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Perez v. Commissioner of Correction

Supreme Court of Connecticut

July 25, 2017

DOMINIC PEREZ
v.
COMMISSIONER OF CORRECTION

          Argued April 6, 2017

          Temmy Ann Miller, assigned counsel, 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

         Pursuant to statute ([Rev. to 2009] § 54-125a [b] [2], as amended by P.A. 10-36), a person convicted of an offense involving the use of physical force against another person shall be ineligible for parole until he has served not less than 85 percent of the definite sentence imposed.

         Pursuant further to statute ([Rev. to 2009] § 54-125a [e]), the Board of Pardons and Paroles shall hold a hearing to determine the suitability for parole of any person whose eligibility for such parole is subject to the provisions of § 54-125a (b) (2) upon his completion of 85 percent of his definite or aggregate sentence.

         The petitioner, who had been convicted of manslaughter in the first degree and carrying a pistol without a permit for conduct occurring in 2010, filed a petition for a writ of habeas corpus, claiming, inter alia, that amendments in 2013 (P.A. 13-3 and P.A. 13-247) to § 54-125a violated his constitutional rights to due process and equal protection, the ex post facto clause of the United States constitution, and the separation of powers doctrine. In 2011, while the petitioner's criminal case was pending, the legislature enacted a statute (§ 18-98e) pursuant to which the respondent, the Commissioner of Correction, was vested with discretion to award risk reduction credit toward the reduction of an inmate's sentence, up to five days per month, for positive conduct. The legislature also amended § 54-125a (b) (2) and (e) in 2011 to provide that risk reduction credit earned under § 18-98e was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and rendered that inmate eligible for a parole hearing after he had served 85 percent of that reduced sentence. After the petitioner had been sentenced, the legislature again amended § 54-125a in 2013, eliminating the language that permitted the parole eligibility date to be advanced by the application of earned risk reduction credit, and eliminating the requirement that the Board of Pardons and Paroles ‘‘shall'' hold a parole hearing after an inmate has completed 85 percent of his sentence. Under the 2013 amendments, which became effective July 1, 2013, any risk reduction credit earned by an inmate, and not subsequently revoked by the respondent, would still be applied to reduce an inmate's sentence but would not be applied to advance his parole eligibility date, and, once that eligibility date arises, the parole board may decline to hold a hearing. In his habeas petition, the petitioner challenged the application of the 2013 amendments to the calculation of his parole eligibility date and to his right to a hearing on his suitability for parole, alleging that he had already been awarded risk reduction credit by the respondent, and that, prior to the 2013 amendments, the respondent had applied that credit to advance his parole eligibility date. The habeas court granted the respondent's motion to dismiss all counts of the habeas petition, concluding that all of the petitioner's claims failed given the speculative nature of earned risk reduction credit and the respondent's discretion to award and revoke such credit, and concluding that, because the petition failed to state a claim on which habeas relief could be granted, the court lacked subject matter jurisdiction over the petition. The habeas court thereafter rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed. Held that the habeas court properly dismissed the petition for a writ of habeas corpus, this court having determined that, although the habeas court improperly dismissed many of the petitioner's claims solely on the basis of the speculative nature of earned risk reduction credit, the habeas court lacked jurisdiction over all of the petitioner's claims:

         1. The petitioner could not prevail on his claims that the 2013 amendments to § 54-125a that eliminated the application of prior earned risk reduction credit to advance his parole eligibility date and the mandate that a parole hearing be held violated his right to due process under the federal and state constitutions and his right to personal liberty pursuant to the state constitution: the petitioner failed to establish a vested liberty interest in either the granting of parole, the timing of when parole is granted or the procedure by which the parole board exercises its discretion to award or deny parole, as the granting of parole is within the discretion of the parole board, and the petitioner also failed to establish a vested right in the application of the risk reduction credit previously granted to advance his parole eligibility date, as that credit was subject to revocation at the discretion of the respondent for good cause; moreover, the monthly parole eligibility calculation that the respondent provided to the petitioner was simply an informational tool to allow the respondent and the petitioner to estimate his parole eligibility date, provided the respondent did not rescind any of the earned credit.

         2. The petitioner's claim that the 2013 amendments to the parole hearing and eligibility provisions of § 54-125a violated the ex post facto clause of the federal constitution was not cognizable, as the parole hearing provision did not increase the petitioner's overall sentence, alter his initial parole eligibility date, change the standard used by the parole board to determine parole suitability, or increase the punishment imposed for the petitioner's offense, and the parole eligibility amendment restored the parole eligibility calculation to 85 percent of the petitioner's definite sentence, thereby returning the petitioner to the position he was in at the time of his offense.

         3. This court found unavailing the petitioner's claim that the parole board's established policy of not awarding parole to any inmate whose parole eligibility date was within six months of the date he would have completed serving his definite sentence violated the doctrine of separation of powers in that such a policy converted a legislatively determined parole eligible offense into an offense that, by virtue of executive action, was rendered parole ineligible: the petitioner failed to allege that the determination of parole eligibility was a power solely vested in the legislature and may not be delegated to the executive branch, and the circumstances giving rise to such a constitutional defect were extraordinarily speculative because, even if the petitioner earned the maximum possible risk reduction credit, the respondent was vested with discretion to revoke such credit, and, thus, the claim therefore was premature; moreover, the petitioner did not address or challenge a 2015 amendment to § 18-98e (a) that rendered him ineligible to earn any further risk reduction credit.

         4. The petitioner could not be granted habeas relief on his claim that the 2013 amendment to the parole eligibility provision of § 54-125a as applied to him violated the equal protection clause of the federal constitution because there was disparate treatment of classes of inmates by the parole board when that board calculated the parole eligibility dates for certain inmates who had been granted parole as of July 1, 2013, by including earned risk reduction credit, but did not include such credit in the calculation of the parole eligibility date for the petitioner and other inmates who had not yet been granted parole; even if the two classes of inmates were similarly situated, the timing of parole eligibility was not a fundamental right and inmates, or subsets of inmates differentiated only by the timing of when they were considered for parole, are not a suspect class, and, accordingly, the application of earned risk reduction credit to parole eligibility based on whether an inmate had already been granted parole prior to July 1, 2013, did not violate equal protection when there was a rational basis for such differentiation, that basis being the parole board's determination that its decision not to revoke a grant of parole that had already been awarded supported clarity in the administration of parole and an understanding that revocation of parole due to no action on the part of the offender could have a negative impact on the offender's rehabilitation and reintroduction into society.

         5. The petitioner could not obtain habeas relief on his claim that § 18-98e facially violates the equal protection clause of the federal constitution on the ground that it does not permit offenders to earn risk reduction credit while held in presentence confinement and, as a result, offenders like the petitioner, who cannot afford bail, do not earn risk reduction credit for the entire period of their confinement, whereas offenders who can afford bail are able to benefit from the award of risk reduction credit during their entire sentence; even if these two classes of offenders are similarly situated, an inmate has no fundamental right in the opportunity to earn risk reduction credit because such credit is a statutory creation and is not constitutionally required, the petitioner has not alleged that, as a result of § 18-98e, he, or other indigent individuals, have been imprisoned beyond the maximum period authorized by statute, the class' status as indigent individuals did not constitute a suspect class, and there are numerous rational bases for treating presentence confinement differently under a credit statute, including the different purposes of presentence confinement and incarceration after sentencing. 6. The petitioner could not be granted habeas relief on his statutory claim that a proper interpretation of the 2013 amendments to the parole eligibility and hearing provisions of § 54-125a would limit application of those provisions prospectively to inmates who were committed to the respondent's custody to begin serving their sentences on or after July 1, 2013, that claim having been premature; it was uncertain whether the parole board would decline to conduct a parole hearing when the petitioner became eligible for parole, and if the parole board decided to hold a hearing or if the petitioner did not have any earned risk reduction credit remaining that would have advanced his parole eligibility date under the 2011 parole eligibility provision, then retroactive application to the petitioner of the 2013 amendments would not cause the petitioner to suffer an actual injury.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Fuger, 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.

         This case presents challenges to the constitutionality of substantive and procedural amendments to General Statutes (Rev. to 2013) § 54-125a, which governs parole eligibility for persons who received a definite sentence or aggregate sentence of more than two years, as applied to an offender who was sentenced before the amendments took effect. More specifically, we consider statutory amendments (1) eliminating earned risk reduction credit from the calculation of a violent offender's parole eligibility date, when such credit was not available at the time the offense was committed; Public Acts 2013, No. 13-3, § 59 (P.A. 13-3); and (2) altering parole eligibility hearing procedures to allow the Board of Pardons and Paroles to forgo holding a hearing. Public Acts 2013, No. 13-247, § 376 (P.A. 13-247). The petitioner, Dominic Perez, appeals[1] from the judgment of the habeas court dismissing his petition claiming that application of these 2013 amendments to him violated his state and federal due process and liberty rights, the ex post facto clause of the United States constitution, the separation of powers doctrine, and the equal protection clause of the United States constitution, and is contrary to the language of § 54-125a. The petitioner contends that the habeas court improperly dismissed his claims on the ground that it would be speculative whether the statutory changes would cause any injury to the petitioner because the award of risk reduction credit by the respondent, the Commissioner of Correction, is discretionary. We agree with the petitioner to the extent that the habeas court improperly dismissed many of the claims raised in the petition solely on the basis of the ‘‘speculative nature'' of earned risk reduction credit. Nevertheless, applying the proper test to each claim raised by the petitioner, we hold that the habeas court lacked jurisdiction over the petitioner's claims. We therefore affirm the judgment of the habeas court dismissing the petition.

         I

         The following procedural and statutory history is relevant to this appeal. The petitioner committed the offenses giving rise to his incarceration, which involved his use of deadly force, in November, 2010. At that time, the relevant parole eligibility provision of § 54-125a provided in relevant part: ‘‘A person convicted of . . . an offense, other than [certain parole ineligible offenses] 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.'' General Statutes (Rev. to 2009) § 54-125a (b) (2), as amended by Public Acts 2010, No. 10-36, § 30. At that time, the relevant parole hearing provision of § 54-125a provided that the board ‘‘shall hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is subject to the provisions of subdivision (2) of subsection (b) of this section upon completion by such person of eighty-five percent of such person's definite or aggregate sentence. . . .'' (Emphasis added.) General Statutes (Rev. to 2009) § 54-125a (e).

         In July, 2011, while the petitioner's criminal case was pending before the trial court, General Statutes § 18-98e[2] became effective, pursuant to which the respondent had discretion to award risk reduction credit toward a reduction of an inmate's sentence, up to five days per month, for positive conduct. General Statutes § 18-98e (a) and (b). The respondent also was vested with discretion to revoke such credit, even credit yet to be earned, for good cause. See General Statutes § 18-98e (b). At the same time, the legislature amended the parole eligibility provision to provide: ‘‘A person convicted of . . . 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 Public Acts 2011, No. 11-51, § 25 (P.A. 11-51). The subsection of § 54-125a addressing parole hearings was similarly amended to account for earned risk reduction credit. General Statutes (Rev. to 2011) § 54-125 (e), as amended by P.A. 11-51, § 25. Accordingly, under the 2011 amendments, earned risk reduction credit was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and the parole eligibility date calculated as a percentage of the sentence would advance in similar measure.

         In May, 2013, the petitioner was sentenced to a total effective sentence of fifteen years incarceration after he pleaded guilty to manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and carrying a pistol without a permit in violation of General Statutes (Rev. to 2009) § 29-35 (a), for the 2010 offense. Under the 2011 amendments to § 54-125a and § 18-98e, any risk reduction credit earned by an inmate, and not subsequently revoked, would have both reduced his sentence and rendered him eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of that reduced sentence.

         Effective July 1, 2013, the legislature again amended § 54-125a. Specifically, with regard to offenses like one of those of which the petitioner was convicted, the legislature eliminated the language that permitted the parole eligibility date to be advanced by the application of any earned risk reduction credit. See P.A. 13-3. The legislature also eliminated the requirement that the board ‘‘shall'' hold a parole hearing after such inmates had completed 85 percent of their definite or aggregate sentences. See P.A. 13-247. Instead, under the revised statute, the board ‘‘may'' hold such a hearing, but ‘‘[i]f a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person. . . .'' General Statutes (Supp. 2014) § 54-125a (e). Thus, under the 2013 amendments, any risk reduction credit earned by an inmate, and not subsequently revoked, would still be applied to reduce his sentence, but would not be applied to advance his parole eligibility date. In other words, he would only be eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of his original sentence (in the petitioner's case, after twelve years and nine months). Moreover, the board may decline to hold a hearing once that eligibility date arises.

         The petitioner thereafter filed his petition for a writ of habeas corpus challenging the application of the 2013 amendments to the calculation of his parole eligibility date and to his right to a hearing on his suitability for parole. In the operative thirteen count petition, the petitioner alleged that he already had been awarded risk reduction credit by the respondent and that prior to July 1, 2013, the respondent had applied that credit to advance the petitioner's parole eligibility date. The petitioner challenged the application of these amendments to him by the respondent[3] as a violation of his constitutional rights under the federal and/or state constitution-specifically, claims related to due process, liberty interests, the ex post facto clause, the separation of powers doctrine and the equal protection clause- and as contrary to the statutory text. Subsequently, the respondent filed a motion to dismiss all counts of the petition.

         After a hearing, the habeas court granted the respondent's motion to dismiss the petition. The habeas court's decision did not analyze each claim separately. Rather, it concluded that all of the petitioner's claims failed on the same basis, namely, that ‘‘[g]iven the speculative nature of [earned risk reduction credit], and the [respondent's] discretion to both award and take [it] away as an administrative tool to manage the inmate population, [the habeas] court . . . lacks subject matter jurisdiction over ...


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