Carolina v. Commissioner of Correction ( 2019 )

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TYRONE D. CAROLINA v. COMMISSIONER
OF CORRECTION
(AC 41500)
Bright, Devlin and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of multiple counts of risk of injury
to a child, sought a writ of habeas corpus, claiming, inter alia, that his
right to due process was violated when the respondent Commissioner
of Correction wrongly classified him as a sex offender with treatment
needs. The petitioner claimed that there was no basis for his classifica-
tion as a sex offender because he was never convicted of a sexual
assault and that he was not afforded sufficient procedural protections
before being classified as a sex offender. The habeas court rendered
judgment denying the habeas petition and, thereafter, denied the petition
for certification to appeal, and the petitioner appealed to this court.
Held that the habeas court did not abuse its discretion in denying the
petition for certification to appeal, as the respondent was entitled to
rely on the petitioner’s conviction in classifying him as a sex offender;
although the petitioner sufficiently alleged that he had a protected liberty
interest, he was on notice that he could be classified as a sex offender
because he was convicted of risk of injury to a child, which included
the necessary element that he had had intimate contact with a child
under the age of sixteen in a sexual and indecent manner, and the
petitioner failed to present any evidence to prove that his right to due
process had been violated.
Argued May 28—officially released September 3, 2019
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Kwak, J.; judgment denying the peti-
tion; thereafter, the court denied the petition for certifi-
cation to appeal, and the petitioner appealed to this
court. Appeal dismissed.
Tyrone D. Carolina, self-represented, the appellant
(petitioner).
Edward Wilson, Jr., assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Tyrone D. Carolina,
appeals, following the denial of his petition for certifica-
tion, from the judgment of the habeas court denying
his petition for a writ of habeas corpus in which he
claimed that he was wrongly classified as a sex offender.
On appeal, the petitioner claims that the habeas court
improperly concluded that the classification by the
respondent, the Commissioner of Correction, did not
violate his constitutional right to due process. We dis-
miss the appeal.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was convicted, fol-
lowing a jury trial, of two counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2),1
two counts of risk of injury to a child in violation of
§ 53-21 (a) (1),2 and one count of tampering with a
witness in violation of General Statutes § 53a-151.3 See
State v. Carolina, 143 Conn. App. 438, 440 and n.1, 69
A.3d 341, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013).4
The petitioner appealed to this court, which affirmed
his conviction on direct appeal and determined that the
jury reasonably could have found the following facts:
‘‘The [petitioner] was close friends with [the parents of
the victim, K]. . . . On May 11, 2009, when K returned
home from school, W, a family friend, noticed that K’s
behavior was unusual. K’s cousin and her sister also
were present at that time. They began questioning K,
and she reluctantly revealed that the [petitioner] had
had sexual contact with her. A few hours later, K’s older
brother, L, arrived at the house and saw that K was
upset and shaking. He asked her to accompany him in
his car so that they could talk in private. In response
to L’s questions, K told him of a recent incident in which
the [petitioner] had sexually molested her. The Danbury
police department was contacted and officers arrived at
K’s house later that evening. Thereafter, the [petitioner]
was arrested and charged with offenses related to his
sexual contact with K.’’ (Footnote omitted.) Id., 441.
While the petitioner was incarcerated, the respondent
classified him as a sex offender and recommended that
he participate in sex treatment education pursuant to
the Department of Correction’s offender classification
manual.5 On August 27, 2014, the self-represented peti-
tioner filed a petition for a writ of habeas corpus. In
his petition, he claimed that his incarceration is illegal
because the respondent improperly classified him as a
sex offender. The petitioner appeared to claim, in the
habeas trial, that he was not afforded sufficient proce-
dural protections before being classified as a sex
offender. Following a trial on the merits, the habeas
court rejected the petitioner’s claims by way of a memo-
randum of decision filed on December 13, 2017. The
habeas court concluded that ‘‘[a]lthough the petitioner
protests [the respondent’s] classification of him as a
sex offender with treatment needs, the petitioner has
failed to present any evidence and [to] prove that his
right to due process has been violated,’’ and, thus, failed
to meet his burden of proof. Accordingly, the habeas
court denied the petitioner’s petition for a writ of habeas
corpus and rendered judgment in favor of the respon-
dent. The court then denied the petitioner’s petition for
certification to appeal. This appeal followed.
On appeal, the petitioner claims that the habeas court
improperly denied his petition for a writ of habeas cor-
pus. Specifically, he argues that the respondent violated
his right to due process when he improperly classified
the petitioner as a sex offender. In support of this claim,
the petitioner argues that he was never convicted of a
sexual assault and, therefore, there was no basis for
his classification as a sex offender. The respondent
argues in response that he appropriately classified the
petitioner as a sex offender. We agree with the
respondent.
We initially note that the petitioner, ‘‘[f]aced with a
habeas court’s denial of a petition for certification to
appeal . . . can obtain appellate review of the dis-
missal of his petition for habeas corpus only by satis-
fying the two-pronged test enunciated by our Supreme
Court in Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994), and adopted in Simms v. Warden, 230 Conn.
608, 612, 646 A.2d 162 (1994). First, he must demonstrate
that the denial of his petition for certification consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he must then
prove that the decision of the habeas court should be
reversed on its merits. . . . To prove an abuse of dis-
cretion, the petitioner must demonstrate that the [reso-
lution of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further.’’ (Citation omitted; emphasis in origi-
nal; internal quotation marks omitted.) Mitchell v. Com-
missioner of Correction, 68 Conn. App. 1, 4, 790 A.2d
463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).
In order to determine if the habeas court abused its
discretion we must consider the merits of the petition-
er’s claim.
‘‘In order to state a claim for a denial of procedural
due process . . . a prisoner must allege that he pos-
sessed a protected liberty interest, and was not afforded
the requisite process before being deprived of that lib-
erty interest. . . . A petitioner has no right to due pro-
cess . . . unless a liberty interest has been deprived
. . . . Our first inquiry, therefore, is whether the peti-
tioner has alleged a protected liberty interest. That ques-
tion implicates the subject matter jurisdiction of the
habeas court.’’ (Citation omitted; internal quotation
marks omitted.) Anthony A. v. Commissioner of Cor-
rection, 326 Conn. 668, 674–75, 166 A.3d 614 (2017).
In support of his claim, the petitioner argues that,
just as in Anthony A. v. Commissioner of Correction,
supra, 326 Conn. 668, the improper classification as a
sex offender violated his due process rights. In Anthony
A., the petitioner ‘‘claim[ed] that he was incorrectly
classified as a sex offender . . . .’’ Id., 670. The peti-
tioner in that case ‘‘had not been convicted of a sex
offense and had no prior history as a sex offender.’’ Id.,
672. Our Supreme Court, applying the stigma plus test,
asked ‘‘whether the allegations of the petition demon-
strate that the classification was wrongful and stigma-
tized the petitioner, and that the consequences suffered
by the petitioner were ‘qualitatively different’ from the
punishments usually suffered by prisoners, so that they
constituted a major change in the conditions of confine-
ment amounting to a grievous loss.’’ Id., 680–81. Our
Supreme Court stated that the petitioner met the
‘‘stigma’’ prong of the test because the classification
as a sex offender is ‘‘uniquely stigmatizing.’’6 Id., 681.
Ultimately, our Supreme Court in Anthony A. concluded
that the petitioner met the jurisdictional threshold to
confer jurisdiction because he sufficiently alleged a pro-
tected liberty interest. Id., 686.
As in Anthony A., we conclude that the petitioner in
the present case sufficiently alleged a protected liberty
interest under the stigma plus test because he was clas-
sified as a sex offender, which implicates a liberty inter-
est. The question then is whether the petitioner was
provided constitutionally sufficient process in connec-
tion with his classification. The court in Anthony A.
did not address what process was required before an
inmate is classified as a sex offender because the only
issue in that case was whether the petitioner had a
protected liberty interest in his classification. We note,
however, that the facts and circumstances in Anthony
A. are distinguishable from the present case. In Anthony
A., ‘‘[t]he department classified the petitioner as a sex
offender, despite the fact that he had not been convicted
of a sex offense and had no prior history as a sex
offender.’’ Id., 672. By contrast, in the present case, the
petitioner was convicted of offenses that included the
necessary element that the petitioner had intimate con-
tact with a child under the age of sixteen in a sexual
and indecent manner.
We also note that in Anthony A., our Supreme Court
stated that the petitioner alleged that he was not pro-
vided notice that he could be classified as a sex offender
in light of the underlying charges. Id., 672 n.4. By con-
trast, in the present case the petitioner was on notice
that he could be classified as a sex offender because
he was convicted of risk of injury to a child in violation
of § 53-21 (a) (2).7
Unlike in Anthony A., where there was no conviction
of a sex related offense on which to base the sex
offender classification, in this case the respondent was
entitled to rely on the petitioner’s conviction in classify-
ing him as a sex offender. The petitioner, on the facts
of this case, was due no other process. On the basis of
the foregoing, we cannot conclude that the habeas court
abused its discretion in denying the petitioner’s petition
for certification to appeal.
The appeal is dismissed.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of . . .
a class C felony . . . .’’
3
General Statutes § 53a-151 provides in relevant part: ‘‘(a) A person is
guilty of tampering with a witness if, believing that an official proceeding
is pending or about to be instituted, he induces or attempts to induce a
witness to testify falsely, withhold testimony, elude legal process summoning
him to testify or absent himself from any official proceeding . . . .’’
4
The jury found the petitioner not guilty of three charges of sexual assault
in the second degree in violation of General Statutes § 53a-71 (a) (1).
5
The offender classification manual ‘‘explains the State of Connecticut
Department of Correction inmate classification system and procedures for
usage of the classification instrument.’’ The respondent created the offender
classification manual pursuant to his authority under General Statutes § 18-
81 to ‘‘establish rules for the administrative practices and custodial rehabilita-
tive methods . . . in accordance with recognized correctional standards.’’
The offender classification manual defines classification as ‘‘the ongoing
process of collecting and evaluating information about each inmate to deter-
mine the inmate’s risk and need level for appropriate confinement location,
treatment, programs, and employment assignment whether in a facility or
the community.’’ Consistent with the initial classification procedures, the
respondent considers seven factors to determine the inmate’s ‘‘[n]eeds
[a]ssessment,’’ including ‘‘[s]ex treatment need.’’
6
Our Supreme Court previously has stated: ‘‘Constitutional privacy inter-
ests are implicated . . . because . . . [t]he damage to [citizens’] reputa-
tions resulting from [disclosure] stigmatizes them as currently dangerous
sex offenders, can harm their earning capacities, and can cause them to be
objects of derision in the community.’’ (Internal quotation marks omitted.)
State v. Misiorski, 250 Conn. 280, 295, 738 A.2d 595 (1999); see also State
v. Elias V., 168 Conn. App. 321, 344, 147 A.3d 1102 (recognizing ‘‘stigmatizing
effects of this [sex offender] classification’’), cert. denied, 323 Conn. 938,
151 A.3d 386 (2016).
7
Section 53-21 (a) (2) involves contact with the intimate parts of a child
under sixteen years of age or contact by a child under the age of sixteen
with the intimate parts of the petitioner in a sexual and indecent manner.
See footnote 1 of this opinion.