Stafford v. Commissioner of Correction ( 2021 )

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WILLIAM L. STAFFORD, JR. v. COMMISSIONER
OF CORRECTION
(AC 43208)
Prescott, Cradle and Suarez, Js.
Syllabus
The petitioner, who had been convicted, in two cases, of the crime of felony
murder on a plea of guilty in each case, sought a writ of habeas corpus,
claiming, inter alia, that the respondent Commissioner of Correction
and the Board of Pardons and Paroles improperly determined that he
was not parole eligible. On the first count of felony murder, which was
alleged to have been committed on June 30 or July 1, 1981, the petitioner
was sentenced to an indefinite term of incarceration of not less than
twenty-five years nor more than life pursuant to statute ((Rev. to 1981)
§ 53a-35). On the second count of felony murder, which was alleged to
have been committed on August 16, 1981, the petitioner was sentenced
to a definite term of incarceration of fifty-five years pursuant to statute
((Rev. to 1981) § 53a-35a). The trial court ordered the sentences to run
concurrently. The petitioner had served the entire length of his definite
sentence of fifty-five years, as reduced by credits he had earned while
incarcerated, by May 28, 2014. He then sought a parole eligibility date
for his indeterminate sentence but was told that he was not eligible for
parole because his determinate sentence, which he had fully served,
was not a parole eligible offense. At his habeas trial, however, S, the
executive director of the board, testified that the petitioner was parole
eligible. Thereafter, the habeas court dismissed the petition, concluding
that it lacked jurisdiction because the petitioner failed to state a claim
involving the deprivation of a recognized liberty interest and that the
issue of obtaining a parole eligibility determination was moot in light
of S’s testimony that the board had found the petitioner to be eligible
for parole but declined to grant him a hearing. The court thereafter
granted the petitioner certification to appeal, and the petitioner appealed
to this court. On appeal, the respondent conceded that the petitioner
was eligible for parole. Held:
1. This court had jurisdiction to reach the merits of the petitioner’s claims,
as the respondent’s concession that the petitioner was parole eligible
did not render the appeal moot: in his habeas petition, the petitioner
sought three forms of relief, a declaration by the habeas court that he
was eligible for parole, an order that the respondent classify him as
eligible for parole, and a classification by the board and the Department
of Correction that he was eligible for parole and that they accord him
consideration based on the criteria set forth in the applicable statute
(§ 54-125), of which only the final request for relief was arguably satisfied
by the respondent’s concession, thus, this court could order practical
relief by remanding the case with direction to render judgment that the
petitioner is parole eligible; moreover, the petitioner’s classification as
a parole eligible inmate was a tangible benefit on which his release
from prison, pursuant to a finding of parole suitability, was contingent;
furthermore, the notion that there was no actual controversy between
the parties on the issue of the petitioner’s parole eligibility was belied
by the existence of the appeal and the lack of a stipulation as to the
petitioner’s eligibility.
2. The habeas court improperly dismissed the petition for a writ of habeas
corpus as moot; at the habeas trial, although S testified that the petitioner
was eligible for parole, a representative from the department testified
that the petitioner would never be eligible, and this conflicting testimony,
in conjunction with the respondent’s closing remarks that it was ‘‘not
entirely clear that this is a parole eligible sentence,’’ indicated that there
was an ongoing controversy regarding the petitioner’s eligibility for
parole, despite S’s testimony.
3. The habeas court erred in concluding that it did not have jurisdiction to
consider the petitioner’s ex post facto claim in his petition: the petitioner
established a cognizable claim under the ex post facto clause of the
United States constitution, as he made a colorable showing that the
respondent’s and the department’s interpretation and application of
certain statutes (§§ 53a-38 (b) and 54-125a (b) (1)) that rendered him
categorically ineligible for parole on his indeterminate sentence on the
first offense created a genuine risk that he would be incarcerated for
longer than he would have been under the law that existed at the time
he committed the first offense; accordingly, in light of the respondent’s
concession on appeal that the petitioner is parole eligible, this court
granted the petitioner practical relief by directing the habeas court to
render judgment declaring the petitioner to be parole eligible and did
not reach a determination as to whether the respondent’s interpretation
and application of § 54-125a to the petitioner’s sentence violated the ex
post facto clause.
Argued February 11—officially released August 31, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, and tried to the court, Newson, J.; judgment
dismissing the petition; thereafter, the court granted the
petition for certification to appeal, and the petitioner
appealed to this court. Reversed; judgment directed.
Melissa King and Hannah Kogan, certified legal
interns, with whom were Timothy H. Everett, assigned
counsel, and, on the brief, Christopher Boyer, certified
legal intern, for the appellant (petitioner).
Madeline A. Melchionne, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, Clare E. Kindall, solicitor general, and Steven
R. Strom, assistant attorney general, for the appellee
(respondent).
Opinion
PRESCOTT, J. The petitioner, William L. Stafford, Jr.,
appeals from the judgment of the habeas court dismiss-
ing his amended petition for a writ of habeas corpus,
which challenged the categorical refusal by the respon-
dent, the Commissioner of Correction, and the initial
failure by the Board of Pardons and Paroles (board),
to deem the petitioner eligible for parole despite the
fact that he is incarcerated for a parole eligible offense.
On appeal, the petitioner claims that the court improp-
erly dismissed his petition on the grounds that (1) the
court lacked subject matter jurisdiction because the
petitioner failed to state a claim involving the depriva-
tion of a recognized liberty interest, and (2) the petition
was rendered moot by a witness’ testimony at the
habeas trial. We agree with both jurisdictional claims
and, accordingly, reverse the judgment of the habeas
court and remand with direction to render judgment
stating that the petitioner is parole eligible.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s claims.1 In
1981, the petitioner was charged with two counts of
felony murder in violation of General Statutes (Rev. to
1981) § 53a-54c,2 the first of which was alleged to have
been committed on June 30 or July 1, 1981, and the
second of which was alleged to have been committed
on August 16, 1981. On October 14, 1982, the petitioner
entered guilty pleas as to both counts. On the first count,
the petitioner was sentenced to an indefinite term of
incarceration of not less than twenty-five years nor
more than life pursuant to General Statutes (Rev. to
1981) § 53a-35.3 On the second count, the petitioner
was sentenced to a definite term of fifty-five years of
incarceration pursuant to General Statutes (Rev. to
1981) § 53a-35a.4 The court ordered the sentences to
run concurrently. ‘‘The petitioner ‘maxed out’ on the
fifty-five year sentence on May 28, 2014, and is deemed
to have been ‘released’ from that conviction.’’5 Just prior
to the expiration of that sentence, the petitioner submit-
ted the first of three inmate request forms to Institu-
tional Parole Officer Vadnais (IPO Vadnais),6 seeking a
parole eligibility date for his indeterminate twenty-five
years to life sentence. IPO Vadnais responded to all
three requests, indicating each time that the petitioner
was not eligible for parole on the indeterminate felony
murder sentence because the determinate felony mur-
der sentence was not a parole eligible offense.7
Subsequently, the petitioner filed a petition for a writ
of habeas corpus as a self-represented litigant. On May
10, 2016, the petitioner, through counsel, filed an
amended petition for a writ of habeas corpus alleging
that the respondent improperly determined that the
petitioner is not parole eligible, despite the fact that he
is currently incarcerated for a parole eligible offense
pursuant to General Statutes § 54-125, which consti-
tutes a violation of the petitioner’s rights under the due
process and ex post facto clauses of the United States
constitution. The relief requested in the amended peti-
tion includes, inter alia, (1) a declaration by the court
that the petitioner is eligible for parole, (2) an order
that the respondent classify the petitioner as eligible
for parole, and (3) that the board and the Department
of Correction (department) classify the petitioner as
parole eligible and accord him consideration in accor-
dance with the criteria set forth in § 54-125.8 The respon-
dent filed a return on July 9, 2018, in which he alleged
as a ‘‘defense’’ that the petitioner is not eligible for
parole consideration.
At the petitioner’s habeas trial, on February 26, 2019,
three witnesses testified: (1) Michelle Deveau, a records
specialist with the department; (2) Richard Sparaco, the
executive director of the board; and (3) the petitioner.
Specifically, Deveau testified, inter alia, that the depart-
ment generates a parole eligibility date for the board
that is based on relevant statutes and her office’s calcu-
lations. She acknowledged that the presentence investi-
gation report prepared at the time of the sentencing of
the petitioner9 stated that ‘‘[u]nfortunately [for] . . .
society [the petitioner] will be eligible for parole in the
future.’’ Nevertheless, Deveau testified that the peti-
tioner was not, and would never be, eligible for parole
pursuant to General Statutes §§ 53a-37,10 53a-38 (b),11
and 54-125a12 because, even though the petitioner
reached the maximum term of his definite sentence,
that sentence still serves as a bar to the petitioner’s
parole eligibility on the indeterminate sentence.13
By contrast, Sparaco testified, inter alia, that the peti-
tioner is parole eligible because, when his fifty-five year
sentence reached its maximum, on May 28, 2014, the
petitioner was left to serve only his indeterminate sen-
tence, which was imposed for a parole eligible offense
pursuant to § 54-125. Sparaco’s testimony in this regard
was contrary to what the respondent had indicated
Sparaco’s opinion would be in his expert witness disclo-
sure. Sparaco explained, in his testimony, that ‘‘[p]arole
eligibility is the gateway to a hearing,’’ it is statutorily
determined, and the board does not exercise discretion
in determining eligibility. Sparaco further testified that
(1) he became aware of the petitioner’s case in 2015
because of the present habeas litigation, (2) the board
did not receive notice of the petitioner’s eligibility from
the department ‘‘as we do with many other cases,’’ (3)
the board has determined that the petitioner is parole
eligible, and (4) the board has not reached a conclusion
as to whether the petitioner should be afforded a parole
hearing.14
Following the habeas trial, the court issued a memo-
randum of decision and dismissed the petition. The
court concluded that the petitioner’s claims were not
justiciable for two reasons: (1) the petitioner has failed
to state a claim involving the deprivation of a recognized
liberty interest and, thus, has failed to state a claim
over which the habeas court has jurisdiction; and (2)
the issue of obtaining a parole eligibility determination
has become moot because there is no longer a viable
dispute in light of Sparaco’s testimony that the board
has found the petitioner to be eligible for parole but
has declined to grant him a hearing. The petitioner then
filed a timely motion for reconsideration, which the
court denied. Subsequently, the petitioner filed a peti-
tion for certification to appeal, which the court granted
on May 28, 2019.
On December 11, 2019, the petitioner filed a motion
for articulation, seeking further explanation as to why
the habeas court did not address whether it had jurisdic-
tion to decide the petitioner’s ex post facto claim, as
distinct from his due process claim, and to clarify cer-
tain findings with respect to its conclusion that the
petition was moot. The court denied the motion for
articulation, and the petitioner sought review from this
court pursuant to Practice Book § 66-5.15 This court
granted the motion for review but denied the relief
requested therein. This appeal followed. On appeal, the
respondent concedes that the petitioner is parole eligi-
ble. Additional facts will be set forth as needed.
I
As an initial matter, before addressing the petitioner’s
claims, we first discuss whether, in light of the respon-
dent’s concession before this court that the petitioner
is parole eligible, this appeal is moot. We conclude that
it is not.
The following legal principles guide our review.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction. . . . Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief to
the complainant.’’ (Citation omitted; internal quotation
marks omitted.) Renaissance Management Co. v.
Barnes, 175 Conn. App. 681, 685–86, 168 A.3d 530(2017). ‘‘[I]t is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.
. . . Subject matter jurisdiction involves the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The subject matter juris-
diction requirement may not be waived by any party,
and also may be raised by a party, or by the court sua
sponte, at any stage of the proceedings, including on
appeal.’’ (Internal quotation marks omitted.) Sousa v.
Sousa, 322 Conn. 757, 770, 143 A.3d 578 (2016).
‘‘Under our well established jurisprudence, [m]oot-
ness presents a circumstance wherein the issue before
the court has been resolved or had lost its significance
because of a change in the condition of affairs between
the parties. . . . In determining mootness, the disposi-
tive question is whether a successful appeal would ben-
efit the plaintiff or defendant in any way. . . . In other
words, the ultimate question is whether the determina-
tion of the controversy will result in practical relief to
the complainant.’’ (Internal quotation marks omitted.)
Crocker v. Commissioner of Correction, 178 Conn. App.
191, 194, 174 A.3d 860 (2017). ‘‘[W]hen, during the pen-
dency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) Gainey v.
Commissioner of Correction, 181 Conn. App. 377, 383,
186 A.3d 784 (2018).
In his habeas petition, the petitioner specified that the
form of relief he was requesting was (1) a declaration
by the court that he is eligible for parole, (2) an order
that the respondent classify him as eligible for parole,
and (3) that the board and the department classify him
as eligible for parole and accord him consideration in
accordance with the criteria set forth in § 54-125. Only
the last of these forms of relief has arguably been satis-
fied by the respondent’s concession.16 As such, this
court can order practical relief by remanding the case
with direction to render judgment that the petitioner
is parole eligible. This is the principal form of relief that
the petitioner has sought. Moreover, the respondent
indicated to the habeas court that it too is ‘‘seeking [the
court’s] guidance in whether or not this is a parole
eligible sentence . . . . [I]t’s not entirely clear that this
is a parole eligible sentence.’’
In our view, the petitioner would benefit from a judi-
cial determination of eligibility because it is an enforce-
able judgment that would ensure that the petitioner
would not need to seek such a declaration by a court
in the future if the respondent or the department were
again to change their position regarding whether the
petitioner is parole eligible. In the absence of such a
judicial determination, in light of the long-standing con-
fusion on the issue of the petitioner’s parole eligibility
by the board and the department,17 we are not convinced
that the respondent’s concession is sufficient to ensure
that the petitioner is deemed parole eligible for all rele-
vant future purposes. As of the date of oral argument
to this court, the petitioner had not received any formal
indication or writing from either the board or the depart-
ment that he is parole eligible.18
Moreover, as Sparaco aptly explained in his testi-
mony, ‘‘Parole eligibility is the gateway to a hearing.’’
Even assuming arguendo that the board has declined
to grant the petitioner a parole hearing, which is indis-
putably in its discretion to do, the petitioner could later
be granted a follow-up review and be found suitable
for parole.19 See Baker v. Commissioner of Correction,
91 Conn. App. 855, 859 n.6, 882 A.2d 1238 (2005) (‘‘Eligi-
bility for parole and suitability for parole release are
two distinct concepts . . . . [P]arole eligibility means
that the prisoner may be considered by the board for
release, whereas suitability is the determination by the
board that the prisoner is actually entitled to release
under the relevant guidelines.’’), rev’d in part on other
grounds, 281 Conn. 241, 914 A.2d 1034 (2007). As such,
the petitioner’s classification as a parole eligible inmate
is a tangible benefit on which his release from prison
is contingent and, at this point, the petitioner still has
not received the one thing he consistently has
requested: an enforceable judgment stating that he is
parole eligible.
We further note that the notion that no actual contro-
versy between the parties exists regarding the issue of
the petitioner’s eligibility is somewhat belied by this
appeal. That is to say, if there truly is no dispute between
the parties on the issue of the petitioner’s parole eligibil-
ity, the parties could have so stipulated at any time, or
the respondent could have confessed to a judgment in
the petitioner’s favor in the habeas court. For these
reasons, we conclude that this appeal is not rendered
moot by the respondent’s concession that the petitioner
is parole eligible, and we have jurisdiction to reach
its merits.
II
One of the petitioner’s claims on appeal is that the
habeas court improperly concluded that the petition
was rendered moot by Sparaco’s testimony that the
board has found the petitioner to be eligible for parole
but has declined to grant him a hearing. With respect
to this claim, we rely on the jurisdictional principles
and the standard of review set forth in part I of this
opinion. For many of the same reasons we concluded
in part I of this opinion that this appeal is not moot,
we agree with the petitioner that the habeas court
improperly dismissed the underlying petition as moot.
As previously mentioned, in the petitioner’s habeas
petition, he specified that the form of relief he was
requesting was (1) a declaration by the court that he
is eligible for parole, (2) an order that the respondent
classify him as eligible for parole, and (3) that the board
and the department classify him as eligible for parole
and accord him consideration in accordance with the
criteria set forth in § 54-125. None of these forms of
relief was provided by virtue of Sparaco’s testimony
that the board has determined that the petitioner is
parole eligible.
At the habeas trial, there was no indication that the
department deems the petitioner to be parole eligible.
Three times the petitioner submitted an inmate request
form to the department, specifically to IPO Vadnais,
seeking a parole eligibility date, and three times he
was told that he was not eligible for parole. The only
representative from the department to testify, Deveau,
stated unequivocally that, based on her office’s calcula-
tions, the petitioner would never be eligible for parole.
Moreover, Sparaco clearly testified that the board had
not received anything from the department regarding
the petitioner, such as his name on a list of individuals
who are eligible for parole, ‘‘as it does with many other
cases.’’ Sparaco only became aware of the issue regard-
ing the petitioner’s parole eligibility after the petitioner
initiated this habeas action, which was six or more
months after the petitioner’s definite term reached its
maximum and, in Sparaco’s view, the petitioner became
parole eligible. This conflicting testimony,20 in conjunc-
tion with the lack of any evidence to suggest that the
department deems the petitioner parole eligible, indi-
cates that there was still an ongoing controversy after
Sparaco’s testimony. Likewise, the respondent’s closing
argument to the habeas court further indicates that
Sparaco’s testimony did not resolve the issue of whether
the petitioner is parole eligible. Specifically, the respon-
dent stated in his closing argument, ‘‘[T]he board is
seeking [the court’s] guidance in whether or not this is
a parole eligible sentence . . . . [I]t’s not entirely clear
that this is a parole eligible sentence.’’ Accordingly, we
conclude that the court improperly concluded that the
case was moot.
III
Finally, we address the petitioner’s claim on appeal
that the habeas court improperly concluded that it
lacked subject matter jurisdiction on the basis that the
petitioner failed to state a claim involving the depriva-
tion of a recognized liberty interest. The petitioner
argues that the court’s conclusion in this regard does
not account for his ex post facto claim, which is distinct
from his due process claim, over which the court has
jurisdiction irrespective of whether the petitioner has
alleged an impairment of a vested right. Specifically,
the petitioner maintains that the respondent has inter-
preted and applied § 54-125a, which was not enacted
until 1990, to his sentence in a way that violates the ex
post facto clause. We conclude that the petitioner has
alleged a cognizable ex post facto claim that is sufficient
to invoke the jurisdiction of the habeas court.
We begin by setting forth certain governing principles
of law as well as our standard of review. ‘‘Whether a
habeas court properly dismissed a petition for a writ
of habeas corpus presents a question of law over which
our review is plenary.’’ Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 553, 223 A.3d 368 (2020).
‘‘[When] the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct . . . and whether they find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 566, 941 A.2d 248 (2008). ‘‘The
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . The application
of the habeas court’s factual findings to the pertinent
legal standard, however, presents a mixed question of
law and fact, which is subject to plenary review.’’ (Inter-
nal quotation marks omitted.) Horn v. Commissioner
of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016).
‘‘The ex post facto clause of the United States consti-
tution prohibits retroactive application of a law that
inflicts a greater punishment, than the law annexed to
the crime, when committed. . . . In other words, the
clause forbids the application of any new punitive mea-
sure to a crime already consummated, to the detriment
or material disadvantage of the wrongdoer.’’ (Citation
omitted; internal quotation marks omitted.) Breton v.
Commissioner of Correction, 330 Conn. 462, 470, 196
A.3d 789 (2018). ‘‘To establish a cognizable claim under
the ex post facto clause, therefore, a habeas petitioner
need only make a colorable showing that the new law
creates a genuine risk that he or she will be incarcerated
longer under that new law than under the old law.’’
Johnson v. Commissioner of Correction, 258 Conn. 804,
818, 786 A.2d 1091 (2002).
‘‘In addition it is firmly established that statutes gov-
erning parole eligibility are part of the law annexed to
the crime for ex post facto clause purposes. . . . As
the United States Supreme Court explained in [Warden
v. Marrero, 417 U.S. 653, 658, 94 S. Ct. 2532, 41 L. Ed.
2d 383 (1974)], [a]lthough . . . the precise time at
which the offender becomes eligible for parole is not
part of the sentence . . . it is implicit in the terms of
the sentence. And because it could not be seriously
argued that sentencing decisions are made without
regard to the period of time a defendant must spend
in prison before becoming eligible for parole, or that
such decisions would not be drastically affected by a
substantial change in the proportion of the sentence
required to be served before becoming eligible, parole
eligibility can properly be viewed as being determined—
and deliberately so—by the sentence of the [court].’’
(Citations omitted; internal quotation marks omitted.)
Breton v. Commissioner of Correction, supra, 330
Conn. 472.
‘‘Furthermore, [t]he United States Supreme Court has
recognized that a law need not impair a vested right
to violate the ex post facto prohibition. Evaluating
whether a right has vested is important for claims under
the [c]ontracts or [d]ue [p]rocess [c]lauses, which solely
protect [preexisting] entitlements. . . . The presence
or absence of an affirmative, enforceable right is not
relevant, however, to the ex post facto prohibition,
which forbids the imposition of punishment more
severe than the punishment assigned by law when the
act to be punished occurred. Critical to relief under the
[e]x [p]ost [f]acto [c]lause is not an individual’s right
to less punishment, but the lack of fair notice and gov-
ernmental restraint when the legislature increases pun-
ishment beyond what was prescribed when the crime
was consummated.’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 471. ‘‘Thus, to determine
whether a habeas court has subject matter jurisdiction
over a petitioner’s ex post facto claim, [t]he controlling
inquiry . . . [is] whether retroactive application of the
change in [the] law create[s] a sufficient risk of increas-
ing the measure of punishment attached to the covered
crimes. . . . [A] habeas petitioner need only make a
colorable showing that the new law creates a genuine
risk that he or she will be incarcerated longer under
that new law than under the old law.’’ (Internal quota-
tion marks omitted.) Whistnant v. Commissioner of
Correction, 199 Conn. App. 406, 421, 236 A.3d 276, cert.
denied, 335 Conn. 969, 240 A.3d 286 (2020).
In the present case, the law in effect when the peti-
tioner committed the two felony murders at issue was
such that the sentence for any felony murder committed
prior to July 1, 1981, was to be indeterminate, whereas,
the sentence for any felony murder committed on or
after July 1, 1981, was to be definite. See General Stat-
utes (Rev. to 1981) §§ 53a-35 and 53a-35a. Moreover,
pursuant to § 54-125, a person serving an indeterminate
sentence becomes eligible for parole after having served
the minimum term. See footnote 7 of this opinion. The
petitioner was sentenced in accordance with these stat-
utes; namely, he received an indeterminate sentence of
twenty-five years to life for a felony murder committed
prior to July 1, 1981, and a definite sentence of fifty-
five years for a second felony murder committed after
July 1, 1981, to be served concurrently. Moreover, as
reflected in the presentence investigation report, the
petitioner was deemed to be eligible for parole in the
future.
Despite the petitioner’s having fully served the defi-
nite sentence and having served the minimum term of
the indeterminate sentence, the department has
informed him on numerous occasions that he is not
eligible for parole on the indeterminate sentence that
he is currently serving. The department’s position, as
explained by Deveau at the habeas trial, is that the
petitioner is not parole eligible because (1) pursuant
to §§ 53a-37 and 53a-38 (b), the term of the two senten-
ces has merged and will not be deemed satisfied until
the longest term, in this case the life sentence, has run,
and (2) pursuant to § 54-125a (b) (1), which only became
effective on October 1, 1990, a person who received a
definite sentence after having been convicted of a felony
murder committed on or after July 1, 1981, is categori-
cally ineligible for parole, even for a separate, parole
eligible offense. The petitioner maintains that the
department’s interpretation and application of these
statutes is inaccurate21 and effectively transforms the
petitioner’s sentence into one of life imprisonment with-
out the possibility of parole, which is a more severe
punishment than that assigned by law when the peti-
tioner committed the felony murders at issue and, thus,
it violates the ex post facto clause.22
Our Supreme Court has clearly expressed that due
process claims are distinct from ex post facto claims
in that ‘‘a law need not impair a vested right to violate
the ex post facto prohibition.’’ (Internal quotation
marks omitted.) Breton v. Commissioner, supra, 330
Conn. 471; see Johnson v. Commissioner of Correction,
supra, 258 Conn. 817–19; see also Baker v. Commis-
sioner of Correction, supra, 91 Conn. App. 862–63.
Accordingly, in the present case, it was improper as a
matter of law for the habeas court to conclude that
the petitioner ‘‘has failed to state a claim involving the
deprivation of a recognized liberty interest, so he has
failed to state a claim over which the habeas court has
jurisdiction.’’ (Internal quotation marks omitted.) Such
a conclusion fails to account for the petitioner’s ex post
facto claim, which the habeas court made note of in
the procedural history portion of its decision but did
not address further.23
In addition, we conclude that the petitioner has estab-
lished a cognizable claim under the ex post facto clause
because he has made a colorable showing that the
department’s interpretation and application of §§ 53a-
38 (b) and 54-125a (b) (1) creates a genuine risk that
he will be incarcerated longer than he would have been
under the law that existed at the time he committed
the offenses at issue. That is, at the time the petitioner
committed the first felony murder, the sentence for that
offense was indeterminate and parole eligible. Subse-
quent to the commission of both felony murders and
the petitioner’s sentencing for those crimes, § 54-125a
was enacted and has served as the basis for the depart-
ment’s view that the petitioner’s second felony murder
conviction renders him ineligible for parole on his first
felony murder conviction. Thus, the department’s inter-
pretation and application of § 54-125a creates a genuine
risk that the petitioner will be incarcerated for the rest
of his life without the possibility of parole, for what
was originally a parole eligible sentence. Accordingly,
the habeas court had jurisdiction to consider the peti-
tioner’s ex post facto claim, and it was error for the
court to conclude otherwise.
In light of the respondent’s concession on appeal,
and the fact that there are no other material facts in
dispute, it is not necessary to remand this matter for a
trial in the habeas court. Moreover, because we can
grant practical relief by directing the habeas court to
render a judgment declaring the petitioner to be parole
eligible, we need not determine whether the respon-
dent’s prior interpretation and application of § 54-125a
to the petitioner’s sentence violates the ex post facto
clause.
The petitioner had to wait almost five years after
becoming parole eligible for a trial on the issue of
whether he is, in fact, parole eligible. By reversing and
remanding this case with direction to render judgment
that the petitioner is parole eligible, we will ensure that
he does not have to seek this same declaration from a
court again in the future and that both the respondent
and the board will treat him as such.
The judgment is reversed and the case is remanded
to the habeas court with direction to render judgment
stating that the petitioner is parole eligible.
In this opinion the other judges concurred.
1
We rely on the facts as found and set forth by the habeas court in
its memorandum of decision as well as on undisputed facts disclosed in
the record.
2
General Statutes (Rev. to 1981) § 53a-54c provides in relevant part: ‘‘A
person is guilty of murder when, acting either alone or with one or more
persons, he commits or attempts to commit robbery, burglary, kidnapping,
sexual assault in the first degree, sexual assault in the first degree with a
firearm, sexual assault in the third degree, sexual assault in the third degree
with a firearm, escape in the first degree, or escape in the second degree
and, in the course of and in furtherance of such crime or of flight therefrom,
he, or another participant, if any, causes the death of a person other than
one of the participants . . . .’’
3
General Statutes (Rev. to 1981) § 53a-35 provides in relevant part: ‘‘(a)
For any felony committed prior to July 1, 1981, the sentence of imprisonment
shall be an indeterminate sentence, except as provided in subsection (d).
When such a sentence is imposed the court shall impose a maximum term
in accordance with the provisions of subsection (b) and the minimum term
shall be as provided in subsection (c) or (d).
‘‘(b) The maximum term of an indeterminate sentence shall be fixed by
the court and specified in the sentence as follows: (1) For a class A felony,
life imprisonment . . . .
‘‘(c) Except as provided in subsection (d) the minimum term of an indeter-
minate sentence shall be fixed by the court and specified in the sentence
as follows: (1) For a class A felony, the minimum term shall not be less
than ten nor more than twenty-five years . . . .’’
4
General Statutes (Rev. to 1981) § 53a-35a provides in relevant part: ‘‘For
any felony committed on or after July 1, 1981, the sentence of imprisonment
shall be a definite sentence and the term shall be fixed by the court as
follows . . .
‘‘(2) for the class A felony of murder, a term not less than twenty-five
years nor more than life . . . .’’
5
‘‘The petitioner ‘maxed out’ his sentence through the earning [of] certain
‘good time’ and job credits to reduce his term of incarceration . . . .’’ In
other words, the petitioner served the entire length of his fifty-five year
sentence, as reduced by good conduct credits and job credits that he earned
while incarcerated. See General Statutes §§ 18-7a and 18-98a.
6
This individual’s first name was not provided.
7
Two parole statutes are at issue because of the dates of the underlying
offenses: General Statutes §§ 54-125 and 54-125a. Section 54-125 provides
in relevant part: ‘‘Any person confined for an indeterminate sentence, after
having been in confinement under such sentence for not less than the
minimum term, or, if sentenced for life, after having been in confinement
under such sentence for not less than the minimum term imposed by the
court, less such time as may have been earned under the provisions of
section 18-7, may be allowed to go at large on parole in the discretion of
the panel of the Board of Pardons and Paroles for the institution in which
the person is confined, if (1) it appears from all available information,
including such reports from the Commissioner of Correction as such panel
may require, that there is reasonable probability that such inmate will live
and remain at liberty without violating the law and (2) such release is not
incompatible with the welfare of society. . . .’’ (Emphasis added.)
Section 54-125a provides in relevant part: ‘‘(a) A person convicted of one
or more crimes who is incarcerated on or after October 1, 1990, who received
a definite sentence or total effective sentence of more than two years, and
who has been confined under such sentence or sentences for not less than
one-half of the total effective sentence less any risk reduction credit earned
under the provisions of section 18-98e or one-half of the most recent sentence
imposed by the court less any risk reduction credit earned under the provi-
sions of section 18-98e, whichever is greater, may be allowed to go at large
on parole . . . .
(b) (1) No person convicted of any of the following offenses, which was
committed on or after July 1, 1981, shall be eligible for parole under
subsection (a) of this section . . . (C) felony murder, as provided in section
53a-54c . . . .’’ (Emphasis added.)
8
Specifically, the amended petition states: ‘‘That the Office of Pardons
and Paroles in the [d]epartment . . . classify the petitioner as a parole
eligible inmate and accord him consideration in accordance with the criteria
set forth in . . . § 54-125.’’ It thus appears that the petitioner was operating
under the mistaken belief that the board is a part of the department, as
opposed to a separate and distinct entity. We interpret the petitioner’s
request for relief as applying to both entities.
9
Presentence investigation reports are prepared by the Office of Adult
Probation.
10
General Statutes § 53a-37 provides in relevant part: ‘‘When multiple
sentences of imprisonment are imposed on a person at the same time . . .
the sentence or sentences imposed by the court shall run either concurrently
or consecutively with respect to each other and to the undischarged term
or terms in such manner as the court directs at the time of sentence.
The court shall state whether the respective maxima and minima shall run
concurrently or consecutively with respect to each other, and shall state in
conclusion the effective sentence imposed. . . .’’
11
General Statutes § 53a-38 (b) provides in relevant part: ‘‘A definite sen-
tence of imprisonment commences when the prisoner is received in the
custody to which he was sentenced. Where a person is under more than
one definite sentence, the sentences shall be calculated as follows . . . If
the sentences run concurrently, the terms merge in and are satisfied by
discharge of the term which has the longest term to run . . . .’’ (Empha-
sis added.)
12
At the time that the petitioner committed the offenses at issue, and at
the time he was sentenced, § 54-125a had not yet been enacted. It was
enacted in 1990.
13
Deveau also testified that she did not take General Statutes § 53a-35c
into account when calculating the petitioner’s parole eligibility. Section 53a-
35c provides: ‘‘The sentence of life imprisonment without the possibility of
release shall not be available as a sentence for an offense committed prior
to October 1, 1985.’’
14
The following colloquy ensued:
‘‘[The Petitioner’s Counsel]: Has [the petitioner] been accorded a parole
hearing or a parole review by your office?
‘‘[Sparaco]: He has not been reviewed by my office for a, even given hear-
ing.
***
‘‘[The Petitioner’s Counsel]: Okay. And do, have you evaluated whether
the court has adequate information to accord [the petitioner] a hearing?
‘‘[Sparaco]: Yes.
‘‘[The Petitioner’s Counsel]: And what is your conclusion at this point?
‘‘[Sparaco]: We have not made the conclusion because we have—the
answer to that question has not completely been provided to me. It’s if we
have enough information or we don’t have enough information to proceed
with a hearing.’’
15
Practice Book § 66-5 provides in relevant part: ‘‘The sole remedy of any
party desiring the court having appellate jurisdiction to review the trial
court’s decision on the motion [for articulation] . . . shall be by motion
for review under Section 66-7. . . .’’
16
It remains unclear whether the board has reviewed the petitioner for
parole and determined, in its discretion, whether it will afford him a parole
hearing. We note that this point relates to the petitioner’s suitability for
parole, as opposed to his eligibility for parole. See Baker v. Commissioner
of Correction, 91 Conn. App. 855, 859 n.6, 882 A.2d 1238 (2005) (‘‘Eligibility
for parole and suitability for parole release are two distinct concepts . . . .
[P]arole eligibility means that the prisoner may be considered by the board
for release, whereas suitability is the determination by the board that the
prisoner is actually entitled to release under the relevant guidelines.’’), rev’d
in part on other grounds, 281 Conn. 241, 914 A.2d 1034 (2007). The petitioner
maintains that no suitability determination has been made.
In its memorandum of decision, the habeas court stated in relevant part:
‘‘Sparaco . . . testified that the board conducted a review of the petitioner’s
file after it became aware of the habeas action, that the board has found
the petitioner to be eligible for parole, but the board has declined to grant
him with a hearing.’’ (Emphasis altered; footnote omitted.) On our review
of the transcript, however, it seems that Sparaco testified that the board
has not reviewed the petitioner for parole, nor has it reached a conclusion
as to whether or not the petitioner will be granted a parole hearing. See
footnote 14 of this opinion.
Our reading of Sparaco’s testimony is further supported by counsel for
the respondent’s later statement on the record at trial that, based on a
conversation he had with Sparaco, it was his belief that, if the petitioner
made certain statements on the record, ‘‘I think [Sparaco] would at least
put him in the pipeline for a hearing. And now the hearing may result in
a board saying we don’t have enough information to make a decision so
we’re gonna have to deny the, deny the case or continue the case.’’ (Empha-
sis added.)
Furthermore, at oral argument to this court, the respondent’s counsel
represented that Sparaco’s testimony is the only evidence in this case that
the board has reviewed the petitioner’s case and determined that he is not
suitable for parole.
17
The facts of this case exemplify the importance of both the department
and the board having the same view on whether an inmate is parole eligible.
With respect to which of these two entities has the ultimate authority to
determine whether an inmate is parole eligible, we note that General Statutes
§ 54-124a (f) provides that the board has independent decision-making
authority to grant or to deny parole in accordance with a number of statutes,
including § 54-125, which is the statute that governs parole of an inmate
serving an indeterminate sentence as the petitioner is in this case. Deveau
testified, however, that the department is the entity that initially determines
the parole eligibility date for the board.
The notion that, in practice, the board only begins to consider an inmate’s
parole eligibility after it receives notice from the department is consistent
with Sparaco’s testimony. Specifically, he testified that the board had not
received any directives or information from the department regarding the
petitioner, such as his name on a list of individuals who are eligible for
parole ‘‘as it does with many other cases.’’ Sparaco only became aware of
the issue regarding the petitioner’s parole eligibility after the petitioner
initiated this habeas action, which was six or more months after the peti-
tioner completed serving his sentence with the definite term and, in Sparaco’s
view, the petitioner became parole eligible. Therefore, irrespective of the
fact that the board has ultimate decision-making authority on the issue
of parole eligibility, the facts of this case make clear that, in effect, the
department’s determination that an inmate is not eligible for parole can
prevent the inmate from being deemed parole eligible by the board for a
significant period of time, nearly five years in the present case.
18
The facts underlying this habeas corpus appeal bring to mind the bureau-
cratic squabbling so brilliantly depicted in the 1985 dystopian film ‘‘Brazil.’’
19
In this vein, while Sparaco was testifying, the following colloquy ensued
between him and the petitioner’s counsel:
‘‘Q. So an initial parole eligibility date is different, really, from follow-up
parole reviews. Correct?
‘‘A. Could you repeat that one more time? Sorry.
‘‘Q. The initial parole eligibility date for a sentenced inmate is different
in kind from follow-up reviews that might be granted after a person’s been
denied following a hearing?
‘‘A. Yes.’’
20
The court specifically characterized the testimony of Sparaco and
Deveau as conflicting.
21
With regard to § 53a-38 (b), the petitioner correctly points out that, by
its plain language, it only applies where a person is ‘‘under more than one
definite sentence . . . .’’ (Emphasis in original.) With regard to § 54-125a
(b), the petitioner maintains that it does not apply to offenses committed
prior to July 1, 1981. Moreover, the petitioner argues that there is no indica-
tion that the legislature intended to retroactively alter parole eligibility for
an indeterminate sentence.
22
The petitioner also argues that the department’s position regarding the
petitioner’s eligibility violates § 53a-35c, which provides that the sentence
of life imprisonment without the possibility of release is not available as a
sentence for an offense committed prior to October 1, 1985. See footnote
13 of this opinion.
23
Specifically, the court stated: ‘‘The petitioner asserts that the respon-
dent’s categorical refusal to classify him as parole eligible based on the now
expired felony murder conviction violates his rights to due process because
it has effectively converted the sentence he is now serving, which is parole
eligible under . . . § 54-125, into one that is not. He also claims that it
violates the prohibition against ex post facto laws, because parole eligibility
was a component of the sentence imposed by the trial court.’’ (Emphasis
in original.) The fact that the court did not set forth its rationale for conclud-
ing that it lacked jurisdiction to consider the ex post facto claim in its
memorandum of decision or by way of articulation does not hamper our
ability to resolve the present claim because the claim rests on undisputed
procedural facts and, as we have stated previously in this opinion, the
jurisdictional issue presents a question of law over which our review is ple-
nary.