.]).
Therefore, the current shift toward the retention of
more fourteen year olds in the juvenile system as evi-
denced by P.A. 15-183, although relevant to the question
of whether standards of decency have evolved, carries
less weight than did P.A. 12-5.7 As the habeas court in
the present case observed, ‘‘[t]he legislature is free to
meander as long as its path stays with[in] constitu-
tional bounds.’’
‘‘[T]he clearest and most reliable objective evidence
of contemporary values is the legislation enacted by
the country’s legislatures.’’ (Internal quotation marks
omitted.) Atkins v. Virginia, 536 U.S. 304, 312, 122 S.
Ct. 2242, 153 L. Ed. 2d 335 (2002); see also State v.
McCleese, supra, 333 Conn. 407; State v. Santiago,
supra, 318 Conn. 59–60. Our detailed review of P.A. 15-
183 reveals that, although the changes effected by
the act certainly reflect our law’s ongoing movement
toward a juvenile justice system that is adapted to
the unique needs and vulnerabilities of children, it
allows some transfers, albeit under very narrow circum-
stances, of the cases of fourteen year olds to the regular
criminal docket. Accordingly, contrary to the petition-
er’s argument, P.A. 15-183 stops short of evidencing a
societal rejection of all such transfers.
In enacting P.A. 15-183, which, in relevant part,
amended General Statutes (Rev. to 2015) § 46b-127, the
legislature changed the process by which a child’s case
may be transferred from the docket for juvenile matters
to the regular criminal docket. Prior to the enactment
of P.A. 15-183, the case of a child aged fourteen and
older was automatically transferred to the regular crimi-
nal docket when the child was charged with a capital
felony, a class A or B felony, or felony arson. See Gen-
eral Statutes (Rev. to 2015) § 46b-127 (a) (1). Following
such transfer, at the state’s attorney’s request, the case
of a child charged with a class B felony could be trans-
ferred back to the docket for juvenile matters, but there
was no similar mechanism for those charged with a
capital felony or class A felony. See General Statutes
(Rev. to 2015) § 46b-127 (a) (2). A child at least fourteen
years of age charged with class C, D, or E felonies could
have his case transferred to the regular criminal docket
following a hearing to consider probable cause and the
best interests of the child and the public. See General
Statutes (Rev. to 2015) § 46b-127 (b) (1). Children who
were ages thirteen and under could not have their cases
transferred to the regular criminal docket under any
circumstances. See General Statutes (Rev. to 2015)
§ 46b-127.
The landscape for transfers changed with the passage
of P.A. 15-183. The act now allowed the automatic trans-
fer of cases to the regular criminal docket only for those
cases in which the offense had been committed by a
child who had attained fifteen years of age. See General
Statutes § 46b-127 (a) (1). Children fifteen years old
and older continue to have their cases automatically
transferred to the regular criminal docket when they
have been charged with a capital felony, a class A felony,
or arson murder, but the legislature limited which class
B felonies subject a child’s case to automatic transfer.
See General Statutes § 46b-127 (a) (1) and (3). For many
class B felonies, children charged with those offenses
are now afforded the same hearing process as those
charged with class C, D, or E felonies: a child at least
fifteen years of age charged with these offenses may
have his case transferred to the regular criminal docket
following a hearing to consider probable cause and the
best interests of the child and the public. See General
Statutes § 46b-127 (a) (3) and (b) (1). The effect is
that, now, children aged fourteen years old and younger
cannot have their cases transferred to the regular crimi-
nal docket under § 46b-127. See General Statutes
§ 46b-127.
Nevertheless, the legislature left in place another pro-
cedural mechanism by which a fourteen year old’s case
can be transferred to the regular criminal docket. Spe-
cifically, pursuant to General Statutes § 46b-133c, when
a child who has been designated a serious juvenile
repeat offender8 is charged with a felony committed
when he was at least fourteen years old and the child
does not waive his right to a trial by jury, then the court
must transfer the child’s case to the regular criminal
docket. General Statutes § 46b-133c (a), (b) and (f). The
prosecutor initiates this procedure by requesting that
the proceeding be designated a serious juvenile repeat
offender prosecution and must show by clear and con-
vincing evidence that such designation will serve the
public safety. General Statutes § 46b-133c (b). After
such designation, a serious juvenile repeat offender
prosecution shall be transferred to the regular criminal
docket only if the child does not waive his right to a
trial by jury. General Statutes § 46b-133c (f). If the child
does waive his right to trial by jury, then the proceeding
is held before the court. General Statutes § 46b-133c (c).
Significantly, the legislature amended General Statutes
(Rev. to 2015) § 46b-133c in 2015; see P.A. 15-84; the
same year that it amended General Statutes (Rev. to
2015) § 46b-127. See P.A. 15-183. The fact that the legis-
lature looked at both provisions in the same year and
did not raise the minimum age for transfer under § 46b-
133c provides a strong indication that the legislature
intended to preserve this narrow exception to the gen-
eral rule that the case of a fourteen year old cannot be
transferred to the general criminal docket.
It is clear that the legislature’s views on the appro-
priate punishment and procedural protections for chil-
dren in the criminal context are changing and that it
now prohibits the transfer of most cases of fourteen
year olds charged with felonies to the regular crimi-
nal docket, but the legislature stopped short of enacting
a complete ban under any circumstances. That is,
although a fourteen year old’s case will be transferred
only under very narrow circumstances and only when
the statutory procedural safeguards have been satisfied,
P.A. 15-183 does allow, within those limited circum-
stances, a fourteen year old’s case to be transferred to
the regular criminal docket. Because it left the proce-
dure in place for a fourteen year old’s case to be trans-
ferred to the regular criminal docket if he is adjudicated
a serious juvenile repeat offender, P.A. 15-183 does not
signal a change in society’s evolving standards of
decency rendering unconstitutional the transfer of a
fourteen year old’s case to the regular criminal docket
under any circumstances.
Public Act 15-183 plainly is distinguished in this
respect from P.A. 12-5, which prospectively repealed
the death penalty under any circumstances, even for
the most heinous crimes and for the most violent repeat
offenders. See State v. Santiago, supra, 318 Conn. 60–61
(‘‘For the first time in our state’s history, the governor
and a majority of both legislative chambers have now
rejected state sanctioned killing and agreed that life
imprisonment without the possibility of release is a just
and adequate punishment for even the most horrific
crimes. For any future crimes, the death penalty has
been removed from the list of acceptable punishment
that may be imposed in accordance with the law.’’).
Public Act 12-5 did not leave in place procedural mecha-
nisms by which even a few defendants could be sen-
tenced to death going forward. The complete prospec-
tive abolition of the death penalty signaled to this court
that related standards of decency had quite clearly
evolved, rendering the death penalty a violation of the
prohibition on cruel and unusual punishment in the
constitution of Connecticut in all cases, regardless of
when the crime was committed. See id., 62. In contrast,
P.A. 15-183 did not eliminate the transfer of all cases
of fourteen year olds to the regular criminal docket.
Finally, ‘‘[a]lthough trends within Connecticut are the
most direct and relevant indicators of contemporary
standards of decency with respect to the state constitu-
tion, we also look to developments in our sister states
. . . for additional input.’’ Id., 77–78; see also State v.
McCleese, supra, 333 Conn. 399; State v. Rizzo, supra,303 Conn. 190–91. When we do so, it becomes apparent
that transferring a fourteen year old defendant’s case
to the regular criminal docket is routinely done, espe-
cially in the instance of serious offenses. In fact, the
petitioner cites to only one state, New Jersey, which
has set fifteen years old as the minimum age at which
a child may have his case transferred to the regular
criminal docket, prohibiting the cases of fourteen year
olds from ever being transferred to the regular criminal
docket, even for crimes of murder. See N.J. Stat. Ann.
§ 2A:4A-26.1 (c) (West Cum. Supp. 2018). One additional
state, New Mexico, has a minimum transfer age of fif-
teen, but fourteen year old defendants charged with
murder and tried on the docket for juvenile matters,
can receive adult length sentences. See N.M. Stat. Ann.
§§ 32A-2-3 (J) (3) and 32A-2-20 (2010). The parties do
not dispute that the remaining forty-eight states—
including Connecticut—allow for a fourteen year old’s
case to be tried on the regular criminal docket in at
least some circumstances. Accordingly, Connecticut is
in accord with the vast majority of states. By contrast,
as we noted in Santiago, although the United States
remains ‘‘an anomaly, the last remaining holdout in
a historical period that has seen the Western nations
embrace abolitionism as a human rights issue and a
mark of civilization,’’ nationally, ‘‘the number of states
eschewing the death penalty continues to rise.’’ (Inter-
nal quotation marks omitted.) State v. Santiago, supra,
318 Conn. 78.
II
Having concluded that the transfer of the petitioner’s
criminal case to the regular criminal docket for a crime
he committed when he was fourteen years old does
not violate the Connecticut constitution, the remaining
issue we address is whether the petitioner’s forty year
sentence violates the prohibition against cruel and
unusual punishment even after the provisions of P.A. 15-
84 made the petitioner eligible for parole after serving 60
percent, i.e., twenty-four years, of his original sentence,
which was imposed when he was fifteen years old. We
have recently rejected similar claims challenging the
length of a sentence imposed after a child was tried and
convicted on the regular criminal docket. See generally
State v. McCleese, supra, 333 Conn. 382, 409 (granting
of parole eligibility pursuant to P.A. 15-84 was adequate
remedy for seventeen year old sentenced to eighty-
five years for murder and related offenses); State v.
Williams-Bey, 333 Conn. 468, 380, 385, A.3d
(2019) (granting of parole eligibility pursuant to P.A.
15-84 was adequate remedy for sixteen year old sen-
tenced to thirty-five years imprisonment for murder as
accessory); State v. Delgado, 323 Conn. 801, 802, 815,
151 A.3d 345 (2016) (defendant’s entitlement to parole
consideration pursuant to P.A. 15-84 was adequate rem-
edy for sixteen year old sentenced to sixty-five years
imprisonment). Because the petitioner is now eligible
for parole pursuant to the provisions of P.A. 15-84, the
state constitution does not require a resentencing. See
General Statutes § 54-125a (f) (1).
We acknowledge that a forty year sentence is a signifi-
cant amount of time. Felony murder, however, is one
of the most serious offenses that a person can commit
in our society. When the petitioner was initially sen-
tenced to forty years with no possibility of parole, the
petitioner’s scheduled release would have been in 2037,
when he would have been in his mid-fifties. With the
enactment of P.A. 15-84, the petitioner will now be
eligible for parole in 2023, after serving twenty-four
years, sixteen years earlier than originally anticipated
and one year less than the mandatory minimum sen-
tence for adults convicted of felony murder. See Gen-
eral Statutes §§ 53a-35a (2) and 53a-54c. At that time, the
petitioner will be in his late thirties. Unlike defendants
serving life sentences and functional life sentences with
no possibility of parole, the petitioner has a ‘‘chance
for fulfillment outside prison walls,’’ a ‘‘chance for rec-
onciliation with society,’’ and hope for his future after
serving his sentence. Casiano v. Commissioner of Cor-
rection, 317 Conn. 52, 79, 115 A.3d 1031 (2015), cert.
denied sub nom. Semple v. Casiano, U.S. , 136
S. Ct. 1364, 194 L. Ed. 2d 376 (2016); cf. id. (life sentence
can include sentence that is functional equivalent of life
by leaving juvenile defendant ‘‘no chance for fulfillment
outside prison walls, no chance for reconciliation with
society, no hope’’ [internal quotation marks omitted]).
Finally, we observe that the petitioner requests that
his judgment of conviction be reversed, that his sen-
tence that was imposed twenty years ago be vacated,
and that a new trial be ordered in compliance with
§ 46b-127. This requested relief is not practicable. The
petitioner seeks to have access to the juvenile justice
system and its associated rehabilitation programs, but
the petitioner, who is now approximately thirty-five
years old, is unable to participate in these programs
because of his age. As we recently observed in McCleese,
the inquiry of whether a child was incorrigible at the
time of sentencing is difficult to assess after the passage
of time. ‘‘[E]ven in cases in which only a few years have
passed, [i]t is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the
rare juvenile offender whose crime reflects irreparable
corruption.’’ (Internal quotation marks omitted.) State
v. McCleese, supra, 333 Conn. 403; see also Graham v.
Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010). ‘‘The parole board, under P.A. 15-84, § 1 (f),
on the other hand, bases its decisions on more recent
evidence and more ascertainable outcomes . . . [and]
relies more on evidence of actual rehabilitation and
focuses more on the offender’s ability to succeed out-
side of prison at the most relevant moment—just before
he will, potentially, be released.’’ State v. McCleese,
supra, 403. At this point, once the petitioner becomes
eligible for parole, the parole board is the better venue
for relief. At the appropriate time, the parole board will
evaluate the petitioner for parole release by taking into
account various statutory factors, including ‘‘the age
and circumstances of [the petitioner] as of the date of
the commission of the crime or crimes, whether [the
petitioner] has demonstrated remorse and increased
maturity since the date of the commission of the crime
or crimes . . . lack of education or obstacles that [the
petitioner] may have faced as a child or youth in the
adult correctional system, the opportunities for rehabil-
itation in the adult correctional system and the overall
degree of [the petitioner’s] rehabilitation considering
the nature and circumstances of the crime or crimes.’’9
General Statutes § 54-125a (f) (4) (C).
For the reasons we have stated, the transfer of the
petitioner’s case to the regular criminal docket and his
subsequent sentencing do not violate the prohibition
against cruel and unusual punishment enshrined in the
Connecticut constitution.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and PALMER,
McDONALD, D’AURIA and MULLINS, Js., concurred.
* August 23, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The petitioner appealed from the judgment of the habeas court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
The petitioner asserts three claims that we deem to be inadequately
briefed and, therefore, do not consider: an as-applied challenge, a substantive
due process challenge, and a procedural due process challenge.
3
The petitioner filed in the trial court a motion to correct an illegal
sentence pursuant to Practice Book § 43-22 on the basis of the same claim
that he has raised in the habeas petition at issue in this appeal. We have
explained that, ‘‘before seeking to correct an illegal sentence in the habeas
court, a defendant either must raise the issue on direct appeal or file a
motion pursuant to § 43-22 with the trial court.’’ Cobham v. Commissioner
of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). A petitioner’s failure
to raise the issue on direct appeal or in a motion to correct an illegal sentence
could risk procedural default. See id., 39–40. The respondent, however,
during a hearing on the petitioner’s motion to correct an illegal sentence
on May 24, 2017, advised the trial court that the habeas court should be the
proper forum for the petitioner’s claim. Consistent with this position, the
respondent concedes that he ‘‘did not pursue a procedural default claim in
[his] motion for summary judgment or when arguing against the petitioner’s
motion for summary judgment.’’ Because the respondent expressly waived
the special defense of procedural default, the ordinary rule requiring the
petitioner first to seek relief through a motion to correct an illegal sentence
does not apply in the present habeas action.
4
The petitioner acknowledges that his appeal from the habeas court’s
denial of his motion for summary judgment was not a final judgment for
the purposes of appeal. The petitioner, therefore, concedes that the single
issue in the present case is whether it was error for the habeas court to
grant the respondent’s motion for summary judgment.
5
We do not consider the current practice of prosecutors and sentencing
judges as they are bound by the applicable statutes and do not have the
discretion to deviate. Therefore, in the present case, they are not an indica-
tion of contemporary understandings of applicable sociological norms. In
addition, the petitioner did not reference opinions and recommendations
of professional associations that relate to the transfer of a fourteen year
old child’s case to the regular criminal docket; nor did our research discover
any that addressed this specific issue.
6
We utilize the framework that this court applied in Santiago as the
analysis of the evolving standards of decency, as it is the linchpin in the
arguments of both the petitioner and the respondent. See State v. Santiago,
supra, 318 Conn. 18 n.14. We observe that the parties also employed the
factors we set forth in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).
If we assume that the Geisler framework is applicable to the ultimate issue
of whether transferring the case of a fourteen year old defendant to the
regular criminal docket and his subsequent sentencing to forty years impris-
onment now constitute a violation of the Connecticut constitutional prohibi-
tion on cruel and unusual punishment, the Geisler factors are interwoven
into the evolving standards of decency analysis. See State v. Santiago, supra,
18 n.14.
7
We consider it significant that, in Santiago, we observed that this state
had executed only one person since 1960, and only after that person had
‘‘waived his right to further appeals and habeas remedies.’’ State v. Santiago,
supra, 318 Conn. 57, 58. By contrast, there is no indication that the transfer
of children’s cases to the regular criminal docket has ceased.
8
A serious juvenile repeat offender is ‘‘any child charged with the commis-
sion of any felony if such child has previously been adjudicated as delinquent
or otherwise adjudicated at any age for two violations of any provision of
title 21a, 29, 53, or 53a that is designated as a felony.’’ General Statutes
§ 46b-120 (10). A child may be adjudicated as delinquent if he has, while
under sixteen years of age, ‘‘(i) violated any federal or state law, except
section 53a-172, 53a-173, 53a-222, 53a-222a, 53a-223 or 53a-223a, or violated
a municipal or local ordinance, except an ordinance regulating behavior of
a child in a family with service needs, (ii) wilfully failed to appear in response
to a summons under section 46b-133 or at any other court hearing in a
delinquency proceeding of which the child had notice, (iii) violated any
order of the Superior Court in a delinquency proceeding, except as provided
in section 46b-148, or (iv) violated conditions of probation supervision or
probation supervision with residential placement in a delinquency proceed-
ing as ordered by the court.’’ General Statutes § 46b-120 (2) (A).
9
As we observed in McCleese, the parole board ‘‘does not overlook the
value of’’ the offender’s age and hallmarks of adolescence in determining
‘‘whether he has demonstrated substantial rehabilitation,’’ and ‘‘should, for
culpability purposes, consider [his] age and circumstances as of the date
of the commission of the crime.’’ (Emphasis in original.) State v. McCleese,
supra, 333 Conn. 403 and 404 n.12.