DocketNumber: SC 19928
Citation Numbers: 196 A.3d 789, 330 Conn. 462
Judges: Palmer
Filed Date: 12/4/2018
Status: Precedential
Modified Date: 6/24/2022
**464The petitioner, Randy Breton, who currently is serving sentences for certain violent crimes he committed in 2011, brought this habeas action against the respondent, the Commissioner of Correction, claiming that a 2013 amendment to General Statutes (Rev. to 2013) § 54-125a; see Public Acts 2013, No. 13-3, § 59 (P.A. 13-3), codified at General Statutes (Supp. 2014) § 54-125a;
The following undisputed facts and procedural history are relevant to our resolution of the petitioner's appeal. On October 27, 2011, the petitioner violated a restraining order, to which he later pleaded guilty. On December 29, 2011, the petitioner committed several additional offenses for which he was charged with two counts of assault in the first degree, one count of assault in the second degree, and one count of larceny in the third degree. On March 21, 2013, pursuant to a plea agreement, the petitioner entered a plea of nolo contendere to the assault and larceny charges, and, on August 22, 2013, he was sentenced to a total effective term of imprisonment of twenty years followed by five years of special parole. The petitioner also received a sentence of thirty months imprisonment for the restraining order violation, which term was imposed to run concurrently with the first sentence.
In 2011, before the petitioner committed his offenses, the legislature passed No. 11-51 of the 2011 Public Acts (P.A. 11-51), § 22, codified at General Statutes § 18-98e. Section 18-98e (a) provides that certain inmates who **467were convicted of crimes committed on or after October 1, 1994, "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 ...." In addition, in 2011, General Statutes (Rev. to 2011) § 54-125a (b) provided that a person convicted of a violent crime was ineligible for parole until such person served at least 85 percent of the definite sentence imposed. The legislature amended that provision in 2011 to allow the application of "any risk reduction credit earned under the provisions of [ § 18-98e ]"; P.A. 11-51, § 25; to accelerate the date on which a violent offender would become eligible for parole. Accordingly, when the petitioner *793committed the offenses for which he is imprisoned, earned risk reduction credit was to be applied by the respondent both to reduce the length of a violent offender's sentence and to advance his or her initial parole eligibility date. See Perez v. Commissioner of Correction ,
In 2013, after the petitioner was sentenced, the legislature again amended § 54-125a (b) (2), this time by removing the phrase "less any risk reduction credit earned under the provisions of [§] 18-98e." P.A. 13-3, § 59. Thus, under the 2013 amendment, violent offenders are still eligible to earn risk reduction credit to reduce their definite sentence, but that credit is no longer applied to advance their initial parole eligibility date. Consequently, when P.A. 13-3, § 59, became effective on July 1, 2013, inmates convicted of a violent offense thereafter were required to complete 85 percent of their definite sentence before they became eligible **468for parole. See Perez v. Commissioner of Correction , supra,
In 2016, the petitioner filed an amended petition for a writ of habeas corpus, claiming that the 2013 amendment to § 54-125a (b) (2), as applied to him, violates the ex post facto clause because that amendment retroactively increased the amount of time he would be required to serve before becoming eligible for parole. At his habeas trial, the petitioner presented the testimony of Michelle Deveau, a records specialist with the Department of Correction (department), who testified that the petitioner at that time was eligible for risk reduction credit and that, as of the date of the habeas trial, had earned 158 such credits, the maximum number he could have earned at that point in his sentence. Deveau further testified that, although discretionary, risk reduction credit is awarded by the respondent routinely and that, each month, the department's computer system automatically posts it to the timesheets of eligible inmates.
The petitioner also adduced testimony from Heidi Palliardi, a supervisor with the department's Sentence Calculation and Interstate Management Unit, concerning the risk reduction credit program. She testified that risk reduction credit is governed by department administrative directive 4.2A and that, to remain eligible to receive such credit, inmates must follow all institutional rules, remain free of any disciplinary reports and comply with their individual "offender accountability plan," which is provided to every inmate after sentencing. Palliardi further explained that risk reduction credit is subject to forfeiture, after notice and a hearing, for failure to comply with any of the aforementioned program requirements. Finally, the petitioner presented the testimony of Richard Sparaco, the executive director of the Board of Pardons and Paroles (board), who explained that, under the 2013 amendment to § 54-125a **469(b) (2), "the [d]epartment ... no longer could apply risk reduction earned credits to [advance] the parole eligibility date for anyone [who] the board has designated ... a violent offender." Sparaco also stated that parole is granted at the initial parole hearing in approximately 55 percent of all cases.
Following the habeas trial, the court issued a memorandum of decision and dismissed the petition. The court concluded that the petitioner had failed to establish an ex post facto violation because, inter alia, the risk that the petitioner would suffer increased punishment as a result of *794the 2013 amendment to § 54-125a (b) (2) was entirely speculative due to the fact that the award of risk reduction credit is discretionary and the fact that such credit may be revoked by the respondent for cause at any time. We agree with the petitioner that, contrary to the determination of the habeas court, the prohibition of the ex post facto clause bars the retroactive application of the 2013 amendment to § 54-125a (b) (2) to him.
Furthermore, "[t]he United States Supreme Court has recognized that a law need not impair a vested right to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the [c]ontracts or [d]ue [p]rocess [c]lauses, which solely protect [preexisting] entitlements.... The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the [e]x [p]ost [f]acto [c]lause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [c]lause if it is both retrospective and more onerous than the law in effect on the date of the offense.... Weaver v. Graham ,
"The United States Supreme Court also has recognized that [t]he presence of discretion does not displace the protections of the [e]x [p]ost [f]acto [c]lause. Garner v. Jones ,
In addition, it is firmly established that statutes governing parole eligibility are part of the "law annexed to the crime" for ex post facto clause purposes. Calder v. Bull , supra, 3 U.S. (3 Dall.) at 390 ; see, e.g., Warden v. Marrero ,
Thus, in Weaver v. Graham , supra,
Since Weaver , federal courts uniformly have held that "it is unconstitutional to apply a statute that alters, to the defendant's disadvantage, the terms under which eligibility for [parole] is calculated, if that statute was enacted after the date of the underlying offense ...." United States v. Paskow ,
"In Greenfield , a defendant who was incarcerated following revocation of his parole challenged a statute that prohibited any state parole violator from receiving [good conduct] credits during his first six months in custody following revocation.... At the time [that] the defendant committed his underlying crime, all prisoners, including parole violators, could accumulate [good conduct] credits from the beginning of their incarceration. The new statute ... was adopted after the defendant committed his underlying crime, but before he committed the offense for which his parole was revoked. The [three judge panel in Greenfield ] held that application of the statute to the defendant violated the ex post facto clause, because the statute prevented him from being released as early as he might have been had he been permitted to amass [good conduct] credits under the statute in effect at the time he committed the underlying crime. Thus, according to the [three judge panel] and according to the Supreme Court, the statute operated retrospectively and to his *797detriment. As the [three judge panel] stated, the effect of the statute was to [extend] his sentence and [to] increas[e] his punishment beyond the amount he expected or had notice of when he committed his underlying crime. [ Greenfield v. Scafati , supra, 277 F. Supp. at] 645....
"[Federal] [c]ircuit courts that have considered the ex post facto issue have, without exception, followed Greenfield , holding that the ex post facto clause is violated when a defendant's eligibility for release is adversely affected under a statute that was not in effect at the time of the defendant's underlying crime but was adopted before the defendant committed the act for **475which his parole was revoked." (Citation omitted; emphasis omitted; internal quotation marks omitted.) United States v. Paskow , supra,
With the foregoing principles in mind, we must determine whether the 2013 amendment to § 54-125a (b) (2) creates a sufficient risk that the petitioner will be incarcerated longer than he would have been under the 2011 amendment to the statute. As we previously discussed, the habeas court concluded that that risk was too speculative and attenuated to warrant relief under the ex post facto clause because the granting of risk reduction credit is discretionary and the respondent can revoke those credits at any time for cause. In considering whether the habeas court was correct in its analysis, it is instructive to examine cases in which changes to parole eligibility rules were determined not to have violated the ex post facto clause on the ground that the risk of increased punishment was deemed too **476speculative and attenuated. The seminal case, from which the terms "speculative" and "attenuated" derive for the purpose of evaluating the scope of the ex post facto clause, is California Dept. of Corrections v. Morales , supra,
As in every ex post facto case, the controlling inquiry for the court was whether the statute's retroactive application created a sufficient risk of increasing the measure of punishment attached to the petitioner's crime.
Recently, in Perez v. Commissioner of Correction , supra,
In the present case, it cannot reasonably be argued that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2) does not "alter the calculation of when [the petitioner] is eligible for parole ...."
In support of his contrary contention, the respondent relies on several cases that have no material bearing on the present case because they were all brought under the due process clause. For example, the respondent cites Baker v. Commissioner of Correction ,
In Baker , however, we took pains to distinguish the due process claim at issue in that case from an ex post facto claim-a claim that was not made in that case-stating in relevant part: "In Johnson v. Commissioner of Correction , supra,
The respondent next claims, consistent with the determination of the habeas court, that any risk of increased punishment arising out the retroactive application of the 2013 amendment to the petitioner is too speculative and attenuated to constitute an ex post facto violation because the award of risk reduction credit is discretionary and any such credit that may be awarded is subject to revocation by the respondent for cause. As we previously explained, however, the undisputed testimony adduced at the petitioner's habeas trial belies this contention. That evidence established that, although discretionary and subject to revocation for cause, risk reduction credits are awarded by the respondent routinely and are revoked only for acts of institutional misconduct; moreover, the petitioner has earned all such credits for which he was eligible, and, to date, he has not forfeited any of those credits.
Notably, the respondent has failed to identify a single case in which a court has concluded that eliminating good time credits from the calculation of an offender's **481initial parole eligibility dates did not violate the ex post facto clause merely because the credits at issue were discretionary rather than mandatory, and our independent research has not revealed any such case. This is not surprising for the reasons set forth by the Maryland Court of Appeals in Secretary, Dept. of Public Safety & Correctional Services v. Demby ,
"[The court does] not find the increased punishment caused by the amendments ... to be 'speculative and attenuated.' ... [T]he case from which that language originates, Morales ... is factually distinguishable from the present case. In Morales , the statutory change affected the frequency of parole eligibility hearings for inmates by giving parole officials the ability, after meeting several procedural safeguards, to postpone an inmate's yearly evaluation by up to three years when potential safety issues, among other things, [are] a concern, and parole officials [believe] the inmate would not be eligible for parole during the extended period regardless. [Morales'] ex post facto claims were rejected as the chances of an increased punishment were 'speculative and attenuated.' [In this case, the] respondents will clearly serve a longer period of time as a result of the amendments, and the determination of that increase is far easier than in Morales .
**482"Moreover ... the language included in the regulation providing that, 'this section may not be interpreted ... to mean that an inmate who is eligible to receive the credits described in this section has a right to these credits or ... will continue *801to receive these credits in the future,' does not provide sufficient notice to inmates for the purposes of the ex post facto prohibition.... That disclaimer alone does not exempt the regulation from ex post facto scrutiny." (Citation omitted; footnote omitted.)
The only case cited by the respondent that even arguably may be read to provide a measure of support for his position is Abed v. Armstrong ,
"In addition, and again unlike Lynce and Weaver , the [d]irective was not applied retroactively to [the petitioner]. No good time credit earned by [the petitioner] prior to the [d]irective was forfeited, and [the petitioner]
**483was not classified as a [gang member] until after the [d]irective was in effect. By its terms, the [d]irective concerned ongoing and future-not past-conduct."
The present case is distinguishable from Abed in two crucial respects. First, it is undisputed that the 2013 amendment is being applied to the petitioner retroactively, not punishing him for acts committed while he was in prison, as was the case in Abed . Second, in contrast to the petitioner in Abed , the petitioner in the present case is not claiming a right to earn risk reduction credits. Indeed, he acknowledges that the award of such credits is discretionary with the respondent and, further, that, ultimately, his opportunity to continue to earn them is a matter of legislative grace. He claims only that the risk reduction credits that he does accumulate over the years-however few or many that may be-must be applied to reduce his definite sentence and to advance his initial parole eligibility date in accordance with the law in existence at the time of his *802offense, which law did not give the respondent discretion to refuse to include those credits in calculating his initial parole eligibility date. In other words, the **484petitioner is claiming a right only to the more beneficial formula for calculating his parole eligibility date, not to the credits on which that formula is predicated.
Our conclusion that the 2013 amendment to § 54-125a (b) (2), as applied to the petitioner, violates the ex post facto clause is reinforced by the legislative history surrounding the enactment. As the habeas court noted, many legislators who supported the 2013 amendment did so out of concern that the prior version of § 54-125a was too lenient, at least with respect to violent offenders. Those legislators wanted to eliminate risk reduction credit from the calculation of the initial parole eligibility date for violent offenders to ensure that they could not be paroled prior to completing 85 percent of their definite sentences. This legislative purpose bears consideration in the present case for the same reason that the court in Lynce v. Mathis , supra,
It is true, of course, that only a relatively small percentage of inmates-namely, those inmates who, like the petitioner, are incarcerated for committing a violent crime between 2011 and 2013-will be affected by our holding today. Moreover, the only relief to which those inmates are entitled is parole consideration prior to completion of 85 percent of their sentence; whether to grant parole at that time is a decision that remains solely within the broad discretion of the board. But **486the ex post facto clause safeguards the right of those inmates to such consideration regardless of whether they are granted parole at that initial hearing. Accordingly, the petitioner is entitled to the relief he seeks.
The judgment is reversed and the case is remanded with direction to render judgment for the petitioner.
In this opinion the other justices concurred.
General Statutes (Supp. 2014) § 54-125a provides in relevant part: "(b) (1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: (A) Capital felony, as provided under the provisions of section 53a-54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a-54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a-54c, (D) arson murder, as provided in section 53a-54d, (E) murder, as provided in section 53a-54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a-70a. (2) A person convicted of (A) a violation of section 53a-100aa or 53a-102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, 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 percent of the definite sentence imposed...."
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, except a person sentenced for a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40, 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 activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional 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...."
Article one, § 10, of the United States constitution provides in relevant. part: "No State shall ... pass any ... ex post facto Law ...."
The petitioner, on the granting of certification, 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 § 65-2.
We note, preliminarily, that the habeas court also rejected the petitioner's ex post facto claim because, despite the plain language of the 2011 amendment to General Statutes (Rev. to 2011) § 54-125a (b) (2); see P.A. 11-51, § 25; that provision did not afford violent offenders the right to apply their risk reduction credits to obtain parole consideration prior to serving 85 percent of their sentences, and because, in order to grant relief to the petitioner, the court would be required to "enmesh itself" impermissibly in "prison administration matters ...." Both of these reasons are devoid of merit. With respect to the court's first reason, the 2011 amendment to General Statutes (Rev. to 2011) § 54a-125a (b) (2) clearly treated earned risk reduction credit as an exception to the requirement that a violent offender must serve 85 percent of his or her sentence before becoming eligible for parole consideration. See P.A. 11-51, § 25, codified at General Statutes (Supp. 2012) § 54-125a (b) (2) (person convicted of violent crime is not eligible for parole "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 [§ ] 18-98e " [emphasis added] ). Indeed, we recently made precisely this point in Perez v. Commissioner of Correction , supra,
Other courts similarly have concluded that a statute that disqualified an inmate from earning good time credits on the basis of his or her membership in a prison gang did not violate the ex post facto clause because the statute did not increase the punishment for the original offense but, rather, constituted punishment for conduct occurring after the inmate entered prison. See Nevarez v. Barnes ,
We note that the respondent also argues that there is no ex post facto violation because the petitioner was advised by his attorney prior to entering his plea that he was required to complete 85 percent of his sentence before becoming eligible for parole. We reject this claim. In applying the ex post facto clause, our concern is not with what the petitioner may have been told at the time of his plea or sentencing but, rather, with the law applicable at the time he committed his offenses. As the Appellate Court has stated, "for a law to violate the prohibition [of the ex post facto clause], it must feature some change from the terms of a law in existence at the time of the criminal act. That feature is entirely sensible, as a core purpose in prohibiting ex post facto laws is to ensure fair notice to a person of the consequences of criminal behavior. As ... the United States Supreme Court [has explained], laws that impose a greater punishment after the commission of a crime than annexed to the crime at the time of its commission run afoul of the ex post facto prohibition because such laws implicate the central concerns of the ex post facto clause: the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated . Weaver v. Graham , [supra,