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Torres v. Commissioner of Correction

Court of Appeals of Connecticut

August 15, 2017

CARLOS TORRES
v.
COMMISSIONER OF CORRECTION

          Argued March 8, 2017

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

          Temmy Ann Miller, assigned counsel, with whom, on the brief, was Owen Firestone, for the appellant (petitioner).

          Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).

          Lavine, Alvord and Keller, Js.

         Syllabus

         The petitioner, who had been convicted on a guilty plea of the crimes of burglary in the first degree and conspiracy to commit burglary in the first degree, sought a writ of habeas corpus, claiming that the respondent, the Commissioner of Correction, improperly had failed to give the petitioner risk reduction earned credits for his conduct that occurred during the period of time that he was confined as a pretrial detainee. Pursuant to the statute(§ 18-98e) that was enacted while the petitioner was serving his sentence, the respondent was required to implement a program in which eligible inmates can earn, at the discretion of the respondent, risk reduction earned credits to reduce the length of their sentences. Under the statute, the respondent could retroactively award such credits to inmates. Although the respondent retroactively credited the petitioner with 119 days of risk reduction earned credits on the basis of his conduct that occurred after the date he was sentenced up to the effective date of § 18-98e, the petitioner did not receive any such credits for the time he spent as a pretrial detainee on the ground that he was not eligible to earn credits before the date on which he was sentenced. In his habeas petition, the petitioner alleged, inter alia, that the respondent's application of § 18-98e violated the petitioner's constitutional right to the equal protection of the law. The habeas court rendered judgment denying the habeas petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held:

         1. The habeas court abused its discretion in denying the petition for certification to appeal; because the issues of whether § 18-98e, a relatively recently enacted statute, gives pretrial detainees the opportunity to earn risk reduction earned credits to be applied retroactively to their sentences, and if not, whether that is a violation of a pretrial detainee's constitutional right of equal protection were issues of first impression, the issues were debatable among jurists of reason, and could have been resolved by a court in a different manner.

         2. The petitioner could not prevail on his claim that the habeas court improperly concluded that he was not eligible for risk reduction earned credits as a pretrial detainee and to have the credits applied retroactively to his sentence: the language of § 18-98e, which provides that any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994, may be eligible to earn risk reduction credit, was clear and unambiguous, and demonstrated that the legislature intended to afford only sentenced inmates the opportunity to earn risk reduction earned credits, and, therefore, because the petitioner was not sentenced until September 22, 2009, he was ineligible to earn any risk reduction earned credits before that date, including the time in which he was a pretrial detainee; moreover, the petitioner could not prevail on his claim that § 18-98e violates the equal protection clause because it does not permit indigent individuals who are held in presentence confinement to earn risk reduction credits, as our Supreme Court recently addressed a nearly identical issue and determined that the exclusion of indigent individuals held in presentence confinement from the earned risk reduction credit scheme does not violate equal protection, and, therefore, the habeas court lacked subject matter jurisdiction over the petitioner's claim because it was not one for which habeas relief could be granted.

          OPINION

          LAVINE, J.

         The petitioner, Carlos Torres, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus (second petition). The petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly concluded that he was not entitled to earn ‘‘risk reduction earned credit, '' pursuant to General Statutes § 18-98e, during the period of time he was confined as a pretrial detainee, [1] and improperly concluded that he was not deprived of his right to equal protection guaranteed by the fifth and fourteenth amendments to the United States constitution. We agree that the habeas court abused its discretionby denying the petitioner's petition for certification to appeal, but conclude that it properly denied his second petition. Accordingly, we affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to resolve the petitioner's appeal. The petitioner was arrested on July 30, 2008, for crimes that took place on April 4, 2007, and charged with conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-101 and 53a-48 (a), and burglary in the first degree in violation of § 53a-101. Because of his inability to secure bond, he remained in the custody of the respondent, the Commissioner of Correction, as a pretrial detainee while awaiting the resolution of the pending charges. On September 22, 2009, he pleaded guilty to both charges, and on that same day, the trial court, Gold, J., sentenced him to fifteen years of incarceration, which was to be suspended after eight years, followed by five years of probation. The respondent credited the petitioner with 419 days of presentence confinement jail credits for the time he spent confined as a pretrial detainee from July 30, 2008, to September 21, 2009, pursuant to General Statutes § 18-98d.[2] On October 9, 2009, the petitioner was assigned an offender accountability plan. An offender accountability plan is created for every individual who is sentenced to a term of incarceration and recommends a list of rehabilitative programs the individual should participate in while he or she is incarcerated. The requirements of each plan are unique to each inmate because the recommendations within the plans are based on an inmate's criminal history and the nature of the underlying offense.

         In 2011, while the petitioner was still serving his sentence, the General Assembly passed Public Act 11-51, codified at §18-98e.[3] Section 18-98e, effective July 1, 2011, requires the respondent to implement a program in which eligible inmates can earn, at the discretion of the respondent, risk reduction earned credits to reduce the length of their sentences. Eligible inmates can earn up to five risk reduction earned credits per month only if they adhere to their offender accountability plans, participate in eligible programs and activities, and exhibit good behavior. Notably, the respondent can retroactively award risk reduction earned credits to inmates based on their conduct that occurred on or after April 1, 2006, provided that their conduct met the requirements of subsection (b) of the statute and of the rules of the program created by the respondent.

         In October, 2011, the respondent retroactively credited the petitioner with 119 days of risk reduction earned credits on the basis of his conduct that occurred between October 5, 2009, and October 1, 2011.[4] He was not credited with any risk reduction earned credits for his conduct that occurred during the period of time he was confined as a pretrial detainee between July 30, 2008, and September 21, 2009.

         On July 27, 2015, the petitioner filed his second petition. In count one, he alleged that the ‘‘respondent's application of . . . § 18-98e, deprive[d] the petitioner of his right to have a correct interpretation of the law applied to him'' when it did not give him the ‘‘opportunity to earn or be awarded retroactive risk reduction earned credits for [the] period of time [he] spent as a presentenced detainee.'' In count two, he alleged that the ‘‘respondent's application ...


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