Dumas v. Commissioner of Correction ( 2016 )

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NYRON DUMAS v. COMMISSIONER
OF CORRECTION
(AC 36974)
Beach, Sheldon and Prescott, Js.
Argued January 19—officially released September 6, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Heather Clark, assigned counsel, for the appellant
(petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Kevin D. Lawlor, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Nyron Dumas, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing in part and denying in part his petition for a writ
of habeas corpus. He claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal and, as to the merits, improperly denied
a count of his habeas petition for failure of proof. We
disagree with the petitioner and agree with the result
reached by the habeas court, but on an alternative
ground.
The following facts and procedural history are rele-
vant to the petitioner’s appeal. In February, 1999, the
then fourteen year old petitioner was at an apartment
visiting another person. While there, he and the victim
exchanged words that led to a heated argument. When
he was asked to leave the apartment, the petitioner did
so. He went outside, below the apartment’s balcony,
and yelled at the victim to come outside. The victim
went onto the balcony and the petitioner fatally shot
the victim in the abdomen. In October, 1999, when the
petitioner was fifteen years old, he pleaded guilty to
manslaughter in the first degree with a firearm in viola-
tion of General Statutes § 53a-55 (a). That charge car-
ried a maximum penalty of forty years imprisonment
and a minimum of five years imprisonment. General
Statutes §§ 53a-55a, 53a-35a (5). At the time of the guilty
plea, the state noted that the agreement called for thirty
years incarceration with a right to argue for less. The
state indicated that, because of the petitioner’s age,
the recommendation was for ten years less than the
maximum sentence permitted by statute. At sentencing,
the defendant’s attorney stated, ‘‘Obviously, I’m going
to argue to the court to consider his age; and I think
it is a very critical component in this particular sentenc-
ing.’’ The court concluded, ‘‘This incident, with all the
circumstances I’ve heard, he took the life of the victim
here. There has not been any showing of any just cause.
The state has given consideration in reducing the charge
and the plea agreement both to the factors I have cited,
having no prior record and his age. . . . The unfortu-
nate circumstance of the age or the loss of loved ones
around him is that he did not understand the value of
human life and the blessing he . . . did have, despite
all the trials that he had been given as well. . . . The
only way that the court can impress upon him the value
of a human life, particularly at his age, is by the impact
my sentence will have on his own.’’ The court then
sentenced the petitioner to thirty years incarceration.
In October, 2008, the self-represented1 petitioner filed
an eighteen count petition for a writ of habeas corpus.
In count eleven, which is the only count implicated in
this appeal, the petitioner alleged that ‘‘the sentence
imposed was inappropriate and disproportionate in
light of the nature of the offense, the character of the
offender, the protection of public interest and the deter-
rent, rehabilitative, isolative and denunciatory purposes
for which the sentence was intended . . . . [T]he sen-
tence imposed was unduly excessive in light of the
petitioner’s youth and diminished capacity at the time
of the crime.’’ (Citation omitted.) The petitioner
attached to his petition a number of documents, includ-
ing transcripts from the underlying criminal proceed-
ings and several scholarly articles.
On May 1, 2014, the day the habeas trial was set to
begin, the following colloquy occurred:
‘‘The Court: Okay. All right. So, Mr. Dumas, are you
ready to proceed to trial today?
‘‘[The Petitioner]: No.
‘‘The Court: Okay. Well, today’s your trial day, so
we’re going forward.
‘‘[The Petitioner]: Yeah, but I don’t understand habeas
law, so that’s why I didn’t file nothing.
‘‘The Court: So, you didn’t file anything?
‘‘[The Petitioner]: No.
‘‘The Court: . . . Eleven is an eighth amendment
claim, as I read it in the most liberal sense, as I’m
required to do . . . . Today is your trial day, so what
happens at trial is that you’re supposed to go forward
and present evidence on those claims. . . . So, what
evidence do you have to support your remaining claims
. . . .2 Are you prepared to present witnesses today?
‘‘[The Petitioner]: No. The only thing I have, whatever
is in that petition. That’s it. . . .
‘‘The Court: . . . Well, that’s not evidence. Evidence
is presented through witnesses and/or exhibits. So, you
are telling me you have no witnesses that you wish to
present on your claims?
‘‘[The Petitioner]: Right now, no.
‘‘The Court: Well, I’m reading count eleven in the
broadest sense possible since he’s pro se, and I think
that could potentially be an eighth amendment claim,
so I’m not dismissing that outright. However, I am going
to deny the petition and dismiss it because the petitioner
has not come forward with any evidence today, the day
of his trial, to establish [count eleven]. The court has
no choice but to deny the petition.’’3 (Footnote added.)
The judgment file stated that count eleven was dis-
missed for failure to prosecute. Thereafter, the court
denied the petition for certification to appeal, and this
appeal followed.
In May, 2015, the respondent, the Commissioner of
Correction, filed a late motion for rectification of the
judgment file and a motion for permission to file the
late motion for rectification, arguing that the judgment
file should be corrected to reflect a denial of the petition
as to count eleven on the merits. This court denied the
respondent’s motion for permission to file a late motion
for rectification. This court sua sponte ordered the
habeas court to articulate whether it had intended to
dismiss or deny count eleven. The habeas court articu-
lated that ‘‘count 11 of the petition . . . was denied
for lack of any proof.’’
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal and that the court erred in denying count eleven
for lack of proof. He contends that, although the elev-
enth count of his habeas petition largely relied on Roper
v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed.
2d 1 (2005), his pleading, read broadly and realistically,
included a claim invoking Miller v. Alabama, U.S.
, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and
Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 176
L. Ed. 2d 825 (2010), which had not been decided by
the United States Supreme Court when the petition was
filed in 2008.4 He argues that the eighth amendment
claim presents a question of law properly reviewed
under a plenary standard; thus, the habeas court erred
when it denied the claim for lack of proof. He further
argues that the documents attached to his habeas peti-
tion could properly have been reviewed as part of the
expanded record pursuant to Practice Book § 23-36.
The respondent argues that the court properly denied
count eleven and the petition for certification to appeal
because the petitioner failed to present any evidence
to support his claim, and the documents attached to
the petition did not become part of an expanded record
pursuant to Practice Book § 23-36.
We need not address the petitioner’s claim that his
rights secured by the eighth amendment were violated
in the manner urged by the petitioner or his related
procedural claims. Rather, we decide the case on an
alternative ground, necessitated by the rapid advance
of case law regarding juvenile sentencing procedure.
The constitutional law regarding the sentencing of
juvenile offenders has been developing rapidly in recent
years; thus, a brief overview may be helpful. The eighth
amendment prohibits governmental imposition of
‘‘cruel and unusual punishments . . . .’’ U.S. Const.,
amend. VIII. ‘‘The eighth amendment’s prohibition
against cruel and unusual punishment is made applica-
ble to the states through the due process clause of the
fourteenth amendment to the United States constitu-
tion.’’ State v. Carrasquillo, 290 Conn. 209, 211 n.7, 962
A.2d 772 (2009). ‘‘[T]he United States Supreme Court
has indicated that at least three types of punishment
may be deemed unconstitutionally cruel: (1) inherently
barbaric punishments; (2) excessive and disproportion-
ate punishments; and (3) arbitrary or discriminatory
punishments.’’ State v. Santiago, 318 Conn. 1, 19, 122
A.3d 1 (2015). With respect to the second, the ‘‘United
States Supreme Court has recognized that the eighth
amendment contains a proportionality principle, that
is, that punishment for crime should be graduated and
proportioned to both the offender and the offense.’’
(Internal quotation marks omitted.) Casiano v. Com-
missioner of Correction, 317 Conn. 52, 58–59, 115 A.3d
1031 (2015), cert. denied sub nom. Semple v. Casiano,
U.S. , 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).
‘‘[T]he United States Supreme Court decided a trilogy
of cases that fundamentally altered the legal landscape
for the sentencing of juvenile offenders. . . . In Roper
v. Simmons, supra, 543 U.S. 578, the court held that
the eighth and fourteenth amendments prohibit the
imposition of the death penalty on juvenile offenders.
In Graham v. Florida, supra, 560 U.S. 82, the court held
that the eighth amendment prohibits the sentence of
life without the possibility of parole for juvenile nonho-
micide offenders. Most recently, in Miller v. Alabama,
supra, 132 S. Ct. 2463–64, the court held that the eighth
amendment prohibits mandatory sentencing schemes
that mandate life in prison without the possibility of
parole for juvenile homicide offenders, although a sen-
tence of life imprisonment without the possibility of
parole may be deemed appropriate following consider-
ation of the child’s age related characteristics and the
circumstances of the crime. These federal cases recog-
nized that [t]he concept of proportionality is central to
the Eighth Amendment. Embodied in the Constitution’s
ban on cruel and unusual punishments is the precept
of justice that punishment for crime should be gradua-
ted and proportioned to [the] offense.’’ (Footnote omit-
ted; internal quotation marks omitted.) State v. Logan,
160 Conn. App. 282, 288–89, 125 A.3d 581 (2015), cert.
denied, 321 Conn. 906, 135 A.3d 279 (2016).
The respondent posits that claims made under Gra-
ham v. Florida, supra, 560 U.S. 48 (life sentence without
possibility of parole for juveniles convicted of nonhomi-
cide offense violates eighth amendment), are now moot
because the October 1, 2015 enactment of Public Acts
2015, No. 15-84, § 1 (f) (1), amended parole procedures
such that all juvenile offenders are now eligible for
parole within certain time periods.5 We agree and thus
consider count eleven only to the extent that it makes
a claim under Miller.
This court summarized Connecticut’s recent history
in the field of juvenile sentencing procedures in Logan:
‘‘In State v. Taylor G., 315 Conn. 734, 738, 741, 110 A.3d
338 (2015), the defendant was fourteen and fifteen years
old when he committed nonhomicide offenses for
which the trial court imposed a total effective sentence
of ten years imprisonment followed by three years of
special parole. Our Supreme Court concluded that the
ten and five year mandatory minimum sentences [that
the defendant would serve concurrently], under which
the defendant is likely to be released before he reaches
the age of thirty, do not approach what the [United
States Supreme Court] described in Roper, Graham and
Miller as the two harshest penalties. . . . The court
reasoned that [a]lthough the deprivation of liberty for
any amount of time, including a single year, is not insig-
nificant, Roper, Graham and Miller cannot be read to
mean that all mandatory deprivations of liberty are of
potentially constitutional magnitude, and that the
defendant will be able to work toward his rehabilitation
and look forward to release at a relatively young age.
. . .
‘‘[I]n Casiano v. Commissioner of Correction, [supra,
317 Conn. 55], the petitioner was sixteen years old when
he committed homicide and nonhomicide offenses for
which the trial court imposed a total effective sentence
of fifty years imprisonment without the possibility of
parole pursuant to a plea agreement. Our Supreme
Court determined that Miller applies retroactively to
cases arising on collateral review, and that a fifty year
sentence without the possibility of parole was the func-
tional equivalent of life imprisonment without the possi-
bility of parole and, therefore, subject to the sentencing
procedures set forth in Miller. . . . The court observed
that because the petitioner would be released from
prison at the age of sixty-six and the average life expec-
tancy of a male in the United States is seventy-six years,
he would only have approximately ten more years to
live outside of prison after his release. . . . The court
explained that [a] juvenile is typically put behind bars
before he has had the chance to exercise the rights
and responsibilities of adulthood, such as establishing
a career, marrying, raising a family, or voting. Even
assuming the juvenile offender does live to be released,
after a half century of incarceration, he will have irrepa-
rably lost the opportunity to engage meaningfully in
many of these activities and will be left with seriously
diminished prospects of his quality of life for the few
years he has left. . . . The court concluded that a fifty
year term and its grim prospects for any future outside
of prison effectively provide a juvenile offender with
no chance for fulfillment outside prison walls, no
chance for reconciliation with society, no hope.’’ (Cita-
tions omitted; footnotes omitted; internal quotation
marks omitted.) State v. Logan, supra, 160 Conn.
App. 291–93.
Logan was decided more than one year after the
habeas court’s decision in this case. In Logan, a panel
of this court held that a thirty-one year sentence for
murder and conspiracy to commit murder, imposed on
a defendant who was seventeen years old at the time
of the offenses, was not the equivalent of a life sentence
because ‘‘even if he is not paroled, [he] will be able to
work toward rehabilitation, and can look forward to
release at an age when he will still have the opportunity
to live a meaningful life outside of prison and to become
a productive member of society. Although the depriva-
tion of liberty for any amount of time, including a single
year, is not insignificant . . . Miller cannot be read to
mean that all mandatory deprivations of liberty are of
potentially constitutional magnitude.’’ (Footnote omit-
ted; internal quotation marks omitted.) Id., 293–94. The
court concluded that thirty-one years was not the equiv-
alent of a life sentence; relief pursuant to Miller, then,
was unavailable to the defendant in Logan.
The legal landscape changed, then, after this case
was decided in the habeas court. Most relevant to the
disposition of this case, Logan was decided while this
appeal was pending. Logan held that, as a matter of
law, the imposition of a thirty-one year sentence did
not trigger relief pursuant to Miller.
The petitioner in the present case was fourteen years
old at the time of the offense and he received a thirty
year sentence. Similar to the seventeen year old defen-
dant in Logan who received a thirty-one year sentence,
the petitioner in this case will be released before he is
fifty years old even if he is not paroled.6
On June 27, 2016, we requested that the parties submit
supplemental briefs on the question of ‘‘whether this
court should consider the merits of this appeal if the
habeas court could not afford practical relief in light
of [Logan].’’ The gravamen of the respondent’s brief
was that the subject area is now controlled by Mont-
gomery v. Louisiana, U.S. , 136 S. Ct. 718, 193
L. Ed. 2d 599 (2016), and General Statutes (Supp. 2016)
§ 54-125a (f), and that this case accordingly should be
either dismissed or affirmed on the ground that the
petitioner now has a constitutionally adequate remedy:
he may demonstrate maturity in the context of a parole
hearing.7 The petitioner urged that circumstances in
this case may be different from those in Logan, and
argued that, in any event, Logan was wrongly decided.
We affirm on a different, but closely related, ground,8
which is that the habeas court would now be obligated
to deny relief pursuant to Logan regardless of whether
the petitioner had met his burden of going forward with
the presentation of evidence because his sentence was
not functionally equivalent to a life sentence. We need
not repeat the criteria set forth in Logan and cases
cited therein; suffice it to say that if a thirty-one year
sentence imposed on a juvenile offender does not vio-
late the eighth amendment, then surely a thirty year
sentence does not. The habeas court properly denied
the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner filed a motion for appointment of habeas counsel, which
the court granted. Habeas counsel later filed a motion for permission to
withdraw, which the court also granted.
2
The court dismissed counts one through ten, twelve, thirteen and fifteen
because of procedural default, and determined that counts seventeen and
eighteen did not raise separate claims. The court questioned the petitioner
as to what evidence he had to support the remaining claims—counts eleven,
fourteen and sixteen.
3
The court also dismissed counts fourteen and sixteen for failure to
prosecute. There is no claim on appeal regarding those counts.
4
Miller applies retroactively to cases on collateral review. Casiano v.
Commissioner of Correction, 317 Conn. 52, 61–72, 115 A.3d 1031 (2015),
cert. denied sub nom. Semple v. Casiano, U.S. , 136 S. Ct. 1364, 194
L. Ed. 2d 376 (2016).
5
A juvenile offender sentenced to a term of thirty years imprisonment is
now eligible for a parole hearing after serving 60 percent of the sentence,
or eighteen years. See Public Acts 2015, No. 15-84, § 1 (f) (1), which is now
codified as General Statutes (Supp. 2016) § 54-125a (f).
6
See footnote 5 of this opinion.
7
The petitioner subsequently moved this court either to strike the respon-
dent’s brief, because it advanced arguments well beyond the scope of the
question presented, or to grant him the opportunity to respond. Because
we decide the case on another ground, we take no action on the petition-
er’s motion.
We note, however, that a panel of this court was asked to address the
Montgomery issue in State v. Williams-Bey, 167 Conn. App. 744, A.3d
(2016), and State v. McClean, 167 Conn. App. 781, A.3d (2016).
8
We see no injustice in affirming the judgment on an alternative ground
rather than dismissing the appeal on the ground that we can afford no
practical relief, where the parties had the opportunity to address the Logan
issue. See, e.g., State v. Brown, 242 Conn. 389, 401, 699 A.2d 943 (1997)
(court may reformulate certified question); see also Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,
159–64, 84 A.3d 840 (2014) (when appellant entitled to directed judgment
upon prevailing on appeal, ‘‘the reviewing court may review an unpreserved,
alternative ground for affirmance, or raise the issue sua sponte, only if the
claim merits review under the plain error doctrine or [State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015)], or under exceptional circumstances’’
such as intervening case law); State v. Martin M., 143 Conn. App. 140, 151,
70 A.3d 135 (‘‘[t]his court is not precluded, however, from reviewing an
alternate ground that was not raised in accordance with Practice Book § 63-
4 [a] [1] [A] so long as the appellant will not be prejudiced by consideration
of that ground for affirmance’’ [internal quotation marks omitted]), cert.
denied, 309 Conn. 919, 70 A.3d 41 (2013).