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James E. v. Commissioner of Correction

Supreme Court of Connecticut

July 25, 2017

JAMES E.
v.
COMMISSIONER OF CORRECTION[*]

          Argued April 6, 2017

          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 general, for the appellee (respondent).

          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 Correction 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 punishment 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 violation 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 eligibility provision of § 54-125a (b) (2) that was in place at the time the petitioner committed his offenses to determine whether the 2013 amendment 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 distinguished 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.

         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 respondent's motion to dismiss and rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed. Affirmed.

          OPINION

          McDONALD, J.

         The sole issue in this appeal[1] is whether the habeas court properly dismissed the petition 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, determining 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 committed the offenses for which he is incarcerated was identical to the challenged 2013 provision, the petitioner suffered no increase in punishment that would constitute 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 sentencing and the challenged provision thereafter enacted, which would have reflected that he has suffered 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 provision 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 criminal case was pending before the trial court, General Statutes § 18-98e[2] 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 discretion 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 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 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 sentence, the legislature repealed the language in the relevant 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 ...


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