Torres v. Commissioner of Correction ( 2017 )

 CARLOS TORRES v. COMMISSIONER OF
CORRECTION
(AC 38544)
Lavine, Alvord and Keller, Js.
Syllabus
The petitioner, who had been convicted on a guilty plea of the crimes of
burglary in the first degree and conspiracy to commit burglary in the
first degree, sought a writ of habeas corpus, claiming that the respondent,
the Commissioner of Correction, improperly had failed to give the peti-
tioner risk reduction earned credits for his conduct that occurred during
the period of time that he was confined as a pretrial detainee. Pursuant
to the statute (§ 18-98e) that was enacted while the petitioner was serving
his sentence, the respondent was required to implement a program in
which eligible inmates can earn, at the discretion of the respondent,
risk reduction earned credits to reduce the length of their sentences.
Under the statute, the respondent could retroactively award such credits
to inmates. Although the respondent retroactively credited the petitioner
with 119 days of risk reduction earned credits on the basis of his conduct
that occurred after the date he was sentenced up to the effective date
of § 18-98e, the petitioner did not receive any such credits for the time
he spent as a pretrial detainee on the ground that he was not eligible
to earn credits before the date on which he was sentenced. In his
habeas petition, the petitioner alleged, inter alia, that the respondent’s
application of § 18-98e violated the petitioner’s constitutional right to
the equal protection of the law. The habeas court rendered judgment
denying the habeas petition and, thereafter, denied the petition for certifi-
cation to appeal, and the petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal; because the issues of whether § 18-98e, a relatively
recently enacted statute, gives pretrial detainees the opportunity to
earn risk reduction earned credits to be applied retroactively to their
sentences, and if not, whether that is a violation of a pretrial detainee’s
constitutional right of equal protection were issues of first impression,
the issues were debatable among jurists of reason, and could have been
resolved by a court in a different manner.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly concluded that he was not eligible for risk reduction earned credits
as a pretrial detainee and to have the credits applied retroactively to
his sentence: the language of § 18-98e, which provides that any person
sentenced to a term of imprisonment for a crime committed on or after
October 1, 1994, may be eligible to earn risk reduction credit, was clear
and unambiguous, and demonstrated that the legislature intended to
afford only sentenced inmates the opportunity to earn risk reduction
earned credits, and, therefore, because the petitioner was not sentenced
until September 22, 2009, he was ineligible to earn any risk reduction
earned credits before that date, including the time in which he was a
pretrial detainee; moreover, the petitioner could not prevail on his claim
that § 18-98e violates the equal protection clause because it does not
permit indigent individuals who are held in presentence confinement
to earn risk reduction credits, as our Supreme Court recently addressed
a nearly identical issue and determined that the exclusion of indigent
individuals held in presentence confinement from the earned risk reduc-
tion credit scheme does not violate equal protection, and, therefore, the
habeas court lacked subject matter jurisdiction over the petitioner’s
claim because it was not one for which habeas relief could be granted.
Argued March 8—officially released August 15, 2017
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, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Affirmed.
Temmy Ann Miller, assigned counsel, with whom,
on the brief, was Owen Firestone, for the appellant
(petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Carlos Torres, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his second amended petition for a writ of habeas corpus
(second petition). The petitioner claims that the court
(1) abused its discretion by denying his petition for
certification to appeal and (2) improperly concluded
that he was not entitled to earn ‘‘risk reduction earned
credit,’’ pursuant to General Statutes § 18-98e, during
the period of time he was confined as a pretrial
detainee,1 and improperly concluded that he was not
deprived of his right to equal protection guaranteed
by the fifth and fourteenth amendments to the United
States constitution. We agree that the habeas court
abused its discretion by denying the petitioner’s petition
for certification to appeal, but conclude that it properly
denied his second petition. Accordingly, we affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to resolve the petitioner’s appeal. The petitioner
was arrested on July 30, 2008, for crimes that took place
on April 4, 2007, and charged with conspiracy to commit
burglary in the first degree in violation of General Stat-
utes §§ 53a-101 and 53a-48 (a), and burglary in the first
degree in violation of § 53a-101. Because of his inability
to secure bond, he remained in the custody of the
respondent, the Commissioner of Correction, as a pre-
trial detainee while awaiting the resolution of the pend-
ing charges. On September 22, 2009, he pleaded guilty
to both charges, and on that same day, the trial court,
Gold, J., sentenced him to fifteen years of incarceration,
which was to be suspended after eight years, followed
by five years of probation. The respondent credited the
petitioner with 419 days of presentence confinement
jail credits for the time he spent confined as a pretrial
detainee from July 30, 2008, to September 21, 2009,
pursuant to General Statutes § 18-98d.2 On October 9,
2009, the petitioner was assigned an offender account-
ability plan. An offender accountability plan is created
for every individual who is sentenced to a term of incar-
ceration and recommends a list of rehabilitative pro-
grams the individual should participate in while he or
she is incarcerated. The requirements of each plan are
unique to each inmate because the recommendations
within the plans are based on an inmate’s criminal his-
tory and the nature of the underlying offense.
In 2011, while the petitioner was still serving his sen-
tence, the General Assembly passed Public Act 11-51,
codified at §18-98e.3 Section 18-98e, effective July 1,
2011, requires the respondent to implement a program
in which eligible inmates can earn, at the discretion of
the respondent, risk reduction earned credits to reduce
the length of their sentences. Eligible inmates can earn
up to five risk reduction earned credits per month only
if they adhere to their offender accountability plans,
participate in eligible programs and activities, and
exhibit good behavior. Notably, the respondent can ret-
roactively award risk reduction earned credits to
inmates based on their conduct that occurred on or
after April 1, 2006, provided that their conduct met the
requirements of subsection (b) of the statute and of the
rules of the program created by the respondent.
In October, 2011, the respondent retroactively cred-
ited the petitioner with 119 days of risk reduction
earned credits on the basis of his conduct that occurred
between October 5, 2009, and October 1, 2011.4 He was
not credited with any risk reduction earned credits for
his conduct that occurred during the period of time he
was confined as a pretrial detainee between July 30,
2008, and September 21, 2009.
On July 27, 2015, the petitioner filed his second peti-
tion. In count one, he alleged that the ‘‘respondent’s
application of . . . § 18-98e, deprive[d] the petitioner
of his right to have a correct interpretation of the law
applied to him’’ when it did not give him the ‘‘opportu-
nity to earn or be awarded retroactive risk reduction
earned credits for [the] period of time [he] spent as a
presentenced detainee.’’ In count two, he alleged that
the ‘‘respondent’s application of § 18-98e violated the
petitioner’s right to the equal protection of the law, as
guaranteed by the federal constitution.’’
On August 4, 2015, the habeas court, Fuger, J., con-
ducted a habeas trial, during which both the petitioner
and the respondent called witnesses to testify. Michelle
Deveau, a records specialist with the Department of
Correction, testified that the petitioner was not
awarded any risk reduction earned credits for the time
he spent confined as a pretrial detainee because he was
not eligible to earn credits before the date on which
he was sentenced. Heidi Palliardi, an employee for the
Sentence Calculation and Interstate Management Unit
of the Department of Correction, testified that every
inmate is assigned an offender accountability plan
approximately fourteen days after he or she is sen-
tenced. She explained that inmates must adhere to their
offender accountability plans in order to earn risk
reduction earned credit because the purpose of the
credits is ‘‘to encourage programming among the
offender population, particularly the sentenced popula-
tion.’’ The rules require adherence to offender account-
ability plans because the respondent ‘‘didn’t want to
award credits to individuals [who] did not want to cor-
rect behavior.’’ She testified that pretrial detainees are
not assigned offender accountability plans because they
have not been convicted of an offense and, therefore,
have not been sentenced.
On August 19, 2015, the habeas court denied the peti-
tioner’s second petition. In its memorandum of deci-
sion, it stated: ‘‘[T]he statute that governs the award of
[risk reduction earned credits] is clear and unambigu-
ous. In order to earn [risk reduction earned credits],
an inmate must be a sentenced prisoner. It is equally
clear and beyond dispute that the petitioner was not a
sentenced prisoner during this period. Consequently, it
is clear that based upon [the] unequivocal meaning of
. . . § 18-98e, the petitioner was ineligible to earn [risk
reduction earned credits] during the period [from] July
30, 2008, [to] September 21, 2009.’’ (Emphasis omitted.)
With regard to the petitioner’s equal protection claim,
the habeas court explained that because ‘‘credits to be
applied to judicial sentences of incarceration are purely
the creation of statute, it is clear that the legislature
limited the circumstances under which [risk reduction
earned credits] may be earned to a person who has
already been sentenced,’’ and to interpret the statute
as meaning otherwise would ‘‘usurp the role of the
duly elected members of the General Assembly . . . .’’
(Emphasis in original.)
On August 28, 2015, the petitioner filed a petition for
certification to appeal, which the habeas court denied
on September 18, 2015. This appeal followed.
I
The petitioner’s first claim on appeal is that the
habeas court abused its discretion by denying his peti-
tion for certification to appeal.5 Specifically, he argues
that both of the underlying claims in his second petition
have not been previously addressed by our appellate
courts, and, therefore, both claims are debatable among
jurists of reason and a court could resolve them in
a different manner. We agree with the petitioner and
conclude that the habeas court abused its discretion.
‘‘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.’’ (Citations omitted; internal
quotation marks omitted.) Miller v. Commissioner of
Correction, 154 Conn. App. 78, 84, 105 A.3d 294 (2014),
cert. denied, 315 Conn. 920, 107 A.3d 959 (2015). This
court has previously concluded that issues of first
impression in Connecticut meet one or more of the
three criteria. See, e.g., Rodriguez v. Commissioner of
Correction, 131 Conn. App. 336, 347, 27 A.3d 404 (2011)
(concluding petitioner’s claim deserved encouragement
to proceed further when issue not previously addressed
by any Connecticut appellate court), aff’d, 312 Conn.
345, 92 A.3d 944 (2014); Graham v. Commissioner of
Correction, 39 Conn. App. 473, 476, 664 A.2d 1207 (con-
cluding petitioner’s claim one of first impression and,
therefore, debatable among jurists of reason and court
could resolve issue in different manner), cert. denied,
235 Conn. 930, 667 A.2d 800 (1995).
On the basis of our review of the two claims raised
by the petitioner in his second petition, we conclude
that the habeas court abused its discretion in denying
the petitioner’s petition for certification to appeal. We
are unable to locate any case in which our appellate
courts have addressed the issues of whether § 18-98e,
a relatively recently enacted statute, gives pretrial
detainees the opportunity to earn risk reduction earned
credits to be applied retroactively to their sentences,
and if not, whether that is a violation of pretrial detain-
ees’ right of equal protection guaranteed by the fifth
and fourteenth amendments to the United States consti-
tution.6 Because the petitioner’s second petition pre-
sents two issues of first impression in Connecticut, we
will conduct a full review of the merits of his appeal.7
II
The petitioner’s second claim on appeal is that the
habeas court improperly resolved the claims in his sec-
ond petition. We disagree.
A
The petitioner first claims, in essence, that the habeas
court improperly concluded that he was not eligible for
risk reduction earned credits as a pretrial detainee and
to have the credits retroactively applied to his sen-
tence.8 Specifically, he argues that § 18-98e is not clear
and unambiguous, and his interpretation of the statute
is consistent with the intent of the legislature, namely,
to ‘‘encourage inmates to participate in programming
that would increase their chances of living law-abiding
lives after being released from prison.’’ The respondent
argues that § 18-98e is clear and unambiguous, and a
plain reading of the statute reveals that the legislature
intended to afford only sentenced inmates the opportu-
nity to earn risk reduction earned credits. We agree
with the respondent.
The petitioner’s claim requires us to interpret § 18-
98e. ‘‘[I]ssues of statutory construction raise questions
of law, over which we exercise plenary review.’’ (Inter-
nal quotation marks omitted.) Kendall v. Commis-
sioner of Correction, 162 Conn. App. 23, 28, 130 A.3d 268
(2015). ‘‘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 meaning, 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 con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Cruz v. Montanez, 294 Conn.
357, 367, 984 A.2d 705 (2009). ‘‘A statute is ambiguous
if, when read in context, it is susceptible to more than
one reasonable interpretation. . . . Additionally, statu-
tory silence does not necessarily equate to ambiguity.’’
(Internal quotation marks omitted.) Kendall v. Com-
missioner of Correction, supra, 37. ‘‘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 construc-
tion.’’ Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d
846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813,
88 L. Ed. 2d 787 (1986).
The salient language of § 18-98e is: ‘‘(a) Notwithstand-
ing any provision of the general statutes, any person
sentenced to a term of imprisonment for a crime com-
mitted on or after October 1, 1994, and committed to
the custody of the Commissioner of Correction on or
after said date . . . may be eligible to earn risk reduc-
tion credit toward a reduction of such person’s sentence
. . . . (b) An inmate may earn risk reduction credit
for adherence to the inmate’s offender accountability
program, for participation in eligible programs and
activities, and for good conduct and obedience to insti-
tutional rules as designated by the commissioner . . . .
(d) Any credit earned under this section may only be
earned during the period of time that the inmate is
sentenced to a term of imprisonment and committed
to the custody of the commissioner and may not be
transferred or applied to a subsequent term of imprison-
ment. . . .’’ (Emphasis added.)
After considering the text of § 18-98e and its relation-
ship to other statutes, we conclude that the statute is
plain and unambiguous. The text of the statute clearly
and unambiguously shows that the legislature intended
for only sentenced inmates to be eligible to earn risk
reduction earned credits. Subsection (a) expressly pro-
vides that ‘‘any person sentenced to a term of imprison-
ment for a crime committed on or after October 1,
1994’’ may be eligible to earn risk reduction earned
credits, and subsection (d) expressly states that an indi-
vidual is only eligible to earn risk reduction earned
credits ‘‘during the period of time that the inmate is
sentenced to a term of imprisonment.’’ (Emphasis
added.) There is no other way to reasonably interpret
these provisions apart from meaning that only sen-
tenced inmates are eligible to earn risk reduction earned
credits. Additionally, General Statutes § 18-7a (c)9 pro-
vides: ‘‘Any person sentenced to a term of imprisonment
for an offense committed on or after July 1, 1983, may,
while held in default of bond or while serving such
sentence, by good conduct and obedience to the rules
which have been established for the service of his sen-
tence, earn a reduction of his sentence . . . .’’ (Empha-
sis added.) The inclusion of the phrase ‘‘while held in
default of bond’’ shows that the legislature intended to
allow pretrial detainees who were unable to obtain bond
to earn good conduct presentence credits. In contrast,
no comparable language appears within the text of § 18-
98e. If the legislature wanted to permit pretrial detain-
ees to earn risk reduction earned credits, it would have
included such a provision within the statute. See Dept.
of Public Safety v. State Board of Labor Relations,
296 Conn. 594, 605, 996 A.2d 729 (2010) (‘‘[w]e are not
permitted to supply statutory language that the legisla-
ture may have chosen to omit’’ [internal quotation
marks omitted]).
In the present case, the petitioner was arrested on
July 30, 2008, for crimes that took place on April 4,
2007, and was not sentenced until September 22, 2009.
Because he was not a sentenced inmate before Septem-
ber 22, 2009, we conclude that he was ineligible to earn
any risk reduction earned credits before September 22,
2009, including the time in which he was a pretrial
detainee between July 30, 2008, and September 21,
2009.
B
The petitioner also claims that the respondent’s inter-
pretation of § 18-98e violated his right to equal protec-
tion guaranteed by the fifth and fourteenth amendments
to the United States constitution. It appears that he
argues that inmates who spent time confined as pretrial
detainees because they were indigent, like the peti-
tioner, are similarly situated to inmates who were not
incarcerated prior to serving their sentences. Because
§ 18-98e permits inmates to begin earning risk reduction
earned credits only after they are sentenced, he argues
that inmates who were incarcerated before they were
sentenced ‘‘have a diminished opportunity to earn cred-
its to reduce the number of days necessary to discharge
their sentences.’’ He contends that this interpretation
results in indigent inmates remaining incarcerated for
longer periods of time than similarly situated nonindi-
gent inmates, and, therefore, his fundamental right to
liberty is infringed upon on the basis of his indigency,
and § 18-98e should be reviewed under an ‘‘intermedi-
ate’’ heightened level of scrutiny, which it cannot pass.
The respondent argues that the equal protection clause
does not apply because pretrial detainees and sen-
tenced inmates are not similarly situated. Even if they
were, he argues that rational basis review of § 18-98e
is appropriate, and there are numerous plausible justifi-
cations that support the constitutionality of the statute.
After the parties briefed this issue, and after oral
argument before this court was conducted, our
Supreme Court decided Perez v. Commissioner of Cor-
rection, 326 Conn. 357, A.3d (2017), which is
dispositive of this claim. In Perez, the petitioner claimed
that § 18-98e facially violates the equal protection
clause because it does not permit indigent individuals
who are held in presentence confinement to earn risk
reduction credits. Id., 382. Our Supreme Court held:
‘‘[E]ven if we assume that indigent individuals who can-
not afford bail are held in presentence confinement
prior to sentencing and nonindigent individuals who are
not held in presentence confinement prior to sentencing
are similarly situated, the petitioner’s claim is without
merit. . . . [A]n inmate has no fundamental right in
the opportunity to earn risk reduction credit because
such credit is a creature of statute and not constitution-
ally required. The petitioner has not alleged that the
earned risk reduction credit statute has caused him, or
other indigent individuals, to be imprisoned beyond the
maximum period authorized by statute. Therefore . . .
the exclusion of indigent individuals held in presen-
tence confinement from the earned risk reduction credit
scheme does not violate equal protection if there is a
rational basis for such treatment. . . . In the context
of the rational bases identified in McGinnis [v. Royster,
410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973)],
therefore, the petitioner also has failed to state a claim
for which habeas relief may be granted . . . .’’ (Citation
omitted.) Perez v. Commissioner of Correction,
supra, 386.
Although Perez is fully dispositive of the petitioner’s
equal protection claim, it was decided subsequent to the
judgment rendered by the habeas court on the merits of
the present petition. We, therefore, affirm the judgment
of the habeas court on the alternative ground that it
lacked subject matter jurisdiction over the claim
because it failed to state a claim for which habeas relief
may be granted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his second petition and on appeal, the petitioner describes himself
as a ‘‘presentenced detainee’’ while he was confined in the custody of the
respondent, the Commissioner of Correction, prior to being sentenced on
September 22, 2009. However, he pleaded guilty to the offenses and was
sentenced on the same day and, thus, did not spend any time confined in
the custody of the respondent waiting to be sentenced after pleading guilty.
For purposes of clarity, therefore, we will use the phrase ‘‘pretrial detainee’’
instead of ‘‘presentenced detainee’’ when referring to the petitioner’s for-
mer status.
2
General Statutes § 18-98d provides in relevant part: ‘‘(a) (1) Any person
who is confined to a community correctional center or a correctional institu-
tion 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 imprisonment imposed . . . .’’
3
General Statutes § 18-98e provides in relevant part: ‘‘(a) Notwithstanding
any provision of the general statutes, any person sentenced to a term of
imprisonment for a crime committed on or after October 1, 1994, and
committed to the custody of the Commissioner of Correction on or after said
date . . . may be eligible to earn risk reduction credit toward a reduction of
such person’s sentence, in an amount not to exceed five days per month,
at the discretion of the Commissioner of Correction for conduct as provided
in subsection (b) of this section occurring on or after April 1, 2006.
‘‘(b) An inmate may earn risk reduction credit for adherence to the inmate’s
offender accountability program, for participation in eligible programs and
activities, and for good conduct and obedience to institutional rules as
designated by the commissioner . . . .
‘‘(c) The award of risk reduction credit earned for conduct occurring
prior to July 1, 2011, shall be phased in consistent with public safety, risk
reduction, administrative purposes and sound correctional practice, at the
discretion of the commissioner, but shall be completed not later than July
1, 2012.
‘‘(d) Any credit earned under this section may only be earned during the
period of time that the inmate is sentenced to a term of imprisonment and
committed to the custody of the commissioner and may not be transferred or
applied to a subsequent term of imprisonment. . . .
‘‘(f) The commissioner shall adopt policies and procedures to determine
the amount of credit an inmate may earn toward a reduction in his or her
sentence and to phase in the awarding of retroactive credit authorized by
subsection (c) of this section.’’ (Emphasis added.)
4
In accordance with § 18-98e (c), the respondent’s program became effec-
tive on October 1, 2011. For eligible inmates who were sentenced on or
after April 1, 2006, the respondent started calculating the number of risk
reduction earned credits they earned starting from fourteen days following
the date on which they began serving their sentences because that is the
day in which they are usually assigned their offender accountability plans.
5
Although we conclude that the habeas court abused its discretion by
denying the petitioner’s petition for certification to appeal, we flatly reject
the petitioner’s argument that the habeas court abused its discretion on the
ground that it ‘‘did not consider the petitioner’s actual claims in denying
certification.’’ The petitioner asserted a number of times throughout his
brief and during oral argument before us that the habeas court misconstrued
the claims in his second petition. Specifically, he argues that he ‘‘never
disputed that a [pretrial] detainee cannot earn [risk reduction earned credits]
month-by-month when held in presentence confinement. Rather, [the] peti-
tioner claim[s] that once an inmate was sentenced and thereafter credited
with presentence confinement credit, those days of credit became time he
was serving his sentence, and [the] respondent both was authorized and
required to consider those days a period of time during which the inmate
was serving his sentence before sentence was imposed, and to consider that
time for an award of [risk reduction earned credits].’’ (Emphasis in original.)
On the basis of our review of the record, however, we wholly disagree
with the petitioner’s argument that the habeas court did not consider the
petitioner’s actual claims in rendering its decision. In count one of his second
petition, he claimed that the respondent misinterpreted § 18-98e because
the statute ‘‘is ambiguous with respect to a sentenced prisoner’s opportunity
to earn or be awarded retroactive risk reduction earned credits for the
period of time spent as a [pretrial] detainee after April 1, 2006, and before
July 1, 2011.’’ (Emphasis added.) In count two, he claimed that his right to
equal protection was violated because ‘‘having been held . . . as a [pretrial]
detainee, [he] did not have [the] opportunity to earn risk reduction earned
credit[s] or retroactive risk reduction earned credit[s] for [the entirety] of
his eight year sentence.’’ (Emphasis added.) In his prayer for relief, he
requested that the habeas court order that he ‘‘is not excluded from earning
retroactive risk reduction earned credits for the period of time he was
held in presentence confinement on charges for which he was ultimately
sentenced . . . .’’ (Emphasis added.) During the habeas trial, the petitioner’s
counsel stated that the petitioner’s argument is that he ‘‘should have been
deemed eligible to have the opportunity to earn such credits . . . based
on the presentence time.’’ (Emphasis added.) Accordingly, we conclude that
the habeas court properly reviewed the claims presented in the petitioner’s
second petition.
6
We note that the habeas court rendered its judgment before our Supreme
Court decided Perez v. Commissioner of Correction, 326 Conn. 357,
A.3d (2017). See part II B of this opinion.
7
We note that a petitioner is not automatically entitled to a review of the
merits of a claim simply on the basis that the claim has not been previously
addressed by our appellate courts. Rather, in deciding whether a habeas
court abused its discretion in denying a petitioner’s petition for certification
to appeal, this court must conduct a case-by-case inquiry into whether the
issue is debatable among jurists of reason, the court could resolve the issue
in a different manner, or the issue is adequate to deserve encouragement
to proceed further.
8
The petitioner argues that he ‘‘does not claim [on appeal] . . . that
[pretrial] detainees are entitled to the opportunity to earn [risk reduction
earned credits] as they are being held prior to sentencing.’’ Rather, he argues
that his claim is that ‘‘an inmate who (1) was sentenced when [risk reduction
earned credits] came into existence, and (2) had had a number of days
applied to his sentence as presentence confinement credit, was serving
his subsequently imposed sentence and was entitled to have those days
considered for the award of retroactive [risk reduction earned credits].’’
There are two flaws with this argument. First, as previously discussed in
footnote 5 of this opinion, this is not the claim that the petitioner asserted
in his second petition. The claim in his second petition, the one properly
considered by the habeas court, was whether pretrial detainees are entitled
to earn risk reduction earned credits. Second, we conclude that the petition-
er’s characterization of his claim presents a distinction without a difference.
It is not disputed that the only way in which individuals can obtain risk
reduction earned credits is if they earn them. It logically follows that when
considering the number of risk reduction earned credits an individual is
entitled to be retroactively awarded, the respondent must decide whether
the individual earned them during the period of time in question. Thus, the
petitioner’s argument on appeal that the respondent must consider the time
in which he spent as a pretrial detainee when calculating his risk reduction
earned credits is implicitly an argument that pretrial detainees are entitled
to earn risk reduction earned credits.
9
We are mindful that ‘‘[General Statutes] § 18-100d renders the good time
statutes inapplicable to persons sentenced to a term of imprisonment for
crimes committed on or after October 1, 1994.’’ Velez v. Commissioner of
Correction, 250 Conn. 536, 552, 738 A.2d 604 (1999). Because the petitioner’s
crimes were committed after October 1, 1994, this law is not relevant to
the present appeal.