Anderson v. Commissioner of Correction ( 2021 )

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FRANCIS ANDERSON v. COMMISSIONER
OF CORRECTION
(AC 43455)
Bright, C. J., and Elgo and Abrams, Js.
Syllabus
The petitioner, who had been convicted of various crimes, sought a writ of
habeas corpus, claiming that he was entitled to certain presentence
confinement credit. While serving an aggregate ten year sentence for
previous convictions, the petitioner was charged with various crimes
after he assaulted a correction officer and was eventually deemed not
guilty by reason of insanity. After being transferred to the Whiting Foren-
sic Hospital, he assaulted residents and staff, and was charged with
various new crimes. During the ensuing criminal proceedings on those
new crimes, the petitioner did not post bond, and was transferred to
the Northern Correctional Institution. After he was convicted of the
charges stemming from the assaults at Whiting, he was sentenced to
another term of imprisonment to be served consecutively to the ten
year sentence he was already serving. In his petition for a writ of habeas
corpus, the petitioner claimed that he was entitled to a certain number of
days of presentence confinement credit on the sentence for the Whiting
crimes for the time that he spent as a pretrial detainee at Northern. The
habeas court rendered a judgment of dismissal, concluding that the
petition failed to state a claim on which relief could be granted, and
denied the petition for certification to appeal. On the petitioner’s appeal
to this court, held that the habeas court did not abuse its discretion in
denying the petitioner’s petition for certification to appeal, the petitioner
having failed to present an issue that was debatable among jurists of
reason, that could be resolved in a different manner or that deserved
encouragement to proceed further, as his claim did not present an issue
of first impression in Connecticut appellate courts; the habeas court
properly recognized that, as a sentenced prisoner in the custody of the
respondent Commissioner of Correction, the petitioner was being held
at Northern both pursuant to judgment mittimuses for his aggregate ten
year sentence and for his failure to make bond imposed as a result of
the assaults at Whiting, and, as a sentenced prisoner, he was not entitled
to have the jail credits earned on his aggregate ten year sentence applied
to any other sentence; moreover, pursuant to statute (§ 18-98d), presen-
tence confinement credit is earned when the failure to make bond is
the sole reason the petitioner is held at a correctional facility, and it is
settled law in Connecticut that § 18-98d does not allow a petitioner to
earn jail time credit and presentence confinement credit simultaneously.
Argued March 8—officially released May 18, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
James P. Sexton, assigned counsel, with whom, on
the brief, were Meryl R. Gersz, assigned counsel, and
Emily Graner Sexton, assigned counsel, for the appel-
lant (petitioner).
Janelle R. Medeiros, assistant attorney general, with
whom were Steven R. Strom, assistant attorney general,
and, on the brief, William Tong, attorney general, and
Clare E. Kindall, solicitor general, for the appellee
(state).
Opinion
BRIGHT, C. J. The petitioner, Francis Anderson,
appeals from the denial of his petition for certification
to appeal from the judgment of the habeas court dis-
missing his petition for a writ of habeas corpus on the
ground that it failed to state a claim upon which relief
could be granted. The petitioner claims that the habeas
court erred in denying his petition for certification to
appeal because his underlying claim for presentence
confinement credit presented an issue of first impres-
sion that had merit, and the court could have granted
relief. We dismiss the appeal.
The following procedural history is relevant to our
consideration of the petitioner’s appeal. In 2008, the
petitioner received a total sentence of five years of
incarceration for four separate convictions. In 2011, he
received an additional five year sentence for convic-
tions arising from his criminal conduct while in prison
for the previous convictions. The trial court ordered
the 2011 sentence to be served consecutively to the
petitioner’s 2008 sentence. While serving the aggregate
ten year sentence, the petitioner was charged with vari-
ous crimes after he assaulted a correction officer in
July, 2012. During the related criminal proceedings, he
was deemed not guilty by reason of insanity, and, in
2013, he was committed to the custody of both the
respondent, the Commissioner of Correction, and the
Psychiatric Security Review Board.
After being transferred to the Whiting Forensic Hospi-
tal (Whiting), the petitioner assaulted residents and
staff, and, as a result, he was charged with various new
crimes (Whiting charges). During the ensuing criminal
proceedings, the state requested that the court impose
a monetary bond on the petitioner, and the court
granted that request, setting the bond at $100,000. The
petitioner did not post bond, and, after his arraignment
on August 25, 2014, he was transferred to the Northern
Correctional Institution (Northern). On April 29, 2016,
the petitioner was convicted of the Whiting charges,
and, on September 12, 2016, he was sentenced to a
seven year term of imprisonment, execution suspended
after five and one-half years, with two years of proba-
tion. The court ordered that sentence to be served con-
secutively to the ten year aggregate sentence the peti-
tioner already was serving.
On July 7, 2017, the petitioner filed a petition for a
writ of habeas corpus claiming that he was entitled
to 750 days of presentence confinement credit on the
sentence for the Whiting charges for the time, between
August 25, 2014, and September 12, 2016, that he spent
at Northern while awaiting trial on the Whiting charges.
On July 1, 2019, the habeas court sent notice to the
parties that it would be holding a hearing to determine
whether the petition failed to state a claim upon which
habeas relief could be granted. Following the hearing,
the court, on August 16, 2019, rendered a judgment of
dismissal, concluding that the petition failed to state a
claim upon which relief could be granted. The petitioner
thereafter filed a petition for certification to appeal
from the court’s judgment, which the court denied. This
appeal followed.
The petitioner claims that the habeas court erred in
denying his petition for certification to appeal because
his underlying claim for presentence confinement credit
was an issue of first impression in Connecticut appellate
courts, that it had merit, and that it was a claim upon
which relief could have been granted by the habeas
court. We disagree.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. . . . A petitioner may establish an abuse
of discretion by demonstrating that [1] the issues are
debatable among jurists of reason . . . [2] [the] court
could resolve the issues [in a different manner] . . .
or . . . [3] the questions are adequate to deserve
encouragement to proceed further. . . . The required
determination may be made on the basis of the record
before the habeas court and applicable legal principles.
. . . If the petitioner succeeds in surmounting that hur-
dle, the petitioner must then demonstrate that the judg-
ment of the habeas court should be reversed on its
merits. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification . . . we review the petitioner’s substan-
tive claims for the purpose of ascertaining whether
those claims satisfy one or more of the three criteria
. . . for determining the propriety of the habeas court’s
denial of the petition for certification. Absent such a
showing by the petitioner, the judgment of the habeas
court must be affirmed.’’ (Internal quotation marks
omitted.) Torres v. Commissioner of Correction, 175
Conn. App. 460, 467–68, 167 A.3d 1020 (2017), cert.
denied, 328 Conn. 912, 179 A.3d 1271 (2018). Previously,
this court has concluded that issues of first impression
in Connecticut appellate courts must meet one or more
of the three criteria. See, e.g., id. (habeas court abused
discretion in denying petition for certification to appeal
because issues of whether General Statutes § 18-98e
gives pretrial detainees opportunity to earn risk reduc-
tion earned credits to be applied retroactively to senten-
ces, and whether failure to do so would be violation of
pretrial detainees’ right of equal protection, presented
two issues of first impression in Connecticut); see also
Small v. Commissioner of Correction, 98 Conn. App.
389, 391–92, 909 A.2d 533 (2006) (petitioner’s claim
deserves encouragement to proceed further when no
appellate case has decided precise issues), aff’d, 286
Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small
v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d
336 (2008); Graham v. Commissioner of Correction,
39 Conn. App. 473, 476, 664 A.2d 1207 (petitioner’s claim
regarding appropriate jail time credit under unique cir-
cumstances not considered previously by any appellate
court in Connecticut was one of first impression and,
therefore, was debatable among jurists of reason and
court could resolve issue in different manner), cert.
denied, 235 Conn. 930, 667 A.2d 800 (1995).
In the present case, after conducting a review of the
petitioner’s claim, we are not persuaded that his claim
presents an issue of first impression for any Connecticut
appellate court. Rather, it presents a unique and, for the
reasons set forth in this opinion, wholly unpersuasive
interpretation of the relevant statutes and of our
Supreme Court’s decision in State v. Anderson, 319
Conn. 288, 127 A.3d 100 (2015). We, thus, proceed to
examine the merits of the petitioner’s claim that, pursu-
ant to the plain language of General Statutes § 18-98d
and other related statutes, he was entitled to presen-
tence confinement credit toward his sentence on the
Whiting charges for the time he was held at Northern
awaiting trial on those charges.
The petitioner contends that the only reason he was
transferred to Northern, rather than being allowed to
remain at Whiting, which is not a correctional facility,
was because he was unable to post bond, and, therefore,
pursuant to § 18-98d, he should have been given presen-
tence confinement credit toward his sentence on the
Whiting charges, in addition to the credit he was being
given toward the aggregate ten year sentence he already
was serving. We are not persuaded.
‘‘[I]ssues of statutory construction raise questions of
law, over which we exercise plenary review. . . .
When construing a statute, [o]ur fundamental objective
is to ascertain and give effect to the apparent intent of
the legislature. . . . In seeking to determine that mean-
ing, General Statutes § 1-2z directs us first to consider
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . A statute is ambig-
uous if, when read in context, it is susceptible to more
than one reasonable interpretation. . . . Additionally,
statutory silence does not necessarily equate to ambigu-
ity. . . . If the language of the statute is clear and
unambiguous, it is assumed that the words themselves
express the intention of the legislature and there is
no room for judicial construction.’’ (Citations omitted;
internal quotation marks omitted.) Torres v. Commis-
sioner of Correction, supra, 175 Conn. App. 470.
Section 18-98d provides: ‘‘(a) (1) Any person who
is confined to a community correctional center or a
correctional institution for an offense committed on or
after July 1, 1981, 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 imprison-
ment imposed; provided (A) each day of presentence
confinement shall be counted only once for the purpose
of reducing all sentences imposed after such presen-
tence confinement; and (B) the provisions of this sec-
tion shall only apply to a person for whom the existence
of a mittimus, an inability 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 imprisonment is reversed on appeal,
such person shall be entitled, in any sentence subse-
quently imposed, to a reduction based on such presen-
tence confinement in accordance with the provisions
of this section. In the case of a fine, each day spent in
such confinement prior to sentencing shall be credited
against the sentence at a per diem rate equal to the
average daily cost of incarceration as determined by
the Commissioner of Correction.
‘‘(2) (A) Any person convicted of any offense and
sentenced on or after October 1, 2001, to a term of
imprisonment who was confined to a police station
or courthouse lockup in connection with such offense
because such person was unable to obtain bail or was
denied bail shall, if subsequently imprisoned, earn a
reduction of such person’s sentence in accordance with
subdivision (1) of this subsection equal to the number of
days which such person spent in such lockup, provided
such person at the time of sentencing requests credit
for such presentence confinement. Upon such request,
the court shall indicate on the judgment mittimus the
number of days such person spent in such presentence
confinement.
‘‘(B) Any person convicted of any offense and sen-
tenced prior to October 1, 2001, to a term of imprison-
ment, who was confined in a correctional facility for
such offense on October 1, 2001, shall be presumed to
have been confined to a police station or courthouse
lockup in connection with such offense because such
person was unable to obtain bail or was denied bail
and shall, unless otherwise ordered by a court, earn a
reduction of such person’s sentence in accordance with
the provisions of subdivision (1) of this subsection of
one day.
‘‘(C) The provisions of this subdivision shall not be
applied so as to negate the requirement that a person
convicted of a first violation of subsection (a) of section
14-227a and sentenced pursuant to subparagraph (B)
(i) of subdivision (1) of subsection (g) of said section
serve a term of imprisonment of at least forty-eight
consecutive hours.
‘‘(b) In addition to any reduction allowed under sub-
section (a) of this section, if such person obeys the
rules of the facility such person may receive a good
conduct reduction of any portion of a fine not remitted
or sentence not suspended at the rate of ten times the
average daily cost of incarceration as determined by
the Commissioner of Correction or ten days, as the case
may be, for each thirty days of presentence confine-
ment; provided any day spent in presentence confine-
ment by a person who has more than one information
pending against such person may not be counted more
than once in computing a good conduct reduction under
this subsection.
‘‘(c) The Commissioner of Correction shall be respon-
sible for ensuring that each person to whom the provi-
sions of this section apply receives the correct reduc-
tion in such person’s sentence; provided in no event
shall credit be allowed under subsection (a) of this
section in excess of the sentence actually imposed.’’
The petitioner also directs us to General Statutes
§ 17a-561, which provides: ‘‘The Whiting Forensic Hos-
pital shall exist for the care and treatment of (1) patients
with psychiatric disabilities, confined in facilities under
the control of the Department of Mental Health and
Addiction Services, including persons who require care
and treatment under maximum security conditions, (2)
persons convicted of any offense enumerated in section
17a-566 who, after examination by the staff of the diag-
nostic unit of the hospital as herein provided, are deter-
mined to have psychiatric disabilities and be dangerous
to themselves or others and to require custody, care
and treatment at the hospital, (3) inmates in the custody
of the Commissioner of Correction who are transferred
in accordance with sections 17a-512 to 17a-517, inclu-
sive, and who require custody, care and treatment at
the hospital, and (4) persons committed to the hospital
pursuant to section 17a-582 or 54-56d.’’
The petitioner argues that ‘‘a reading of the relevant
statutes renders their meaning ‘plain and unambiguous’
and ‘does not yield absurd or unworkable results.’ . . .
A reading of the relevant portions of . . . § 18-98d
states that an individual is entitled to receive credit for
presentence confinement at a ‘community correctional
center or correctional institution’ if the ‘sole reason for
such person’s presentence confinement’ is ‘an inability
to obtain bail or the denial of bail.’ . . . Further, Gen-
eral Statutes § 53a-168 (1) defines ‘[c]orrectional institu-
tion’ as ‘the facilities defined in section 1-1 and any other
correctional facility established by the Commissioner
of Correction.’ Pursuant to General Statutes § 1-1 (w),
‘ ‘‘[c]orrectional institution’’, ‘‘state prison’’, ‘‘commu-
nity correctional center’’ or ‘‘jail’’ means a correctional
facility administered by the Commissioner of Correc-
tion.’ . . . Therefore, the plain and unambiguous
meaning of § 18-98d is that if an individual is confined
at a correctional institution as a pretrial detainee, and
the only reason for such confinement is because the
individual did not obtain or was denied bail, then that
individual is entitled to receive credit for the time spent
as a pretrial detainee [toward] a subsequently imposed
sentence.’’ (Citations omitted.)
The petitioner further argues that he ‘‘was found [not
guilty by reason of insanity] for crimes he committed
while he was incarcerated, and, on August 15, 2013,
he was subsequently committed to the custody of the
Commissioner of Mental Health and Addiction Services
and transferred to Whiting. On August 25, 2014, the
petitioner was removed from Whiting and transferred
to the custody of the Commissioner of Correction and
placed at Northern because he failed to post bond
imposed as a result of assaults he committed while he
was at Whiting. The petitioner was held at Northern as
a pretrial detainee from August 25, 2014, through his
sentencing on September 12, 2016. Given this back-
ground, a plain reading of the relevant statutes supports
his assertion that he is entitled to presentence credit
for the time he spent as a pretrial detainee [toward]
his sentence imposed on September 12, 2016. The sole
reason the petitioner was removed from Whiting and
placed at Northern, a correctional institution, is due to
his failure to post bond. If the petitioner had posted
bond on August 25, 2014, he would have remained at
Whiting and would not have been placed at a correc-
tional institution. Therefore, pursuant to § 18-98d, the
petitioner is entitled to presentence credit for the time
he spent at Northern before the imposition of his Sep-
tember 12, 2016 sentence.’’
The crux of the petitioner’s argument is that Whiting
is not a correctional facility, and the only reason he
was removed from Whiting and sent to Northern was
because he could not post the bond ordered by the trial
court. Therefore, he argues, his placement at Northern
was a presentence confinement on the Whiting charges.
Had he posted bond, he argues, he would have remained
at Whiting, a noncorrectional facility. The petitioner,
however, ignores the fact that he also was a sentenced
prisoner, still serving his ten year aggregate sentence,
although placed at Whiting, and he was earning credit
against that aggregate ten year sentence during the time
he was at Whiting and then at Northern. Nonetheless,
the petitioner asserts that he is entitled to credit twice,
first going toward the remainder of his aggregate ten
year sentence and next going toward the Whiting
charges. We disagree.
As this court has explained previously: ‘‘By its very
terms . . . § 18-98d is directed at offsetting the length
of a prison sentence by the period of presentence con-
finement. Credits are properly applied to reduce the
number of days of sentenced confinement to reflect
days spent in presentence confinement . . . . Once
presentence confinement credit has been fully utilized
to reduce a sentence, it cannot be applied again to
reduce another sentence.’’ (Citation omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Bernstein v. Commissioner of Correction, 83
Conn. App. 77, 81–82, 847 A.2d 1090 (2004).
In King v. Commissioner of Correction, 80 Conn.
App. 580, 836 A.2d 466 (2003), cert. denied, 267 Conn.
919, 841 A.2d 1191 (2004), the petitioner, Eric King, had
been charged by information on May 18, 1995, and was
held in lieu of bond for 264 days until February 6, 1996,
when he was sentenced to nine months imprisonment
on that charge. Id., 582. The respondent applied the 264
days of presentence confinement to advance the release
date of the sentence to February 15, 1996. Id. On June
15, 1995, however, while King was being held in presen-
tence confinement under the May 18, 1995 information,
he was arrested and held in lieu of bond under a second
information. Id. Thus, he was held in presentence con-
finement for 236 days under two different informations.
Id. After King was sentenced under the second informa-
tion to an eighteen year term of imprisonment, the
respondent refused to apply the 236 days of presentence
confinement to the sentence stemming from the June
15, 1995 information because it already had been
applied to advance the release date on the sentence
stemming from the May 18, 1995 information. Id., 582–
83. King then filed a petition for a writ of habeas corpus.
Id., 583.
In affirming the habeas court’s judgment of dismissal,
this court explained: ‘‘Once a day of presentence con-
finement has been credited to reduce the term of sen-
tenced confinement under one information, it cannot
be credited again to reduce the term of sentenced con-
finement under another information.’’ Id., 587. In Harris
v. Commissioner of Correction, 271 Conn. 808, 860 A.2d
715 (2004), our Supreme Court discussed this court’s
decision in King, cited it with approval, and concluded
that it contained an accurate interpretation of § 18-98d.
Id., 828–29.
In Washington v. Commissioner of Correction, 287
Conn. 792, 802, 950 A.2d 1220 (2008), our Supreme Court
explained that, in Harris, it ‘‘announced for the first
time [its] conclusion that § 18-98d (a) prohibits the
respondent from crediting multiple sentences, imposed
on different days, with the same presentence confine-
ment when a prisoner had been imprisoned simultane-
ously in multiple dockets.’’ It further explained and
reaffirmed its holding in Cox v. Commissioner of Cor-
rection, 271 Conn. 844, 852, 860 A.2d 708 (2004), that,
‘‘once the respondent has applied presentence confine-
ment credit to a prisoner’s first imposed sentence, the
credit has been fully utilized.’’ Washington v. Commis-
sioner of Correction, supra, 802–803.
Although recognizing the very clear holdings that
credit cannot be applied twice, the petitioner contends
that, pursuant to the plain language of § 18-98d, his case
is different because the ‘‘sole reason’’ he was trans-
ferred to Northern from a noncorrectional facility was
because he did not pay the court-ordered bond. He
contends that this fact distinguishes his case from cases
similar to those cited previously in this opinion. The
respondent argues that the petitioner’s failure to pay
his bond was not the ‘‘sole reason’’ for his confinement
at Northern. We agree with the respondent.
Pursuant to § 18-98d (a) (1) (B), ‘‘[a]ny person who
is confined to a . . . correctional institution . . .
because such person is unable to obtain bail . . . shall,
if subsequently imprisoned, earn a reduction of such
person’s sentence equal to the number of days . . .
such person spent in such facility . . . provided . . .
the provisions of this section shall only apply to a person
for whom the existence of . . . an inability to obtain
bail . . . is the sole reason for such person’s presen-
tence confinement . . . .’’ (Emphasis added.)
In the present case, the habeas court recognized that,
as a sentenced prisoner in the custody of the respon-
dent, the petitioner, although found not guilty by reason
of insanity for the crimes he committed in July, 2012,
and sent to Whiting, nevertheless, simultaneously was
being held pursuant to judgment mittimuses for his ten
year aggregate sentence. The court held, therefore, that
the petitioner was not confined at Northern solely on
the basis of his failure to pay the court ordered bond.
The court explained: ‘‘[T]he entire time [the petitioner]
was at Whiting, he was receiving jail credits under [his
aggregate ten year] sentence and so that sentence still
existed . . . . [O]ther than the fact that the Whiting
commitment was involved, [the petitioner] is no differ-
ent than any other prisoner who is serving a sentence
[when he] picks up new criminal charges and, even
though [he already is] serving a prison sentence, a court
determines that some bond . . . should be imposed.
It still, again, does not remove the ultimate fact that [the
petitioner], as a sentenced prisoner, was not entitled
to the credits on any other sentence . . . . It’s not the
sole reason he was in custody, nor is he entitled to use
that credit twice.’’ We agree with the reasoning of the
habeas court.
The petitioner contends that the sole reason he was
transferred to Northern was his failure to make bond.
Even if we were to agree, for the sake of argument,
that the sole reason for the petitioner’s transfer was
his failure to make bond, the reason for the petitioner’s
transfer from Whiting is not a consideration of § 18-
98d. The statute requires that the failure to make bond
be the sole reason the petitioner is held at a correctional
facility. In the present case, the petitioner was a sen-
tenced prisoner, serving a ten year aggregate sentence,
in the custody of the respondent, when, in July, 2012,
he committed new crimes. In subsequent criminal pro-
ceedings, he was found not guilty by reason of insanity,
and he was sent to Whiting. The mittimuses for his
aggregate ten year sentence continued to exist, how-
ever, and the petitioner was receiving credit on those
sentences for the days he was at Whiting, where he
simultaneously was held in the custody of the respon-
dent and the Psychiatric Security Review Board. His
commitment to the respondent did not dissolve simply
because he was found not guilty by reason of insanity
for later crimes and sent to Whiting. Had that commit-
ment to the Psychiatric Security Review Board ended,
the petitioner would have been required to serve the
remainder of his aggregate ten year sentence at a correc-
tional facility. When he failed to make bond and was
ordered to Northern, he was held there both as a person
who failed to make bond and as a sentenced prisoner
serving an aggregate ten year sentence. Section 18-98d
(a) (1) (B) requires that the failure to make bond be ‘‘the
sole reason for such person’s presentence confinement
. . . .’’ The statute says nothing about the reason for
the person’s transfer to the correctional facility. In the
present case, the petitioner both failed to make bond
and was a sentenced prisoner still serving an aggregate
ten year sentence for which he was earning credit. His
confinement at Northern was not ‘‘solely’’ due to his
inability to make bond. Our law is clear—a prisoner
cannot ‘‘earn presentence confinement credit while
serving a sentence.’’ (Emphasis in original.) Bernstein
v. Commissioner of Correction, supra, 83 Conn. App.
81.
In an attempt to avoid this well settled principle of
law, the petitioner argues in his reply brief that he was
‘‘an insanity acquittee in the custody of the Psychiatric
Security Review Board’’ and that he ‘‘lost his designa-
tion as sentenced prisoner (even for his 2011 convic-
tions) once he became an insanity acquittee who could
no longer be punished.’’ He further argues, relying on
his interpretation of State v. Anderson, supra, 319 Conn.
314 n.37, that, ‘‘once [he] became an insanity acquittee,
he could no longer be punished, which is why he was
serving his 2011 sentence at Whiting (i.e., a nonpunitive
hospital) and why he had to be designated as a pretrial
detainee, rather than as a previously sentenced inmate,
when he was detained at Northern prior to being con-
victed and sentenced for his 2014 assaults at Whiting.’’
(Emphasis added.) During oral argument before this
court, the petitioner also argued that, in Anderson, our
Supreme Court held that the petitioner was a pretrial
detainee and that ‘‘it is mutually exclusive [that] you
are not both a pretrial detainee and a sentenced inmate.
Either you are a pretrial detainee, in the sense that you
are entitled to bail, which a sentenced inmate is not,
or—and that you would be entitled to preconfinement
credit, which a sentenced inmate would not, or you’re
not a pretrial detainee, you’re a sentenced inmate.’’
The petitioner’s arguments are without merit and
ignore reality. Although the petitioner had been found
not guilty by reason of insanity on the July, 2012
charges, he, nevertheless, still was serving an aggregate
ten year sentence for prior convictions when that
acquittal occurred. His prior convictions and his ten
year aggregate sentence did not vanish, as the petitioner
suggests, simply because he was found not guilty by
reason of insanity on other subsequent charges. In his
reply brief, the petitioner attempts to portray himself
simply as an insanity acquittee, rather than as an insan-
ity acquittee who also was serving a simultaneous sen-
tence for convictions that occurred before he was found
not guilty by reason of insanity on later charges.
Indeed, if we accepted the petitioner’s interpretation
of Anderson; see State v. Anderson, supra, 319 Conn.
314 n.37; taken to the extreme, it could mean that (1)
a person (P) could commit multiple dangerous felonies
and effectively be ordered to serve multiple life senten-
ces; (2) P, several years into his sentence, could commit
additional crimes while incarcerated, even relatively
minor crimes; (3) P then could be found by the jury to
have been insane at the time he committed the addi-
tional crimes several years into his sentence for multiple
dangerous felonies; (4) P would be relieved of his multi-
ple life sentences, although he was not insane at the
time he committed the multiple dangerous felonies; (5)
after some time, P no longer fits the insanity designa-
tion; and (6) P cannot be sent back to prison because
‘‘he could no longer be punished.’’ We are not convinced
that Anderson or anything in our law supports such an
absurd outcome.
Accordingly, we conclude that a convicted prisoner,
who subsequently is sent to Whiting after being found
not guilty by reason of insanity on new criminal
changes, and who then commits additional crimes while
at Whiting and who thereafter fails to make bond on
the Whiting charges, cannot earn double credit pursuant
to § 18-98d; he is not being held at the correctional
facility ‘‘solely’’ due to his failure to make bond, but,
rather, he is being held at that correctional facility both
for a failure to make bond and as a prisoner already
sentenced to the custody of the respondent, for which
he is earning jail time credit. In other words, it is settled
law in Connecticut that § 18-98d does not allow a peti-
tioner to earn jail time credit and presentence confine-
ment credit simultaneously.1 See Bernstein v. Commis-
sioner of Correction, supra, 83 Conn. App. 81. The
petitioner has failed to present an issue that is debatable
among jurists of reason, that could be resolved in a
different manner, or that deserves encouragement to
proceed further. Accordingly, the habeas court did not
abuse its discretion when it denied the petition for
certification to appeal from the judgment dismissing
the petitioner’s petition for a writ of habeas corpus.
The appeal is dismissed.
In this opinion the other judges concurred.
1
We do not mean to suggest that there could not be a situation where a
petitioner’s jail time credit could not be converted to presentence confine-
ment credit. See James v. Commissioner of Correction, 327 Conn. 24, 47,
170 A.3d 662 (2017) (‘‘[s]ection 18-98d (a) (1) (B) . . . contemplates circum-
stances where time in prison could be converted to presentence confinement
credit’’); see generally Boyd v. Lantz, 487 F. Supp. 2d 3 (D. Conn. 2007).
That is not the petitioner’s claim in this case.