James v. Commissioner of Correction

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LATONE JAMES v. COMMISSIONER
OF CORRECTION
(SC 19787)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa, Robinson and Vertefeuille, Js.*
Syllabus
Pursuant to statute (§ 18-98d [a] [1]), an offender may receive credit for
presentence confinement, except that ‘‘(A) each day of presentence
confinement shall be counted only once for the purpose of reducing all
sentences imposed after such presentence confinement; and (B) [such
credit] shall only apply to a person for whom the existence of a mittimus,
an inability to obtain bail or the denial of bail is the sole reason for
such person’s presentence confinement . . . .’’
The petitioner, who had been convicted of felony murder and robbery in
the first degree, appealed from the denial of his amended petition for
a writ of habeas corpus, asserting, inter alia, that the respondent, the
Commissioner of Correction, had improperly calculated the applicable
presentence confinement credit. The petitioner, who had been held in
lieu of bond on multiple charges following his arrest, was tried and
convicted of robbery. The trial court declared a mistrial on the remaining
charges, including the felony murder charge, and sentenced the peti-
tioner to twenty years of imprisonment on the robbery conviction. The
respondent subsequently credited the robbery sentence for the petition-
er’s presentence confinement in accordance with § 18-98d (a) (1). On
retrial of the felony murder charge, the petitioner filed a motion to
dismiss that charge on the ground that the prosecution violated the
constitutional protection against double jeopardy. The trial court denied
that motion, the petitioner appealed, and this court upheld the denial
of that motion. Thereafter, the petitioner was convicted of felony murder
and sentenced to fifty years imprisonment, which was to be served
concurrently with the robbery sentence. The respondent declined to
apply any presentence confinement credit to the felony murder sentence
under § 18-98d (a) (1), concluding that any credit for confinement before
the imposition of the robbery sentence had already been applied and
that any confinement thereafter was for the purpose of serving that
existing sentence. The petitioner subsequently filed a habeas petition
challenging the respondent’s method of calculation, which the habeas
court denied. From the habeas court’s judgment, the petitioner, on the
granting of certification, appealed. Held that the respondent’s calculation
of the presentence confinement credit applicable to the petitioner’s
felony murder sentence was incorrect: § 18-98d (a) (1) (A) required the
transfer of the petitioner’s presentence confinement credit from the
earlier imposed robbery sentence to the later imposed, concurrent felony
murder sentence when the two sentences merged into one effective
sentence under one docket number, in light of the ambiguity created
by the relationship of § 18-98d to other statutes, the legislative history
surrounding its enactment, as well as that of its predecessor statutes, and
the legislature’s perceived intent; moreover, the petitioner was entitled
to presentence confinement credit for the period of time he was pursuing
his double jeopardy claim because the denial of such a credit under
§ 18-98d (a) (1) (B) would have impermissibly burdened the assertion
of a constitutional right, and, accordingly, to avoid invalidation of § 18-
98d, this court adopted, by way of judicial gloss, a requirement that a
person serving a term of imprisonment who exercises his constitutional
right to pursue a double jeopardy claim on a charge for which the
sentence may run concurrently shall be entitled, under § 18-98d, to a
corresponding reduction in any sentence subsequently imposed.
(Two justices dissenting in one opinion)
Argued March 30—officially released October 17, 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, Oliver, J., judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed. Reversed in part;
judgment directed; further proceedings.
Judie L. Marshall, with whom, on the brief, was
Walter C. Bansley IV, for the appellant (petitioner).
Madeline A. Melchionne, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Terrence M. O’Neill, assistant attorney gen-
eral, for the appellee (respondent).
Opinion
EVELEIGH, J. The sole issue in this appeal is whether
the calculation of presentence confinement credit
should be adjusted for concurrent sentences imposed
under one docket number but on different dates. The
petitioner, Latone James, appeals from the denial of his
amended petition for a writ of habeas corpus, which
alleged, inter alia, that the calculation of his presentence
confinement credit was incorrect. The respondent, the
Commissioner of Correction, claims that it calculated
the petitioner’s presentence confinement credit pursu-
ant to General Statutes § 18-98d (a) (1)1 and the frame-
work provided by this court in Harris v. Commissioner
of Correction, 271 Conn. 808, 860 A.2d 715 (2004). We
agree with the petitioner and, accordingly, reverse the
judgment of the habeas court in part.
The record discloses the following facts and proce-
dural history. The petitioner was arrested and charged,
under Docket No. CR-95-0235106,2 with one count of
robbery in the first degree in violation of General Stat-
utes (Rev. to 1995) § 53a-134 (a) (2), two counts of
assault in the first degree in violation of General Stat-
utes (Rev. to 1995) § 53a-59, and one count of felony
murder in violation of General Statutes (Rev. to 1995)
§ 53a-54c. On March 3, 1995, the petitioner was held in
lieu of bond on these charges. Following trial, the jury
returned a verdict of guilty on the charge of robbery
in the first degree and the trial court declared a mistrial
as to the remaining charges. On December 13, 1996,
the petitioner was sentenced to twenty years of impris-
onment for robbery in the first degree. From the date
the trial court imposed bond to the date of sentencing
on the robbery conviction, the petitioner was held in
the respondent’s custody for a total of 651 days. The
respondent, accordingly, credited 651 days of presen-
tence confinement to the petitioner’s robbery sentence.
The petitioner was retried before a jury on the charge
of felony murder under Docket No. CR-95-0235106. See
footnote 2 of this opinion. The petitioner had originally
moved to dismiss this charge on the ground that retrial
violated the prohibition against double jeopardy con-
tained within the fifth amendment to the United States
constitution.3 See footnote 13 of this opinion. The trial
court denied that motion, the petitioner appealed, and
this court affirmed. State v. James, 247 Conn. 662, 673–
74, 725 A.2d 316 (1999).
On August 5, 1999, while the petitioner was impris-
oned for robbery, the jury returned a verdict of guilty
on the felony murder charge. On August 13, 1999, the
petitioner was sentenced to fifty years of imprisonment
for felony murder, to run concurrently with his prior
robbery sentence. The petitioner spent 973 days in the
respondent’s custody from the date he was sentenced
for robbery to the date sentenced for felony murder. In
total, the petitioner spent 1624 days in the respondent’s
custody from the date of he was held in lieu of bond
on Docket No. CR95-0235106 to the date he was sen-
tenced for felony murder.
The respondent did not apply any presentence con-
finement credit to the petitioner’s felony murder sen-
tence, except for one day of credit pursuant to § 18-
98d (a) (2) (B).4 The petitioner filed a petition for writ of
habeas corpus challenging, inter alia, the respondent’s
method of calculation. Specifically, the petitioner
claimed that the 651 days of credit that had been applied
to the robbery sentence should be transferred to the
felony murder sentence. The petitioner further claimed
that the 973 days he spent imprisoned for the robbery
sentence should be credited to his felony murder sen-
tence. After hearing testimony, the habeas court denied
the petition. This appeal followed.5
The respondent asserts that the 651 days of presen-
tence confinement credit are not applicable to the fel-
ony murder sentence. The respondent relies on the
language of § 18-98d (a) (1) and this court’s decision in
Harris, wherein this court concluded that presentence
confinement credit can be applied only once and cannot
be used to reduce a concurrent sentence that is imposed
at a later date. Harris v. Commissioner of Correction,
supra, 271 Conn. 822–23. The respondent also claims
that the 973 days the petitioner spent incarcerated dur-
ing the retrial on the felony murder charge could not
be claimed as presentence confinement credit because
§ 18-98d (a) (1) (B) limits application of the credit to
those people whose sole reason for being confined is
the ‘‘existence of a mittimus, an inability to obtain bail
or the denial of bail . . . .’’ Because the petitioner was
confined not due to any of those reasons, but because
he was serving a sentence for robbery, the respondent
claims that § 18-98d (a) (1) does not apply.
We begin our analysis with a discussion of the appro-
priate standard of review. ‘‘Although a habeas court’s
findings of fact are reviewed under a clearly erroneous
standard of review, questions of law are subject to ple-
nary review.’’ Tyson v. Commissioner of Correction,
261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied,
538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003);
see also Kaddah v. Commissioner of Correction, 324
Conn. 548, 559, 153 A.3d 1233 (2017). The parties do
not dispute any of the material facts, and we are asked
solely to determine the proper construction of § 18-98d
(a) (1).
Therefore, this case presents a question of statutory
construction, an issue of law over which we exercise
plenary review. Cales v. Office of Victim Services, 319
Conn. 697, 701, 127 A.3d 154 (2015). In determining the
meaning of a statute, we look first to the text of the
statute and its relationship to other statutes. General
Statutes § 1-2z. If the text of the statute is not plain and
unambiguous, we may consider extratextual sources of
information such as the statute’s ‘‘legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and [common-
law] principles governing the same general subject mat-
ter . . . .’’ (Internal quotation marks omitted.) Doe v.
Boy Scouts of America Corp., 323 Conn. 303, 332, 147
A.3d 104 (2016). Our fundamental objective is to ascer-
tain the legislature’s intent. Id.
We begin by examining the statutory text. Section
18-98d governs the crediting of presentence confine-
ment time to prisoners. Section 18-98d (a) (1) provides
in relevant part: ‘‘[a]ny 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; pro-
vided (A) each day of presentence confinement shall
be counted only once for the purpose of reducing all
sentences imposed after such presentence confine-
ment; and (B) the provisions of this section shall only
apply to a person for whom the existence of a mittimus,
an inability to obtain bail or the denial of bail is the
sole reason for such person’s presentence confinement,
except that if a person is serving a term of imprisonment
at the same time such person is in presentence confine-
ment on another charge and the conviction for such
imprisonment is reversed on appeal, such person shall
be entitled, in any sentence subsequently imposed, to
a reduction based on such presentence confinement in
accordance with the provisions of this section. . . .’’
Although the petitioner is asserting a general chal-
lenge to his presentence confinement credit, the chal-
lenge can be split into two separate claims. The first
claim is that the 651 days of presentence confinement
credit originally applied to the robbery sentence should
be transferred to the felony murder sentence. The sec-
ond claim is that the 973 days he spent in prison serving
his sentence for robbery should be converted to presen-
tence confinement credit and applied to his felony mur-
der sentence. We address each of these claims in turn.
Whether the 651 days the petitioner was confined
while awaiting his first trial, and which was applied to
his robbery sentence, can also be applied to the felony
murder sentence implicates § 18-98d (a) (1) (A). Section
18-98d (a) (1) (A) provides that ‘‘each day of presen-
tence confinement shall be counted only once for the
purpose of reducing all sentences imposed after such
presentence confinement . . . .’’ (Emphasis added.)
The plain language of this section, therefore, appears
to prohibit the application of the 651 days to the peti-
tioner’s sentence for felony murder because it has
already been counted for the purpose of reducing his
robbery sentence.
The petitioner asserts that if the mistrial had not
occurred, ‘‘all sentences’’ for the crimes of robbery and
felony murder would have been imposed at once and
the 651 days would have been credited toward the sen-
tences for both robbery and felony murder. Because of
the mistrial, however, only the robbery sentence was
imposed after the petitioner’s initial trial, and, by the
time he was sentenced for felony murder, the 651 days
had already been counted once. The text of § 18-98d
does not provide a definition of ‘‘all sentences
imposed.’’ The use of the term ‘‘all’’ does, however,
seem to indicate that the legislature recognized that
multiple sentences may follow from one presentence
confinement.
We next turn to other related statutes. In the present
case, the petitioner’s sentences for robbery and felony
murder run concurrently. Therefore, General Statutes
§ 53a-38 (b) is applicable. That statute provides in rele-
vant part that, ‘‘[w]here a person is under more than
one definite sentence, the sentences shall be calculated
as follows: (1) If the sentences run concurrently, the
terms merge in and are satisfied by discharge of the
term which has the longest term to run . . . .’’ General
Statutes § 53a-38 (b).
Construing § 18-98d in light of § 53a-38 (b) (1) creates
further ambiguity. Specifically, it is not clear if merged
concurrent sentences should be treated as one com-
plete sentence, or if the two separate sentences have
their respective credits applied and then merge. Under
the first interpretation, if the two separate sentences
are just one merged sentence, all credit accrued from
the start of confinement would be applied to the entire
merged sentence. In the present case, it would result
in applying the 651 day credit to the petitioner’s felony
murder sentence because it has the longest term to run.
Under the second interpretation, if the sentences are
two separate sentences which merge into one, then the
respondent must calculate the credit separately for each
sentence and then determine the longer of the senten-
ces, but because the credit was used for the first sen-
tence, it would not be available when calculating the
second sentence. We conclude that, because § 18-98d
(a) (1) is subject to two reasonable interpretations, it
is ambiguous. Therefore, in accordance with § 1-2z, we
turn to the relevant legislative history.
An examination of the brief legislative history of both
§ 18-98d and its predecessors, General Statutes §§ 18-
97 and 18-98, portrays a general legislative intent to
credit prisoners for time served in presentence confine-
ment. Section 18-98d was enacted in 1980 as part of the
legislature’s attempt to reform the sentencing structure,
but there is little history regarding § 18-98d specifically.
See generally Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 5, 1980 Sess., pp. 1127–1435; see also
23 S. Proc., Pt. 10, 1980 Sess., pp. 3418–32; 23 H.R. Proc.,
Pt. 14, 1980 Sess., pp. 4294–4356; 23 H.R. Proc., Pt. 24,
1980 Sess., pp. 6997–7006. A series of new legislation,
amendments, and repeals were debated, commented
on, and eventually enacted pursuant to the sentencing
reform, and § 18-98d was one statute among many. See
23 S. Proc., supra, pp. 3428–31, remarks of Senator
Salvatore C. DePiano. Section 18-98d is mentioned
briefly by Senator DePiano during the Senate Hearings
on the bill: ‘‘Under the present procedure today, if you
are charged with several crimes and they all have differ-
ent docket numbers, every day you wait for trial when
you have not made bond, means that you have gotten
two or three or four days credit for that one day that
you’ve served and we’ve eliminated that problem.’’
(Emphasis added.) Id., p. 3429. The legislature specifi-
cally placed importance on the different docket num-
bers associated with various sentences and did not want
to give credit for multiple sentences that had different
docket numbers. We find these statements are indica-
tive of the legislative intent when § 18-98d was enacted.
Sections 18-976 and 18-98,7 although not operative
in the present case, are still persuasive authority in
determining the overall intent of granting presentence
confinement credit.8 Section 18-97 addressed presen-
tence confinement credit when a prisoner was held
due to a mittimus, and § 18-98 addressed presentence
confinement credit due to a denial of bail or inability
to obtain bail. Section 18-97 was not discussed at any
time in its legislative history; see Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 2, 1967 Sess., pp.
554–55, 578–80; 12 S. Proc., Pt. 5, 1967 Sess., p. 2182;
12 H.R. Proc., Pt. 9, 1967 Sess., pp. 3869–73;9 but has
been expanded upon previously by this court in Delev-
ieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981).
In Delevieleuse, we construed § 18-97 in the petition-
er’s favor when he tried to apply presentence confine-
ment credit to multiple sentences imposed on the same
day. Id., 435–36. The plaintiff had spent 56 days in pre-
sentence confinement after being held on a mittimus
concerning seven stolen checks. Id., 435. He was sen-
tenced to seven separate sentences of six months for
each stolen check. Id. The respondent applied the fifty-
six days of presentence confinement credit once for all
sentences because there was only one docket number,
and the plaintiff argued that § 18-97 required that the
credit be applied to each sentence, regardless of the
docket number. Id., 435–36.
We referenced the enactment of § 18-98d and the
comments by Senator DePiano, specifically his refer-
ence to separate docket numbers. Id., 440–42 n.4. The
legislative intent, which we could discern from Senator
DePiano’s statements, was to move away from the sys-
tem of awarding multiple credits and to limit the amount
of presentence confinement credit granted. Id. Despite
Senator DePiano’s comments, we said that ‘‘[t]he pur-
pose of § 18-97 is to give recognition to the period of
presentence time served and to permit the prisoner, in
effect, to commence serving his sentence from the time
he was compelled to remain in custody due to a mitti-
mus.’’ (Internal quotation marks omitted.) Id., 438.
Section 18-98, unlike § 18-97, is discussed thoroughly
in the legislative hearings surrounding its enactment.
See Conn. Joint Standing Committee Hearings, Correc-
tions, 1967 Sess., p. 5; 12 S. Proc., supra, pp. 2125–26;
12 H.R. Proc., Pt. 7, 1967 Sess., pp. 3095–98. There was
overwhelming approval of the bill, as many of the sena-
tors and representatives viewed the existing system as
inherently unfair, especially to indigent prisoners. See
12 S. Proc., supra, p. 2126; 12 H.R. Proc., Pt. 7, 1967 Sess.,
pp. 3095–98. Senator George Gunther said in support
of the bill, ‘‘I was amazed in visiting our jail cells
throughout the state, that we have cases of hold overs
sitting in jail as long as a year, and then to find out that
they could be brought into court, sentenced and have
to serve an additional [five] or [ten], [fifteen] or [twenty]
days. I think this is long overdue, it is another asset in
our entire corrections program in the state of Connecti-
cut.’’ 12 S. Proc., supra, p. 2126. Representative James
J. Kennelly also observed how the bill was ‘‘a human
bill,’’ because it gave credit to prisoners who were
imprisoned for weeks or months awaiting trial. 12 H.R.
Proc., Pt. 7, 1967 Sess., p. 3096.
The intent behind § 18-98, then, was to ensure that
prisoners were given credit for time served awaiting
trial, without any desire to further penalize prisoners
who were unable to make bond or were denied bond.
There is nothing in the legislative history to indicate
that the primary purpose of the statute changed with
the enactment of § 18-98d. To the contrary, it seems
reasonable that the legislature wished to grant presen-
tence confinement credit to prisoners who were
awaiting trial in order to permit those prisoners to serve
their sentences from the time they were compelled to
remain in custody.
A review of the legislative history reveals no intent
by the legislature to treat prisoners in the petitioner’s
position differently, or somehow not to give them credit
for time spent in confinement. Specifically, nothing in
the legislative history indicates that the legislature
intended to deny prisoners credit for time they spent
confined for the sole reason that a mistrial had resulted
in sentencing on different days. Put a different way,
there is no evidence that the legislature intended to
penalize prisoners when the state’s failure to prove their
guilt beyond a reasonable doubt gives rise to a mistrial
and separates concurrent sentences. Indeed, we reject
such an interpretation because it leads to an absurd
result. See Allen v. Commissioner of Revenue Services,
324 Conn. 292, 311, 152 A.3d 488 (2016) (finding well
established proposition that ‘‘those who promulgate
statutes . . . do not intend . . . absurd consequences
or bizarre results’’ [internal quotation marks omitted]),
cert. denied, U.S. , 137 S. Ct. 2217, 198 L. Ed.
2d 659 (2017).
On the basis of the language of § 18-98d, the legisla-
tive history surrounding its enactment, and its per-
ceived intent in conjunction with the effect it has on
the present case, we conclude that the statute requires
the transfer of the petitioner’s presentence confinement
credit of 651 days to the later imposed sentence for
felony murder.
The respondent asserts that this court’s decision in
Harris v. Commissioner of Correction, supra, 271
Conn. 822–23, requires that the 651 day presentence
confinement credit not be applied to the petitioner’s
sentence for felony murder. In Harris, this court
refused to permit the transfer of presentence confine-
ment credits to a later imposed sentence that was to
run concurrently with an earlier sentence. Id., 809–10.
In that case, the petitioner, Randy Harris, was arrested
for various charges and held in presentence confine-
ment for 780 days. Id., 811–12. While in prison awaiting
sentencing on these charges, Harris was charged with
certain separate offenses. Id. His total presentence con-
finement for the later charges was 751 days, which
overlapped with the presentence confinement time
associated with the earlier charges. Id. When Harris
was sentenced on the earlier charges, the respondent
applied a presentence confinement credit of 780 days.
Id., 813. Harris subsequently received a sentence on the
later charges that was to run concurrently with his
earlier sentence. Id., 812. The respondent did not apply
any presentence confinement credit to his sentence for
the later charges because that credit had already been
used on the earlier charges and, according to the
respondent, the use of the credit was barred by the
plain language of § 18-98d (a) (1) (A). Id., 813. Each
sentence imposed was for a different incident, on a
different date, and under a different docket number.
Id., 811–13.
This court concluded that the respondent’s method
of calculating the presentence confinement credit was
correct. Id., 829. In doing so, we distinguished this
court’s earlier ruling in Payton v. Albert, 209 Conn. 23,
547 A.2d 1 (1988), overruled in part on other grounds
by Rivera v. Commissioner of Correction, 254 Conn.
214, 255 n.44, 756 A.2d 1264 (2000). Harris v. Commis-
sioner of Correction, supra, 271 Conn. 822–23. This
court distinguished the circumstances where concur-
rent sentences were imposed on the same day such as
in Payton, and the circumstances where the concurrent
sentences were imposed on different days. Id. Particu-
larly, this court observed that, when sentences are
imposed on the same date, the credit had not been
officially applied to any particular sentence and was
unused. Id., 823. The credit could then be applied to
whichever sentence will result in the longest term of
imprisonment pursuant to § 53a-38 (b). Id. We reasoned
that, where sentences are imposed on different days,
the credit has already been used on the earlier sentence
and is no longer available for the later imposed sen-
tence. Id.
In doing so, this court reasoned that ‘‘[t]he merger
process does not alter the fact that concurrent senten-
ces remain separate terms of imprisonment which the
legislature has permitted to be served at one time.’’
(Internal quotation marks omitted.) Id., 819. Therefore,
this court concluded that concurrent sentences
imposed on different days must be treated separately
for purposes of allocating presentence confinement
credit. Id., 820.
In reaching this conclusion, this court relied on sev-
eral policy reasons for the different treatment of concur-
rent sentences imposed on the same day as opposed
to concurrent sentences imposed on different days. Spe-
cifically, this court reasoned as follows: ‘‘Indeed, to the
extent that the two groups are treated differently, the
disparity is likely to have the salutary effect of encourag-
ing defendants to enter pleas with respect to other
pending charges and to disclose criminal activities for
which charges have not yet been filed so that all out-
standing matters may be resolved in a single proceed-
ing. The respondent’s methodology also may help to
conserve scarce judicial resources and reduce the
administrative burden on the state by encouraging
defendants involved in multiple proceedings to seek a
transfer of all pending actions to a single courthouse
for sentencing purposes. Sentencing judges cannot be
expected to have knowledge of every recent sentence
imposed on a defendant and, therefore, the transfer of
all pending actions to a single location would provide
the sentencing judge with a better understanding of the
defendant’s criminal history in order to determine a fair
and equitable sentence.’’ Id., 835–36.
The policy considerations that informed this court’s
decision in Harris are inapplicable to the present case.
The first reason, that it would encourage defendants
to disclose criminal matters to consolidate cases and
dispose of them in a single proceeding, does not apply
to this appeal. Here, the case would have been disposed
all on the same day if the state had not failed to sustain
its evidentiary burden, resulting in a mistrial. This fact
negates any concern regarding the consolidation of
cases. The second reason, to encourage defendants to
transfer all pending actions to a single court for sentenc-
ing, is irrelevant to the present case because the crimi-
nal trials did take place in one court but on different
dates due to the mistrial. The third reason, that it allows
a sentencing judge to have all information available to
properly sentence the defendant, is similarly irrelevant
because the sentencing court here should have had the
same procedural history available to it. This was all one
case; the robbery was the predicate to the petitioner’s
conviction for felony murder.
Harris is, therefore, distinguishable from the present
case. In Harris, the presentence confinement credit
had been accruing at the same time for two completely
separate charges that were prosecuted separately. Id.,
811–12. In the present case, however, presentence con-
finement credit was not accruing for two separate pros-
ecutions but for one prosecution for felony murder
that included the predicate lesser included offenses of
robbery and assault. If the mistrial had not occurred,
there would have been one credit applied to a total
sentence for felony murder. Therefore, we conclude
that the reasoning of Harris is inapplicable to the pres-
ent case.10
We conclude that § 18-98d requires the transfer of
credits from an earlier imposed sentence to a later one
when the two sentences merge into one effective sen-
tence under one docket number. Accordingly, we con-
clude that the respondent should have applied the 651
days of presentence confinement credit to the petition-
er’s sentence for felony murder.
The petitioner also claims that he should receive
credit for the 973 days spent while imprisoned for rob-
bery prior to being sentenced for felony murder, includ-
ing the time he was pursuing his double jeopardy
appeal. The respondent counters that § 18-98d (a) (1)
(B) precludes the petitioner from receiving credit
toward his felony murder sentence for any days after
he was sentenced for robbery. For the reasons which
follow, we agree, in part, with the petitioner.
The petitioner’s claim requires us to interpret § 18-
98d (a) (1) (B). Section § 18-98d (a) (1) (B) provides
that ‘‘the provisions of this section shall only apply to
a person for whom the existence of a mittimus, an
inability to obtain bail or the denial of bail is the sole
reason for such person’s presentence confinement,
except that if a person is serving a term of imprisonment
at the same time such person is in presentence confine-
ment on another charge and the conviction for such
imprisonment is reversed on appeal, such person shall
be entitled, in any sentence subsequently imposed, to
a reduction based on such presentence confinement in
accordance with the provisions of this section.’’ The
plain language of § 18-98d (a) (1) (B) indicates that if
a person is being held for any reason other than being
held on a mittimus, inability to obtain bail or denial
of bail, then that person cannot receive presentence
confinement credit for that period of time.
After oral argument in this court, we issued an order
directing the parties to file supplemental briefs
addressing the following issue: ‘‘Does the well estab-
lished principle that this court should try, whenever
possible, to construe statutes to avoid a constitutional
infirmity, but may not do so by rewriting the statute or
eschewing its plain language . . . lead to a different
construction of . . . § 18-98d than that advanced by
the [respondent]?’’ See Walsh v. Jodoin, 283 Conn. 187,
199, 925 A.2d 1086 (2007); see also Boyd v. Lantz, 487
F. Supp. 2d 3 (D. Conn. 2007). In his supplemental brief,
the respondent asserts that allowing the petitioner to
receive presentence confinement credit in the present
case would undermine the meaning and clear intent of
the legislature.11 In his supplemental brief, the petitioner
claims that this court should construe § 18-98d consis-
tent with Boyd v. Lantz, supra, 3, and that such a con-
struction would be consistent with the plain language
of the statute and the legislative intent.12
In the present case, the significant delay between the
petitioner’s sentencing for the robbery conviction in
1995 and his subsequent sentencing on felony murder
in 1999 was caused by his decision to challenge the
reprosecution on the ground that it violated the prohibi-
tion against double jeopardy contained within the fifth
amendment to the United States constitution. See foot-
note 3 of this opinion. ‘‘It is well established that this
court has a duty to construe statutes, whenever possi-
ble, to avoid constitutional infirmities . . . . [W]hen
called [on] to interpret a statute, we will search for an
effective and constitutional construction that reason-
ably accords with the legislature’s underlying intent.
. . . This principle directs us to search for a judicial
gloss . . . that will effect the legislature’s will in a man-
ner consistent with constitutional safeguards.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Cook, 287 Conn. 237, 245, 947 A.2d 307 (2008).
In our search for the constitutional construction of
§ 18-98d, we find the analysis of the United States Dis-
trict Court for the District of Connecticut in Boyd v.
Lantz, supra, 487 F. Supp. 2d 3, persuasive. Indeed,
as this court recognized in the petitioner’s underlying
criminal appeal; State v. James, supra, 247 Conn. 672;
the procedural history of Boyd and that in the present
case are very similar.
In Boyd, the United States District Court for the Dis-
trict of Connecticut set forth the following relevant
facts and procedural history at issue in that case. ‘‘[The
petitioner, Terrence Boyd, was] first arrested and
placed in custody on December 15, 1986. Following a
jury trial in the Connecticut Superior Court, he was
convicted of burglary, larceny, and felony murder. On
January 21, 1988, he was sentenced to forty-five years
of incarceration for felony murder, fifteen years for
burglary, and five years for larceny, with the sentences
to run concurrently. On March 6, 1990, the Connecticut
Supreme Court vacated Boyd’s felony murder convic-
tion. He remained incarcerated on the burglary and
larceny convictions. The state brought a new felony
murder charge against Boyd, which he challenged pre-
trial on double jeopardy grounds in state court. After
losing his final appeal in state court, he filed a federal
habeas petition in the [United States] District Court for
the District of Connecticut that reiterated his double
jeopardy claim. The district court denied Boyd’s peti-
tion and the Second Circuit affirmed that decision. . . .
On October 7, 1996, the [United States] Supreme Court
denied certiorari to his habeas petition.’’ (Citation omit-
ted; footnotes omitted.) Boyd v. Lantz, supra, 487 F.
Supp. 2d 5–6.
In calculating the presentence confinement credit
that Boyd was to receive for time served to reduce a
second felony murder sentence following retrial,
applying § 18-98d, the respondent excluded the period
‘‘from March 7, 1990, the day after his first felony murder
conviction was vacated, to January 3, 1997, the date
Boyd finished serving his sentence for burglary.’’ Id., 6.
Boyd challenged the respondent’s denial of credit for
the time he was serving his sentence for burglary while
pursuing his challenge to reprosecution for felony mur-
der through a state habeas petition. Id. The habeas court
denied the petition, the Appellate Court affirmed, and
this court denied certiorari. Id., 7; see also Boyd v.
Commissioner of Correction, 84 Conn. App. 22, 851
A.2d 1209 (2004), cert. denied, 271 Conn. 929, 859 A.2d
583 (2004); Boyd v. Warden, Superior Court, Judicial
District of Tolland, Docket No. CV-00-0003130-S
(November 15, 2002) (33 Conn. L. Rptr. 399).
In affirming the habeas court’s denial of Boyd’s peti-
tion, the Appellate Court relied on Steve v. Commis-
sioner of Correction, 39 Conn. App. 455, 469, 665 A.2d
168, cert. denied, 235 Conn. 929, 667 A.2d 555 (1995).
The Appellate Court reasoned that Steve required the
respondent to credit Boyd for time served while he
challenged his initial felony murder conviction but did
not require the respondent to credit Boyd for the time he
was challenging the retrial on double jeopardy grounds.
Boyd v. Commissioner of Correction, supra, 84 Conn.
App. 29. The Appellate Court concluded that Boyd’s
double jeopardy challenge was a ‘‘collateral . . .
attack after the underlying conviction was clearly
vacated and [Boyd] was no longer incarcerated on that
conviction . . . .’’ Id., 30. Therefore, the Appellate
Court concluded that, because Boyd was challenging
his reprosecution, not his former conviction, Steve and
§ 18-98d prohibited him from receiving ‘‘double credit’’
for the time served while pursuing his double jeopardy
challenge. Id., 29.
Thereafter, Boyd filed a writ of habeas corpus in
federal court claiming that the respondent violated his
due process rights by applying § 18-98d to deny him
credit toward his felony murder sentence for the time
he was incarcerated on his larceny and burglary convic-
tions, but was challenging his reprosecution for felony
murder. Boyd v. Lantz, supra, 487 F. Supp. 2d 7. Specifi-
cally, Boyd claimed that the application of § 18-98d to
him unconstitutionally burdened his right to bring a
preconviction double jeopardy challenge to his reprose-
cution. Id.
The United States District Court for the District of
Connecticut analyzed Boyd’s claim under the test estab-
lished in Joyner v. Dumpson, 712 F.2d 770 (2d Cir.
1983). The court concluded that a fundamental right
was at stake because the double jeopardy clause ‘‘pro-
tects a criminal defendant’s right to challenge a prosecu-
tion in advance of trial.’’ Boyd v. Lantz, supra, 487 F.
Supp. 2d 11. The court further reasoned that, because
the application of § 18-98d ‘‘to a defendant in Boyd’s
position will result in a substantially longer period of
incarceration should the defendant choose to exercise
his double jeopardy rights . . . the statute, as applied
in this narrow factual context, burdens such a defen-
dant’s fundamental due process right to challenge his
[reprosecution]. See United States v. Goodwin, 457 U.S.
368, 372, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (‘[t]o
punish a person because he has done what the law
plainly allows him to do is a due process violation of
the most basic [sort]’); North Carolina v. Pearce, 395
U.S. 711, 724, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)
(‘the imposition of . . . a punishment penalizing those
who choose to exercise constitutional rights would be
patently unconstitutional’ . . . ); United States v. Jack-
son, 390 U.S. 570, 583, 88 S. Ct. 1209, 20 L. Ed. 2d 138
(1968) (‘Congress cannot impose . . . a penalty in a
manner that needlessly penalizes the assertion of a con-
stitutional right. . . . A procedure need not be inher-
ently coercive in order that it be held to impose an
impermissible burden upon the assertion of a constitu-
tional right.’); Griffin v. California, 380 U.S. 609, 614,
85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (holding unconsti-
tutional, in the context of the [f]ifth [a]mendment privi-
lege against self-incrimination, ‘a penalty imposed by
courts for exercising a constitutional privilege’ because
‘[i]t cuts down on the privilege by making its assertion
costly’).’’ Boyd v. Lantz, supra, 11–12. The court also
concluded that ‘‘this burden on double jeopardy rights
is not justified by a sufficiently compelling government
interest’’ and that, ‘‘[w]hile the general validity of Con-
necticut’s interest in preventing ‘double counting’ is
undisputed, the record does not provide sufficient justi-
fication for the burden imposed on Boyd’s exercise of
this particular fundamental right. Unlike many other
fundamental constitutional rights that may be fully exer-
cised and vindicated [postconviction], the aspect of the
double jeopardy right that prohibits [reprosecution] and
allows for interlocutory appeals of the denial of that
claim is what makes this case different.’’ Id., 12–13.
On the basis of the court’s well reasoned opinion in
Boyd v. Lantz, supra, 487 F. Supp. 2d 3, we conclude
that interpreting § 18-98d so as to deny the petitioner
in the present case presentence confinement credit for
the time he was pursuing his double jeopardy appeal
would render the application of that statute to him
unconstitutional. Accordingly, to avoid invalidation of
§ 18-98d, we adopt, by way of judicial gloss, a require-
ment that if a person serving a term of imprisonment
exercises his or her constitutional right to pursue a
double jeopardy claim on a charge for which the sen-
tence may run concurrently, that person shall be enti-
tled, in any sentence subsequently imposed, to a
reduction based on such presentence confinement in
accordance with the provisions of § 18-98d. See Roth
v. Weston, 259 Conn. 202, 233, 789 A.2d 431 (2002)
(‘‘[o]rdinarily, [i]f literal construction of a statute raises
serious constitutional questions, we are obligated to
search for a construction that will accomplish the legis-
lature’s purpose without risking the statute’s invalidity’’
[internal quotation marks omitted]).
This judicial gloss is consistent with the legislative
purpose behind § 18-98d. Indeed, the plain language of
§ 18-98d demonstrates that the legislature understood
that a person’s right to pursue an appeal must be recog-
nized. Section 18-98d (a) (1) (B) also contemplates cir-
cumstances where time in prison could be converted
to presentence confinement credit. If someone is
appealing their conviction while serving their sentence
and the appeal is successful, subparagraph (B) states:
‘‘such person shall be entitled, in any sentence subse-
quently imposed, to a reduction based on such presen-
tence confinement in accordance with the provisions
of this section.’’ In enacting § 18-98d, the legislature
considered that there are circumstances where a person
would be released from his or her sentence due to
errors and that such individuals should be credited with
the time spent imprisoned. The legislature contem-
plated circumstances where periods of incarceration
pursuant to a criminal sentence could be converted to
presentence confinement credit.
Accordingly, we conclude that the petitioner is enti-
tled to presentence confinement credit from the date
he filed the motion to dismiss on ground of double
jeopardy through the date that this court affirmed the
judgment of the trial court on that motion, February
16, 1999.13 As stated previously in this opinion, the peti-
tioner is also entitled to presentence confinement credit
from the date he was held in lieu of bond on the underly-
ing charges, March 3, 1995, through the date of his
sentencing for robbery, December 13, 1996.
The judgment of the habeas court is reversed with
respect to the issue of presentence confinement credit
and the case is remanded with direction to grant the
petition for a writ of habeas corpus as to that issue
and to order the respondent to credit the petitioner’s
sentence in accordance with the preceding paragraph.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and ROBINSON, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh,
McDonald, Espinosa, Robinson and Vertefeuille. Although Justice Robinson
was not present when the case was argued before the court, he has read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision. The listing of justices reflects their
seniority status on this court as of the date of oral argument.
1
We note that, although § 18-98d has been amended since the events
underlying the petition; see, e.g., Public Acts 2001, No. 01-78; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
2
We note that, although the suffix changed at various stages during the
underlying proceedings, there was only one docket number associated with
these charges. As counsel for the respondent conceded at trial on the habeas
petition, the change in suffix is not relevant to the questions presented in
this appeal.
3
‘‘The double jeopardy clause of the fifth amendment to the United States
constitution provides: [N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb . . . . This constitutional provision
is applicable to the states through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State v. Padua, 273 Conn.
138, 172 n.39, 869 A.2d 192 (2005).
4
General Statutes § 18-98d (a) (2) (B) provides: ‘‘Any person convicted
of any offense and sentenced prior to October 1, 2001, to a term of imprison-
ment, who was confined in a correctional facility for such offense on October
1, 2001, shall be presumed to have been confined to a police station or
courthouse lockup in connection with such offense because such person
was unable to obtain bail or was denied bail and shall, unless otherwise
ordered by a court, earn a reduction of such person’s sentence in accordance
with the provisions of subdivision (1) of this subsection of one day.’’
5
The habeas court denied the petition for a writ of habeas corpus and
then granted the petition for certification to appeal pursuant to General
Statutes § 52-470 (g). The petitioner subsequently appealed from the judg-
ment of the habeas court to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
6
General Statutes § 18-97 provides: ‘‘Any person receiving a fine or a
sentence to a correctional institution or a community correctional center
for an offense committed prior to July 1, 1981, shall receive credit towards
any portion of such fine as is not remitted or any portion of such sentence
as to which execution is not suspended for any days spent in custody under
a mittimus as a result of any court proceeding for the offense or acts for
which such fine or sentence is imposed, provided he shall conform to
the rules of the institution. Upon notification from the Commissioner of
Correction, the clerk of the court shall enter such credit upon the order in
the case of a fine, and upon the mittimus in the case of a sentence and it
shall be the duty of the agency or person that held such person under such
mittimus to inform the clerk of the court of the proper amount of such
credit. In the case of a fine each credit day shall be computed at the rate
of ten dollars. In no event shall credit be allowed in excess of the fine or
sentence actually imposed.’’
7
General Statutes § 18-98 provides: ‘‘Any person who has been denied bail
or who has been unable to obtain bail and who is subsequently imprisoned
for an offense committed prior to July 1, 1981, is entitled to commutation
of his sentence by the number of days which he spent in a community
correctional center from the time he was denied or was unable to obtain
bail to the time he was so imprisoned. The Commissioner of Correction
shall, if such person has conformed to the rules of the institution, credit
such person with the number of days to which the supervising officer of
the correctional center where such person was confined while awaiting trial
certifies such person was confined between the denial of bail to him or his
inability to obtain bail and his imprisonment.’’
8
The substance of § 18-97 and 18-98, while still operative for crimes com-
mitted prior to July 1, 1981, formed the basis for § 18-98d, which applies to
crimes committed on or after July 1, 1981. See Payton v. Albert, 209 Conn.
23, 30, 547 A.2d 1 (1988), overruled in part on other grounds by Rivera v.
Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000).
9
Section 18-97 was enacted as part of a larger bill that created the bail
commissioner and current bail bond system that exists in Connecticut. The
discussion throughout the hearings involved issues with the bond system
and never mentioned § 18-97.
10
The respondent urges us to follow our line of decisions in prior cases
involving § 18-98d, including Payton and Harris. These cases are, however,
factually distinguishable from the present case and do not address the
specific problem of separate sentences imposed on different days under
one docket number for a continuing prosecution for felony murder. In each
case cited by the respondent, the charges were predicated on different events
on different dates and were specifically under different docket numbers.
See Washington v. Commissioner of Correction, 287 Conn. 792, 818–23,
950 A.2d 1220 (2008); Hunter v. Commissioner of Correction, 271 Conn.
856, 860, 860 A.2d 700 (2004); Cox v. Commissioner of Correction, 271 Conn.
844, 846, 860 A.2d 708 (2004); Harris v. Commissioner of Correction, supra,
271 Conn. 811; Payton v. Albert, supra, 209 Conn. 23. None of these cases
deals with the situation currently before this court, namely, an ongoing
prosecution under one docket number where sentences were imposed on
different dates due to a mistrial.
11
The respondent also asserts that ‘‘an important distinction between the
[petitioner in Boyd] and the petitioner here is that the [petitioner in Boyd]
actually served over two years of his forty-five year sentence for murder
before his sentence was vacated and his double jeopardy challenge was
raised.’’ The respondent does not, however, explain why this factual distinc-
tion is relevant. Indeed, the petitioner in Boyd, like the petitioner in the
present case, sought ‘‘credit for the duration of his double jeopardy chal-
lenge.’’ Boyd v. Lantz, supra, 487 F. Supp. 2d 7. Therefore, we conclude
that the fact that the petitioner in Boyd had served some of his sentence
before the opportunity arose to bring a double jeopardy challenge is irrele-
vant to whether he would receive credit for the period during his double
jeopardy challenge.
12
To the extent that the petitioner attempts to raise a constitutional chal-
lenge for the first time in his supplemental brief, because we conclude that
the petitioner is entitled to presentence confinement credit for the period
he was pursuing his double jeopardy appeal, we need not reach that issue.
13
We note that the date of the petitioner’s motion to dismiss in the underly-
ing criminal proceedings is not apparent on the face of the present record.
The length of this credit, therefore, is to be determined by the habeas court
on remand.