DocketNumber： AC 24485
Judges： Schaller
Filed Date： 8/2/2005
Status： Precedential
Modified Date： 11/3/2024
Opinion
The petitioner, Darryl Whitaker, appeals from the judgment of the habeas court granting him partial relief on his claim that the respondent, the commissioner of correction, miscalculated various credits on his criminal sentence. On appeal, the petitioner’s numerous statutory and constitutional claims
The following facts and procedural history are relevant to our discussion. The petitioner, acting pro se, commenced the present action. The petitioner subsequently obtained counsel, and the operative petition, captioned “Corrected Substitute Amended Petition,” was filed on February 5, 2003. The parties agreed to forgo a trial, as the material issues of fact were not in dispute.
The petitioner was the defendant in criminal docket number 29795 in the judicial district of Fairfield at Bridgeport (docket 1) for offenses that occurred on November 9, 1982. The petitioner was held in presentence confinement from November 10 through 12,1982, after which he posted bond and was released from the respondent’s custody. The petitioner also was the defendant in criminal docket number 29794 in the judicial district of Fairfield at Bridgeport (docket 2) for offenses that occurred on August 18, 1982. Finally, the petitioner was the defendant in docket number 29896 in the judicial district of Fairfield at Bridgeport (docket 3) for offenses that occurred on February 8, 1983. He was held in presentence confinement with respect to docket 3 starting on February 10, 1983, and on all three dockets starting on May 4, 1983, when the petitioner was ordered held in lieu of bond on dockets 1 and 2.
On January 20, 1984, the court, Callahan, J., sentenced the petitioner with respect to docket l.
On April 5, 1984, Judge Callahan sentenced the petitioner with respect to docket 2.
On February 27, 1985, the court, Curran, J., sentenced the petitioner on docket 3.
Following his successful appeal to our Supreme Court; State v. Whitaker, 202 Conn. 259, 260, 520 A.2d 1018 (1987);
In order to calculate the petitioner’s release date, the respondent had to comply with § 53a-38 (c), which provides that “[w]hen a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.” Additionally, the forty year sentence merged with the sentences imposed on dockets 1 and 2 by operation of § 53a-38 (b) (1). The respondent credited the petitioner 344 days of presentence confinement credit for the period of time that he had been held as a pretrial detainee from February 10,1983, until January 20,1984, the date he was sentenced on docket l.
The petitioner filed a motion for reconsideration of the portion of the decision concerning jail credit for time served simultaneously in pretrial confinement on multiple docket numbers. The court denied his motion on the ground that, at the time the motion was filed, the petitioner was not in the custody of the respondent with respect to dockets 1 and 2, and, therefore, the court lacked jurisdiction. The petitioner filed a motion for reconsideration of the court’s ruling, which the court denied. This appeal followed. Additional facts will be set forth as necessary.
I
The petitioner first claims that the respondent improperly construed and applied § 18-98d, and violated his constitutional rights to equal protection and due process as well as the doctrine of separation of powers. Specifically, the petitioner claims that he was entitled
At the outset, we identify the applicable standard of review. The petitioner’s claims raise issues of statutory construction, over which our review is plenary. Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001); Rivera v. Commissioner of Correction, 254 Conn. 214, 238 n.23, 756 A.2d 1264 (2000). “A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. [General Statutes § l-2z].” (Citation omitted; internal quotation marks omitted.) Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 129, 848 A.2d 451 (2004).
The appropriate starting point for our discussion is to review in detail our Supreme Court’s recent decision in Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), which controls many of the issues raised in the petitioner’s appeal, and its two companion cases, Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004), and Hunter v. Commis
The petitioner in Harris was held in presentence confinement and faced pending criminal charges on various dockets. Harris v. Commissioner of Correction, supra, 271 Conn. 811-13. On June 16, 2000, he was sentenced on two dockets stemming from charges in Manchester to a total effective term of four years incarceration concurrent to his then present sentence, which was unrelated to the proceedings at issue. Id., 812. Eleven days later, on June 27, 2000, the trial court sentenced the petitioner on a docket stemming from charges in Hartford to a term of four years incarceration, concurrent to all of the sentences that he was serving at that time. Id. The commissioner of correction credited the petitioner with 751 days of presentence confinement credit on one of the Manchester sentences, but did not apply those credits to the Hartford sentence. The commissioner of correction then determined that the Hartford sentence, which had longer to run, became the controlling sentence pursuant to § 53a-38 (b). Id., 813-14.
In holding that the commissioner of correction improperly calculated the petitioner’s credits, the habeas court in Harris concluded that the rationale set forth in Payton v. Albert, 209 Conn. 23, 547 A.2d 1 (1988) (en banc), overruled in part on other grounds by Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000), was applicable. Harris v. Commissioner of Correction, supra, 271 Conn. 815. The habeas court in Harris based its decision on the calculation method utilized in Payton. Id. Additionally, the habeas court in Harris agreed in part with the petitioner’s equal protection claim. Id., 816. Essentially, the
Our Supreme Court reversed the judgment of the habeas court. Id., 844. In doing so, it focused on the plain language of § 18-98d (a) (1), which provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution 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; provided (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) 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 . . . .” (Emphasis added.) The court also noted that although the legislature has permitted concurrent prison terms to be served together, they remain separate and distinct from one another. Id., 819.
Ultimately, our Supreme Court concluded that once the commissioner of correction had counted the 751 days of presentence confinement credit for the Manchester dockets, those credits could not be counted again and applied against the Hartford docket. Id., 820. In doing so, the court limited Payton to its facts,
A
Statutory Claims
In the present case, the petitioner contends that the court improperly interpreted § 18-98d and, in doing so, ran afoul of the precedent set forth in Payton v. Albert, supra, 209 Conn. 23. The petitioner also expressly relies on the habeas courts’ decisions in Harris, Hunter and Cox
1
We first address the petitioner’s claims that the court violated the rule set forth by our Supreme Court in Payton v. Albert, supra, 209 Conn. 23. In that case, the petitioner was held in presentence confinement on one docket for a total of 113 days and on a second docket for seventy-six days. Id., 24-27. On January 16, 1987, he pleaded guilty to the charges stemming from both dockets and received two and one-half years to serve on each. Id., 27. The sentencing court ordered the terms of incarceration to run concurrently. Id. Our Supreme Court held that the proper determination of the petitioner’s discharge date was accomplished by taking the longer sentence to run and using those, and only those, credits. Id., 32.
In Harris v. Commissioner of Correction, supra, 271 Conn. 808, our Supreme Court expressly limited Payton to a factual scenario in which the prisoner has been sentenced to concurrent prison terms on the same day. “The only issue before this court in Payton was whether presentence confinement days unique to one sentence could be transferred to another sentence, imposed on the same date, for the purpose of accelerating the petitioner’s discharge date.” Id., 820. Additionally, “[t]he Payton court’s commentary on the respondent’s method for calculating Payton’s discharge date must be read in the context of the issue posed by that case, namely, whether presentence confinement days accrued solely in connection with one sentence could be transferred to another concurrent sentence imposed on the same date for the purpose of advancing the petitioner’s discharge date. . . . Certainly, it was not the court’s intent in Payton to prescribe a sweeping mandate obligating the respondent to apply the same
In the present case, the petitioner was sentenced to different terms of incarceration on different dates: January 20, 1984, April 5, 1984, February 27, 1985, and then resentenced on July 10,1987, on docket 3. Because he was not sentenced to concurrent terms on the same date, Payton is inapplicable to this case.
2
The petitioner next argues that the court failed to apply each day served concurrently in presentence confinement on dockets 1, 2 and 3 as a credit against the total effective sentence in each respective docket under which he was held. In light of the Harris holding, this was not improper. We further conclude, however, that it was improper for the respondent to apply presentence
In Harris v. Commissioner of Correction, supra, 271 Conn. 808, our Supreme Court, relying on the language in § 18-98d (a) (1) (A), which provides that “each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement,” held that once the 780 days of presentence credit confinement was applied to the sentence stemming from the Manchester dockets, they could not be counted again to reduce the time owed on the sentence originating from the Hartford docket, even though the sentences were to be served concurrently. Id., 820. In the present case, after the respondent applied the petitioner’s 261 days of presentence confinement credit to docket 1, that time could not be included in the 344 days credited by the court in docket 3. Accordingly, the petitioner’s discharge date must be recalculated. See Cox v. Commissioner of Correction, supra, 271 Conn. 853, 855.
B
Constitutional Claims
1
The petitioner next claims that the respondent’s method of calculating and applying presentence confinement credits violated his right to equal protection on the basis of his indigency.
Our Supreme Court rejected this exact claim in Harris v. Commissioner of Correction, supra, 271 Conn. 836-41. In doing so, it concluded that the statutory scheme at issue “neither impinges on a fundamental right nor burdens a suspect class . . . .” Id., 840. It therefore analyzed the scheme and determined that it was rationally related to a legitimate public purpose and therefore passes constitutional muster. Id., 841. As an intermediate appellate court, we, of course, are bound by our Supreme Court’s decisions. See State v. Nogueira, 84 Conn. App. 819, 825, 856 A.2d 423 (2004); Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). Thus, the petitioner’s equal protection claim must fail.
2
The petitioner next claims that the respondent violated his right to due process.
“The analytical framework for reviewing substantive due process claims is well established. If the petitioner can demonstrate that [his claim] implicates a fundamental right, we must apply strict scrutiny to that statutory provision and require the state to show that the denial of [that claim] furthers a compelling state interest. . . . If, however, the petitioner’s claim does not implicate a fundamental right, we review [it] under a rational basis test .... [T]he state must show only that the law is not arbitrary or capricious, that is, that it bears a reasonable relation to some legitimate state purpose.” (Citations omitted.) Hammond v. Commissioner of Correction, 259 Conn. 855, 888, 792 A.2d 774 (2002).
In setting forth his claim, the petitioner again argues that the respondent’s application of § 18-98d implicated a fundamental right, thereby requiring the showing of a compelling state interest. In Hammond, however, our Supreme Court stated: “It is well established that presentence credit is a creatine of statute and that, as a general rule, such credit is not constitutionally required. . . . Because such credit is not constitutionally mandated, it is not one of those few rights deemed so fundamental that the state cannot impinge upon it in the absence of a compelling reason. It is not the province of [the courts] to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. . . . Rather, [t]he key to discovering whether a right is fundamental is in assessing whether the right is explicitly or implicitly guaranteed by the [constitution.” (Citations omitted; internal quotation marks omitted.) Id., 879-80. It then determined that it would apply rational basis review to the claim, concluding that “[c]redit for presentence incarceration does not fall within this exalted group of rights that are recognized as fundamental.” Id., 881. Because the record does not
We have concluded that the respondent’s application of § 18-98d satisfies the rational basis review in the context of equal protection analysis. See Harris v. Commissioner of Correction, supra, 271 Conn. 833-36. “Equal protection rational basis review is for all material purposes . . . indistinguishable from the analysis in which we would engage pursuant to a due process claim.” (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 841, 761 A.2d 705 (2000); see also Hammond v. Commissioner of Correction, supra, 259 Conn. 890. As a result, the petitioner’s claim that his due process rights have been violated under the respondent’s application of § 18-98d, having been rejected in the equal protection context, also must fail.
3
The petitioner next claims that the respondent violated the separation of powers doctrine. The petitioner
As a preliminary matter, we note that “[a] party challenging the constitutionality of a statute bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality and, when interpreting a statute, will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” (Internal quotation marks omitted.) State v. Gracia, 51 Conn. App. 4, 9, 719 A.2d 1196 (1998).
“[T]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands. . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch’s independence and performance of assigned powers. ... It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof. . . . [Thus] [t]he separation of powers doctrine serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power. . . .
“In the context of challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power, we have refused to
The authority of the judiciary to sentence an individual convicted of a criminal offense is often intertwined with legislative direction. For example, we have noted that “[i]t is well established that the legislature may impose mandatory minimum terms of imprisonment
In the present case, we cannot conclude that § 18-98d, as applied by the respondent, significantly interferes with the judiciary’s role in sentencing. As we have demonstrated, the legislature plays a substantial role, in conjunction with the judiciary, in sentencing those convicted of criminal offenses. Although the sentencing judge cannot aggregate presentence confinement time for multiple dockets, this limitation is not different from a legislative mandate to enforce a mandatory minimum sentence. Similarly, a sentencing judge, within the permissible limits of relevant statutes, has authority to craft and to effectuate a concurrent prison term of whatever length he or she determines appropriate. Accordingly, the petitioner’s claim of a violation of the separation of powers doctrine fails.
II
The petitioner’s final claim is that the respondent improperly construed and applied § 53a-38, which resulted in certain constitutional violations. Specifically, the petitioner argues that the respondent improperly (1) credited the time served on a vacated sentence
In order to resolve this issue, we must reiterate certain facts. The petitioner was sentenced on docket 3 on February 27, 1985, as follows: On count one, he received twenty-five years; on counts two and three, twenty years each; on counts four and five, ten years each. The sentences on counts one through four were ordered to be served consecutively to each other and to the petitioner’s prior sentences on dockets 1 and 2, while the sentence on count five was ordered to be concurrent with the sentences on counts one through four and the sentences on dockets 1 and 2. In sum, the petitioner received a total effective sentence of seventy-five years. Following his successful appeal to our Supreme Court, the petitioner again was convicted on all five counts contained in docket 3. On resentencing, on July 10, 1987, the court imposed the following: On each of the five counts, the petitioner received a twenty year sentence, with the sentences on counts one and three to be served consecutively to each other and the sentences on counts two, four and five to run concurrently with the sentences on counts one and two and with each other. By operation of law, because there was no reference to the sentence imposed on dockets 1 and 2, docket 3 ran concurrently with those sentences.
Following the petitioner’s resentencing on docket 3, the respondent calculated his discharge date and utilized the up-front posting method of applying statutory good time credits. The court concluded that the deter
The court concluded that the petitioner was entitled to receive postconviction credit on count five for the time period from the original docket 3 sentence through the date of the Supreme Court’s decision. This credit, however, did not affect the second docket 3 sentence, which was a total effective forty year sentence. The court also concluded that the petitioner was entitled to up-front posting of good conduct credits for the forty year sentence imposed on July 10, 1987. We address each claim in turn.
A
The petitioner first argues that the respondent improperly applied the “relation back” doctrine found in § 53a-38 (c). Specifically, the petitioner contends that the concurrent forty year sentence should have commenced on the date of the original docket 3 sentence
In resolving this issue, we must interpret subsections (b) and (c) of § 53a-38. Our review is plenary. The appropriate starting point, of course, is the relevant statutory language. See Connelly v. Commissioner of Correction, supra, 258 Conn. 403. Section 53a-38 provides in relevant part: “(b) A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where 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-, (2) if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term.
“(c) When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.” (Emphasis added.)
In the present case, our Supreme Court reversed the petitioner’s original conviction with respect to docket 3 and ordered a new trial. See State v. Whitaker, supra, 202 Conn. 260. Following retrial and conviction, the
To calculate the petitioner’s sentence, we apply § 53a-38 (b) (1) and conclude that, as of February 27, 1985, the forty year sentence merged with the sentences on dockets 1 and 2, and the new aggregate sentence is controlled by the forty year sentence imposed on docket 3.
B
The petitioner next claims that the respondent failed to apply the statutory good time credit from the vacated seventy-five year sentence. Specifically, the petitioner argues that the respondent should have applied the statutory good time credit posted on his vacated seventy-five year sentence to reduce the forty year sentence imposed following his retrial. We disagree.
Section 18-7a (b) provides in relevant part: “ [A]ny person sentenced to a term of imprisonment for an offense committed on or after July 1, 1981, 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 sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”
The second statutory provision pertinent to the petitioner’s claim is § 53a-38 (c). Specifically, the petitioner relies on the following: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense ... all time served under or credited against the vacated sentence shall be credited against the new sentence." (Emphasis added.) General Statutes § 53a-38 (c).
To address the petitioner’s claim, we must revisit
The petitioner argues that at the outset of his seventy-five year' sentence, he received statutory good time credit applied to his sentence. This credit roughly totals
It is axiomatic that the law favors rational and sensible statutory construction, and that the courts interpret statutes to avoid bizarre or nonsensical results. See, e.g., State v. Sandoval, 263 Conn. 524, 553, 821 A.2d 247 (2003); Commissioner of Transportation v. Kahn, 262 Conn. 257, 275, 811 A.2d 693 (2003); State v. Hall, 82 Conn. App. 435, 442, 844 A.2d 939 (2004). [W]e will not undertake an examination of [a statutory provision) with blinders on regarding what the legislature intended [it] to mean. ... In interpreting a statute, common sense must be used .... The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. ... We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. . . . When one
The petitioner requests that we interpret the statute to require the respondent to apply the twenty-five years worth of statutory good time credit
We agree with the United States Court of Appeals for the Eleventh Circuit, which stated that “when a
The following hypothetical demonstrates the inherent difficulties with the petitioner’s interpretation. Had the petitioner been resentenced to a total effective term of twenty years, he would not serve any time for the crimes contained in docket 3. Instead, on the basis of a sentence that was vacated and, thus, never really existed, he would be given statutory good time credits on a sentence that never existed. Furthermore, if the sentencing court attempted to account for statutory good time credits and increased the petitioner’s sentence, it could appear that he was being subjected to
We interpret the relevant statutory provisions to require the respondent, following resentencing, to reapply the statutory good time calculation on the basis of the controlling forty year sentence. Such an interpretation comports with the constitutional mandate of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), which requires that a petitioner be given full credit for time served on a vacated sentence. The petitioner must be afforded roughly one third of forty years, or approximately thirteen and one-third years, of statutory good time posted to his sentence. Accordingly, as we determined his maximum release date of February, 2025, after applying the statutory good time credit to which he is entitled, we conclude that, absent any other adjustments for credits earned or forfeited, the petitioner’s release date is estimated roughly as November, 2011.
We reverse in part the judgment of the habeas court and remand the case to the habeas court to determine the petitioner’s release date in accordance with this opinion. The judgment is otherwise affirmed.
In this opinion the other judges concurred.
Throughout his brief, the petitioner argues that the respondent’s calculations regarding his prison sentence violated both his state and federal constitutional rights. He has failed, however, to brief separately the state constitutional issues. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [petitioner] has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the [petitioner’s] claim . . . .” (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004). Accordingly, we limit our review to the relevant provisions of the federal constitution.
The petitioner has remained continuously in the custody of the respondent since February 10,1983. The respondent’s recalculation of the petitioner’s sentence on docket 1 and the petitioner’s forfeiture of statutory good time credit had advanced the petitioner’s release date on docket 1 to September, 1987.
Docket 1 consisted of three separate counts. The petitioner was convicted and sentenced in count one for sexual assault in the third degree in violation of General Statutes § 53a-72a, in count two for larceny in the fourth degree in violation of General Statutes § 53a-125 (a) and in count three for
General Statutes § 18-7a (b) provides: “Except as provided in subsection (c) , any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1981, 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 sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”
“[Pjosting is a practice whereby department of correction personnel estimate and credit statutory good time at the outset of aprisoner’s sentence on the basis of the term imposed by the sentencing court as opposed to the term of imprisonment actually served.” (Emphasis added.) Tyson v. Commissioner of Correction, 261 Conn. 806, 824, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003).
“[Statutory good time credit... is credit earned by a sentenced inmate for his or her good behavior. Statutory good time credit is governed by General Statutes § 18-7a . . . .” (Citations omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 217 n.2, 756 A.2d 1264 (2000).
We note that in Velez v. Commissioner of Correction, 250 Conn. 536, 537-38, 738 A.2d 604 (1999), our Supreme Court concluded that General Statutes § 18-100d rendered General Statutes §§ 18-7, 18-7a (c), 18-98a, 18-98b and 18-98d (b) inapplicable to persons sentenced to terms of imprisonment for crimes committed on or after October 1, 1994.
General Statutes § 18-98d (a) (1) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution 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; provided (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) 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 confinement 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 petitioner was confined from November 10 to 12,1982 (three days), and May 4, 1983, to January 20, 1984 (261 days).
General Statutes (Rev. to 1981) § 18-98d (b) provides: “In addition to any reduction allowed under subsection (a) of this section, if such person obeys the rules of the facility such person may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against such person may not be counted more than once in computing a good conduct reduction under this subsection.” Public Acts 2002, No. 02-18, increased the rate of good conduct fine reduction from $100 to $500 for each thirty days of presentence confinement.
Docket 2 consisted of a single conviction for sexual assault in the first degree in violation of General Statutes § 53a-70 (a).
General Statutes § 53a-38 (b) provides: “A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where 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; (2) if the sentences ran consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term.” (Emphasis added.)
Docket 3 contained five separate counts. The petitioner was convicted in count one of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), in count two of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), in count three of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), in count four of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and in count five of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).
“On appeal, the [petitioner] contends that the trial court erred (1) in summarily quashing a subpoena, (2) in ordering [him] to produce statements of certain alibi witnesses, and (3) in imposing a total effective sentence
The resentencing mittimus does not indicate whether the forty year sentence was to run concurrently or consecutively to the petitioner’s prior sentence. It is the law of this state that in the absence of an indication to the contrary, two separate sentences are presumed to be concurrent rather than consecutive. See State v. Pina, 185 Conn. 473, 478-79, 440 A.2d 962 (1981); Redway v. Walker, 132 Conn. 300, 303, 43 A.2d 748 (1945).
The 344 days of presentence confinement included the 261 days of presentence confinement that already had been counted once by the respondent when determining the petitioner’s release date with respect to docket 1.
The petitioner alleged that the respondent (1) violated General Statutes § 53a-38 (c) by failing to credit him 693 days served on the original docket 3 sentence on February 27, 1985, until January 22, 1987, (2) improperly failed to apply each day of presentence confinement earned under docket 1 and improperly failed to calculate presentence good conduct credit with respect to docket 2, (3) violated General Statutes § 18-98d by failing to apply each day of presentence confinement to his aggregate total effective sentence, (4) violated General Statutes §§ 18-7,18-7a and Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000), by failing to calculate the statutory good time applicable to reduce the discharge date of his merged and aggregated total effective sentence, (5) improperly failed to calculate the seven day job credit applicable to his merged and aggregated total effective sentence, (6) violated his state and federal constitutional rights to equal protection, (7) violated his state and federal constitutional rights to due process of law, (8) violated the prohibition against double jeopardy and (9) violated the separation of powers doctrine by impairing the judicial authority’s right to impose concurrent sentences.
The respondent argues that because the court awarded the petitioner some of the credit he was seeking, he was not aggrieved and, therefore, we lack subject matter jurisdiction to hear his appeal. We disagree. “[P]roof of aggrievement is ... an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal. . . . Ordinarily, a party that prevails in the trial court is not aggrieved. . . . Moreover, [a] party cannot be aggrieved by a decision that grants the very relief sought.” (Citation omitted; internal quotation marks omitted.) State v. Sanders, 86 Conn. App. 757, 763-64, 862 A.2d 857 (2005).
Nevertheless, a party that receives partial relief has been aggrieved for purposes of appeal. “A prevailing party, however, can be aggrieved if the relief awarded to that party falls short of the relief sought.” Blue Cross/ Blue Shield of Connecticut, Inc. v. Gurski, 47 Conn. App. 478, 481, 705 A.2d 566 (1998); see also Seymour v. Seymour, 262 Conn. 107, 114-15, 809 A.2d 1114 (2002). In the present case, the petitioner did not receive all the relief, in the form of jail credits, that he sought. Accordingly, the petitioner was aggrieved for purposes of appeal.
Our Supreme Court has explained that “[t]he purpose of the jail time statutes 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 mittimus ... or because of the court’s refusal to allow bail or the defendant’s inability to raise bail . . . .” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 247, 756 A.2d 1264 (2000).
We note that the Harris, Cox and Hunter decisions were released after oral argument before us in the present case.
See Harris v. Warden, Superior Court, judicial district of Tolland, Docket No. 3480 (June 4, 2003), rev'd sub nom. Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004); Cox v. Warden, Superior Court, judicial district of Tolland, Docket No. 3701 (June 24, 2003), rev’d sub nom. Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004); and Hunter v. Warden, Superior Court, judicial district of Tolland, Docket No. 3434 (June 11,2003), rev’d sub nom. Hunter v. Commissioner of Correction, 271 Conn. 856, 860 A.2d 700 (2004).
Although the respondent has not filed a cross appeal in this case, we note that the petition for a writ of habeas corpus placed the presentence confinement issue before the habeas court and that the petitioner has elected to make this an issue on appeal. Because the issue is before us, we must comply with the statutory language as enacted by the legislature.
The equal protection clause of the fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Although the petitioner failed to brief separately the state constitutional issue, thereby limiting our review to the federal constitution; see footnote
The petitioner also argues that protection against double jeopardy is part of due process protection. Because in part II we conclude that the petitioner’s double jeopardy rights were not violated, it follows that there can be no due process violation on that basis.
The petitioner relies on Laden v. Warden, 169 Conn. 540, 363 A.2d 1063 (1975), as authority that a fundamental right has been impinged upon. “The refusal to credit the [petitioner] with jail time affects the period of his confinement and directly impinges on his fundamental right of liberty. . . . Hence his lengthened confinement must be justified by a compelling state interest.” (Citations omitted.) Id., 544. We believe that Hammond controls the issue before us. We also note that in Laden, the commissioner of correction disallowed sixty days of credit actually served by the plaintiff as a result of two separate infractions in the correctional facility. Id., 540-41. In the present case, the respondent has counted and applied the presentence confinement earned by deducting that amount (261 days) from the sentence imposed on docket 1. Thus, we are not presented with a factual scenario in which days served have not been counted at all.
Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .”
“In contradistinction to jail time, good time is a commutation of a sentence, affecting an inmate’s parole and discharge dates, thereby serving an important rehabilitative function by allowing an inmate ... to earn an earlier release for himself.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, supra, 254 Conn. 247.
See footnote 2.
The petitioner also argues that the respondent’s application of General Statutes § 53a-38 (c) violates his equal protection and due process rights, and the prohibition against double jeopardy and the separation of powers doctrine. Because we agree with the petitioner’s argument that the respondent misapplied § 53a-38 (c), we need not discuss those constitutional issues. See State v. Rizzo, 266 Conn. 171, 235, 833 A.2d 363 (2003) (noting traditional rule of construing statutes, if possible, to avoid risk of running afoul of constitutional prohibitions).
In Ms brief, the petitioner argued that the court improperly concluded that it lacked jurisdiction to determme whether he was entitled to a presentence confinement credit m dockets 1 and 2. The court had concluded at the time the habeas petition was filed that the petitioner was not m custody on either docket 1 or 2 and, therefore, it lacked jurisdiction with respect to those claims. The petitioner further contends that the respondent shoMd have applied the credit to all tMee sentences and that the failure to do so improperly mcreased the commencement of the consecutive portion of the origmal docket 3 sentence. We conclude that the forty year sentence merged with the sentences on dockets 1 and 2 and ran concurrently with them, becoming the controlling sentence, and thereby elimmated the consecutive portion of the origmal docket 3 sentence. Accordingly, we need not reach the issue of whether the court lacked jurisdiction to consider whether the petitioner was entitled to have 261 days of presentence credit applied to the consecutive portion of the origmal docket 3 sentence because the consecutive portion of the docket 3 sentence has been removed from the case and the 261 days properly have been counted against the petitioner’s total effective sentence.
We are mindfM of our Supreme Court’s decisions in Casey v. Commissioner of Correction, 215 Conn. 695, 577 A.2d 1051 (1990), and Sutton v. Lopes, 202 Conn. 343, 521 A.2d 147 (1987), both of wMch held that time spent m custody serving a sentence later vacated was presentence confinement credit. M Casey, our Supreme Court stated that General Statutes § 53a-38 (c) “is a general statutory provision wMch requires that a prisoner be given full credit for time served on a vacated sentence. ... It does not
See General Statutes § 18-98a.
See General Statutes § 18-98b.
The General Assembly eliminated posting by enacting General Statutes § 18-7a (c). Nichols v. Warren, 209 Conn. 191, 199, 550 A.2d 309 (1988).
Our Supreme Court has set forth a detailed history of the methods used to calculate and to apply statutory good time credits earned by sentenced prisoners. See Nichols v. Warren, 209 Conn. 191, 198-201, 550 A.2d 309 (1988).
We note that in Chung v. Commissioner of Correction, 245 Conn. 423, 434, 717 A.2d 111 (1998), our Supreme Court disavowed certain language contained in Seno and held that the enhanced rate of twelve days per month continued in General Statutes § 18-7a (b) did not commence until the prisoner actually had served five years without any regard to any presentence confinement time or presentence good time.
As a result of our holding in part II A and application of the rule set forth in Chung v. Commissioner of Correction, 245 Conn. 423, 434, 717 A.2d 111 (1998), it would appear that a small portion of the docket 3 sentence would earn statutory good time credit at the rate of ten days per month before the enhanced rate of twelve days per month. Rather than needlessly complicate this opinion, we will, for the sake of convenience, estimate these statutory good time credits as one third of the total effective sentence.
We note that it is well established in our jurisprudence that presentence confinement credits, authorized by General Statutes § 18-98d and its predecessor, General Statutes (Rev. to 1979) § 18-98, are matters of legislative grace. See Harris v. Commissioner of Correction, supra, 271 Conn. 833, 838; Hammond v. Commissioner of Correction, supra, 259 Conn. 879; Johnson v. Manson, 196 Conn. 309, 321 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); see also Franklin v. Berger, 211 Conn. 591, 611-12, 560 A.2d 444 (1989) (Healey, J, concurring). If such time, which is time in which the prisoner is actually confined and his liberty deprived, are matters of legislative grace, we conclude that statutory good time credits, which are calculated not on time served but by the length of the sentence, similarly must be matters of legislative grace.