James E. v. Commissioner of Correction

 JAMES E. v. COMMISSIONER OF CORRECTION*
(SC 19854)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
Robinson and Vertefeuille, Js.**
Syllabus
The petitioner, who had been convicted of assault of an elderly person in
the first degree, reckless endangerment in the first degree and risk of
injury to a child, sought a writ of habeas corpus, alleging a violation
of the ex post facto clause of the federal constitution. The petitioner
committed the offenses for which he was incarcerated in 2010, and, in
2011, while his criminal case was pending, the legislature enacted a
statute (§ 18-98e) that permitted the respondent Commissioner of Cor-
rection to award risk reduction credit at the respondent’s discretion to
various classes of inmates, including the petitioner, to reduce their
sentences. The legislature simultaneously amended the statute (§ 54-
125a [b] [2]) governing parole eligibility to permit such credit to be
taken into account when determining an inmate’s parole eligibility date.
After the petitioner had been sentenced, the legislature in 2013 again
amended § 54-125a (b) (2) by repealing the language that permitted an
inmate’s parole eligibility date to be calculated on the basis of his definite
sentence as reduced by earned risk reduction credit. The petitioner
alleged that the 2013 amendment to § 54-125a (b) (2) increased the
period of time that inmates such as him would be incarcerated before
they could be released on parole. The respondent thereafter moved to
dismiss the habeas petition. In denying the motion to dismiss, the habeas
court determined that the 2013 amendment did not increase the punish-
ment imposed on the petitioner because it was identical to the provision
in place at the time the petitioner committed the offenses giving rise
to his incarceration, that the petitioner thus had failed to allege a viola-
tion of the ex post facto clause and that the court lacked subject matter
jurisdiction. The court rendered judgment dismissing the petition, from
which the petitioner, on the granting of certification, appealed, claiming
that the habeas court improperly limited its analysis to the parole eligibil-
ity provision of § 54-125a (b) (2) that was in place at the time the
petitioner committed his offenses to determine whether the 2013 amend-
ment created a genuine risk that the petitioner would be incarcerated
longer under that provision. The petitioner, relying on Lynce v. Mathis
(519 U.S. 433), asserted that the habeas court could have compared the
2013 amendment to the provision that was in place at the time of his
sentencing to determine whether the ex post facto clause was violated.
Held that the habeas court lacked subject matter jurisdiction over the
petitioner’s ex post facto claim and properly dismissed the petition; this
court concluded, for the reasons set forth in the companion case of
Perez v. Commissioner of Correction (326 Conn. 357), in which the
petitioner raised an ex post facto claim identical to the claim raised
here, and in which the petitioner was identically situated to the petitioner
here, that the date of the petitioner’s offense, rather than the date of
sentencing, was the proper point of comparison, and this court distin-
guished the circumstances in Lynce from those presented here, noting
specifically that, in contrast to the petitioner in Lynce, the petitioner
here was ineligible for any form of earned risk reduction credit at the
time of his offense.
Argued April 6—officially released July 25, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Cobb, J., granted the respon-
dent’s motion to dismiss and rendered judgment dis-
missing the petition, from which the petitioner, on the
granting of certification, appealed. Affirmed.
James E. Mortimer, with whom, on the brief, was
Michael D. Day, 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
McDONALD, J. The sole issue in this appeal1 is
whether the habeas court properly dismissed the peti-
tion for writ of habeas corpus filed by the petitioner,
James E., alleging that a 2013 amendment to General
Statutes (Rev. to 2013) § 54-125a repealing a provision
advancing certain inmates’ parole eligibility dates by
earned risk reduction credit violated the ex post facto
clause of the United States constitution. See Public
Acts 2013, No. 13-3, § 59 (P.A. 13-3). The habeas court
dismissed the petition for lack of jurisdiction, determin-
ing that because the provision at issue had been enacted
after the date of the petitioner’s offenses and the parole
eligibility provision in effect when the petitioner com-
mitted the offenses for which he is incarcerated was
identical to the challenged 2013 provision, the petitioner
suffered no increase in punishment that would consti-
tute a violation of the ex post facto clause. On appeal,
the petitioner claims that the proper comparison for
purposes of the ex post facto analysis should have been
between the provision in effect at the time of his sen-
tencing and the challenged provision thereafter
enacted, which would have reflected that he has suf-
fered an increase in punishment. For the reasons set
forth in Perez v. Commissioner of Correction, 326
Conn. 357, 374–75, 378–80, A.3d (2017), we
disagree. Accordingly, we affirm the judgment of the
habeas court.
The facts surrounding the criminal offenses giving
rise to the present habeas action are set forth in State
v. James E., 154 Conn. App. 795, 798–800, 112 A.3d 791
(2015), cert. granted, 321 Conn. 921, 138 A.3d 282 (2016),
which resulted in the petitioner’s conviction of two
counts of assault of an elderly person in the first degree
in violation of General Statutes § 53a-59a, reckless
endangerment in the first degree in violation of General
Statutes § 53a-63 (a), and risk of injury to a child in
violation of General Statutes (Rev. to 2009) § 53-21
(a) (1).
The following additional procedural and statutory
history is relevant to the present appeal. The petitioner
committed the offenses for which he is incarcerated in
2010. At that time, the relevant parole eligibility provi-
sion of General Statutes (Rev. to 2009) § 54-125a (b)
(2) provided in relevant part: ‘‘A person convicted of
. . . (B) an offense . . . where the underlying facts
and circumstances of the offense involve the use,
attempted use or threatened use of physical force
against another person shall be ineligible for parole
under subsection (a) of this section until such person
has served not less than eighty-five per cent of the
definite sentence imposed.’’
Thereafter, in July, 2011, while the petitioner’s crimi-
nal case was pending before the trial court, General
Statutes § 18-98e2 went into effect, pursuant to which
inmates were eligible to earn risk reduction credit
toward a reduction of their sentences. The respondent,
the Commissioner of Correction, was vested with dis-
cretion to award such credit and to revoke any or all
credit. The legislature simultaneously amended General
Statutes (Rev. to 2011) § 54-125a to take such credit
into account to proportionately advance an inmate’s
parole eligibility date. Public Acts 2011, No. 11-51, § 25
(P.A. 11-51). The provision applicable to the petitioner
provided in relevant part: ‘‘A person convicted of . . .
(B) an offense . . . where the underlying facts and cir-
cumstances of the offense involve the use, attempted
use or threatened use of physical force against another
person shall be ineligible for parole under subsection
(a) of this section until such person has served not
less than eighty-five per cent of the definite sentence
imposed less any risk reduction credit earned under
the provisions of section 18-98e.’’ (Emphasis added.)
General Statutes (Rev. to 2011) § 54-125a (b) (2), as
amended by P.A. 11-51, § 25.
In March, 2012, the petitioner was sentenced to a
total effective sentence of twenty years incarceration,
execution suspended after ten years, and three years
of probation. State v. James E., supra, 154 Conn. App.
800. In 2013, after the petitioner began serving his sen-
tence, the legislature repealed the language in the rele-
vant parole eligibility provision of § 54-125a (b) (2) that
required the parole eligibility date to be calculated on
the basis of the definite sentence as reduced by earned
risk reduction credit. See P.A. 13-3, § 59. As a result,
although such credit continued to be available under
§ 18-98e to reduce an inmate’s sentence, the original
sentence controlled for purposes of determining parole
eligibility, unaffected by such credit.
Subsequently, the petitioner commenced the present
habeas action, claiming that the 2013 amendment to
the parole eligibility provision violated the ex post facto
clause of the United States constitution because elimi-
nating application of earned risk reduction credit to the
parole eligibility date increased the period of time that
inmates like him would be incarcerated before they
could be released on parole. The respondent moved to
dismiss the habeas petition for lack of subject matter
jurisdiction.
After a hearing, the habeas court granted the respon-
dent’s motion to dismiss on the ground that the peti-
tioner had failed to allege a violation of the ex post
facto clause, and, therefore, the court lacked subject
matter jurisdiction. Relying on this court’s analysis in
Johnson v. Commissioner of Correction, 258 Conn. 804,
786 A.2d 1091 (2002), the court determined that the
2013 parole eligibility provision did not increase the
punishment imposed on the petitioner because it was
identical to the provision that was in place at the time
that the petitioner committed the offenses giving rise
to his incarceration. This appeal followed.
The petitioner claims that the habeas court improp-
erly limited its analysis to the parole eligibility provision
that was in place at the time that the petitioner commit-
ted the offenses to determine whether the challenged
provision created a genuine risk that the petitioner
would be incarcerated longer under the latter. The peti-
tioner, relying on Lynce v. Mathis, 519 U.S. 433, 117 S.
Ct. 891, 137 L. Ed. 2d 63 (1997), asserts that the habeas
court also may compare the provision in place at the
time of his sentencing to the challenged provision to
determine whether the ex post facto clause has been
violated.
The ex post facto claim raised by the petitioner in
the present case is identical to one of the claims raised
in Perez v. Commissioner of Correction, supra, 326
Conn. 357, which we also have decided today. The peti-
tioner in the present case and the petitioner in Perez
are identically situated. Both committed their offenses
prior to the enactment of the 2011 amendment permit-
ting earned risk reduction credit to be applied to the
calculation of parole eligibility and were sentenced
prior to July 1, 2013, when the legislature repealed that
provision. In Perez v. Commissioner of Correction,
supra, 374–75, 378–80, we concluded that the habeas
court lacked subject matter jurisdiction over the ex
post facto claim because the challenged 2013 provision
was identical to the provision in place when that peti-
tioner committed his offense, and relied on Johnson v.
Commissioner of Correction, supra, 258 Conn. 817, as
deeming the date of the offense the proper point of
comparison. See id. (The ex post facto clause ‘‘forbids
the imposition of punishment more severe than the
punishment assigned by law when the act to be pun-
ished occurred. Critical to relief under the [e]x [p]ost
[f]acto [c]lause is not an individual’s right to less punish-
ment, but the lack of fair notice and governmental
restraint when the legislature increases punishment
beyond what was prescribed when the crime was con-
summated.’’ [Internal quotation marks omitted.]). We
distinguished the circumstances presented in Perez
from those in Lynce v. Mathis, supra, 519 U.S. 448–49,
in which the United States Supreme Court concluded
that the habeas court had jurisdiction to consider an
ex post facto claim that the challenged statute increased
the petitioner’s punishment from that imposed pursuant
to the statute in effect on the date of his sentencing.
Although the petitioner in Lynce raised a claim based
on the statute in effect at sentencing, the court held
that jurisdiction existed based on a comparison of the
challenged statute and the statute in effect at the time
of the offense, which the court determined was essen-
tially the same as the statute in effect at the time of
sentencing. The same fact that made Lynce distinguish-
able from Perez is also found in the present case,
namely, that, in contrast to the ongoing good time credit
scheme in Lynce, the petitioner in the present case was
ineligible for any form of earned risk reduction credit
at the time of his offense. Therefore, for the reasons
set forth in Perez, we conclude that the habeas court
lacked subject matter jurisdiction over the petitioner’s
ex post facto claim in the present case.
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
General Statutes § 54-86e.
** 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 Justices Palmer
and Espinosa were not present when the case was argued before the court,
they have read the briefs and appendices, and listened to a recording of the
oral argument prior to participating in this decision.
1
The habeas court granted the petitioner’s petition for certification to
appeal pursuant to General Statutes § 52-470 (g). The petitioner subsequently
appealed from the judgment 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.
2
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 commit-
ted 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 plan, for participation in eligible programs and activi-
ties, and for good conduct and obedience to institutional rules as designated
by the commissioner, provided (1) good conduct and obedience to institu-
tional rules alone shall not entitle an inmate to such credit, and (2) the
commissioner or the commissioner’s designee may, in his or her discretion,
cause the loss of all or any portion of such earned risk reduction credit
for any act of misconduct or insubordination or refusal to conform to
recommended programs or activities or institutional rules occurring at any
time during the service of the sentence or for other good cause. If an inmate
has not earned sufficient risk reduction credit at the time the commissioner
or the commissioner’s designee orders the loss of all or a portion of earned
credit, such loss shall be deducted from any credit earned by such inmate
in the future. . . .
‘‘(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. . . .’’
We note that § 18-98e was amended in 2015; see Public Acts 2015, No.
15-216, § 9; that amendment, however, is not relevant to this appeal and we
refer to the current revision of the statute.