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Garner v. Commissioner of Correction

Supreme Court of Connecticut

December 4, 2018


          Argued February 21, 2018

         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 dismissing the petition in part and denying the petition in part, from which the petitioner, on the granting of certification, appealed. Reversed in part; judgment directed.

          James E. Mortimer, assigned counsel, for the appellant (petitioner).

          Steven R. Strom, assistant attorney general, and Sarah Hanna, assistant state's attorney, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).

          Palmer, McDonald, Robinson, Mullins and Kahn, Js. [*]


          PALMER, J.

         Following his guilty plea to certain violent crimes that he committed on March 22, 2012, the petitioner, Charles Garner, was sentenced to a lengthy prison term. Thereafter, he commenced 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;[1] which eliminated risk reduction credit awarded pursuant to General Statutes § 18-98e[2] from the calculation of a violent offender's initial parole eligibility date, as applied retroactively to him, violates the ex post facto clause of the United States constitution, [3] because, under the version of § 54-125a in effect when he committed his offenses, he was entitled to have any such credit that he had earned applied to advance his initial parole eligibility date. The petitioner also claimed that defense counsel in his criminal case rendered ineffective assistance by failing to provide the sentencing court, Alexander, J., with certain evidence in mitigation of his sentence. The habeas court, Fuger, J., rejected the petitioner's ex post facto claim, concluding, inter alia, that the risk that the petitioner would suffer a longer period of incarceration as a result of the 2013 amendment was too remote because an award of risk reduction credit is discretionary and any such awarded credit may be revoked by the respondent for cause at any time. The habeas court also concluded that the petitioner could not prevail on his ineffective assistance claim because he did not establish that counsel's performance was either unreasonable or prejudicial. On appeal, [4] the petitioner challenges both of these determinations by the habeas court. Although we reject the petitioner's ineffective assistance claim, we agree that the ex post facto clause bars the respondent from applying the 2013 amendment retroactively to the petitioner. Accordingly, we reverse in part the judgment of the habeas court.

         The following undisputed facts and procedural history are necessary to our resolution of the petitioner's appeal. In the early evening of March 22, 2012, the petitioner arrived at the home of the female victim, his former next-door neighbor whom he had known since childhood, to watch television with her. After spending the evening with the petitioner, the victim asked him to leave because she wanted to go to sleep. The petitioner then struck the victim on the head with a kitchen chair, knocking her unconscious and causing fractures to her eye socket and cheekbone, injuries that required the victim to undergo facial reconstruction and plastic surgery. Before fleeing, the petitioner stole money, credit cards and jewelry from the victim's home.

         The petitioner was arrested several days later, and, on September 18, 2012, in accordance with a plea agreement, he pleaded guilty under the Alford doctrine[5] to one count of assault in the first degree and one count of burglary in the first degree. He was represented by Attorney William O'Connor. Under the plea agreement, the state agreed to a sentence not to exceed twenty years of imprisonment. The petitioner retained the right to argue at the time of sentencing that a portion of his sentence should consist of a term of special parole.

         At the petitioner's sentencing hearing on November 29, 2012, the state recommended that he receive the maximum sentence of twenty years of imprisonment. The state based its recommendation on the petitioner's criminal history, the severity of the assault, the petitioner's prior failure at rehabilitation, his ‘‘feigned remorse'' for his actions, and a lack of compelling mitigation evidence. The victim also gave a statement to the sentencing court in which she discussed her twenty-nine year relationship with the petitioner, explaining that they first met when she and her husband moved next door to the home where the petitioner resided with his parents. The victim further explained that, although the petitioner had been a child with ‘‘impulse control problems and anger management issues'' that ultimately led to criminal activity, she always endeavored to support him, and did so up to and including the evening of the attack, when he arrived at her door ostensibly seeking company and conversation. After describing the petitioner's assault on her and the medical and related challenges it had created, the victim implored the court to impose the maximum sentence. The victim's son also addressed the court, and he, too, requested that the petitioner receive the maximum sentence.

         The petitioner's attorney, O'Connor, presented the court with certain mitigation evidence, including the presentence investigative report, a memorandum to aid in sentencing prepared by a social worker employed by the Office of the Public Defender, and a mental health evaluation of the petitioner prepared by Andrew W. Meisler, a clinical and forensic psychologist. Each of these documents detailed the significant challenges that the petitioner had faced throughout his life, which included an alcoholic, physically abusive father, various mental health diagnoses including schizoaffective disorder, an instance of serious sexual abuse as a child, a lifelong struggle with addiction to alcohol and drugs, and difficulty maintaining employment. O'Connor also submitted several letters of support for the petitioner written by friends and family, all of whom described the petitioner as a kind and decent person whose attack on the victim was out of character and undoubtedly the result of his untreated mental illness. Although supporters of the petitioner attended his sentencing, none spoke on his behalf.[6]

         Before imposing the petitioner's sentence, the court noted, first, that it had considered all of the sentencing materials that the parties had submitted. The court then discussed the ‘‘extremely violent'' nature of the assault on the victim and the fact that the petitioner had inflicted violence on someone who had shown him compassion throughout his life. The court also disagreed with the petitioner's counsel and family members that the petitioner had never ‘‘displayed a degree of violence in the past, '' observing that, before the attack on the victim, the petitioner had exhibited ‘‘at least [a] propensity or proclivity to engage in conduct that creates a serious risk of injury to person . . . .'' Finally, the court expressed concern about the petitioner's ‘‘long history of . . . criminal conduct'' and failure to comply with the treatment recommendations of various mental health professionals, including his failure to take the psychotropic medications that had been prescribed to him. In light of these considerations, the court sentenced the petitioner to a total effective prison term of eighteen years followed by two years of special parole, a sentence the court deemed necessary to protect society and to ensure that the petitioner's ‘‘rehabilitative efforts'' are ‘‘strictly supervised in a correctional setting and then by special parole.''

         The following additional facts, which are set forth in the companion case of Breton v.Commissioner of Correction, 330 Conn., A.3d (2018), also released today, are relevant to the petitioner's ex post facto claim. ‘‘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 were 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 ...

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