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;
thereafter, the court granted in part the petitioner's
motion for reconsideration and issued a corrected memorandum
of decision, and the petitioner, on the granting of
certification, appealed. Reversed; judgment directed.
James
E. Mortimer, 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).
Palmer, McDonald, Robinson, Mullins and Kahn, Js. [*]
OPINION
PALMER, J.
The
petitioner, Randy Breton, who currently is serving sentences
for certain violent crimes he committed in 2011, brought 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, thereby
requiring the offender to complete 85 percent of his definite
sentence before becoming parole eligible, as applied
retroactively to him, violates the ex post facto clause of
the United States constitution[3] because he was statutorily
entitled to such earlier parole consideration when he
committed the crimes for which he is now incarcerated. The
respondent filed a motion to dismiss, and the habeas court
dismissed the petition, concluding that the petitioner had
failed to establish an ex post facto violation because, inter
alia, the risk that the petitioner will suffer increased
punishment, that is, a longer period of incarceration, as a
result of the 2013 amendment is too remote in light of the
discretionary nature of risk reduction credit and the fact
that such credit, once earned, may be revoked at any time by
the respondent for cause. On appeal, [4]the petitioner renews his
claim of an ex post facto violation. We agree with the
petitioner that the ex post facto clause bars the respondent
from applying the 2013 amendment to the petitioner, and,
accordingly, we reverse the judgment of the habeas court.
The
following undisputed facts and procedural history are
relevant to our resolution of the petitioner's appeal. On
October 27, 2011, the petitioner violated a restraining
order, to which he later pleaded guilty. On December 29,
2011, the petitioner committed several additional offenses
for which he was charged with two counts of assault in the
first degree, one count of assault in the second degree, and
one count of larceny in the third degree. On March 21, 2013,
pursuant to a plea agreement, the petitioner entered a plea
of nolo contendere to the assault and larceny charges, and,
on August 22, 2013, he was sentenced to a total effective
term of imprisonment of twenty years followed by five years
of special parole. The petitioner also received a sentence of
thirty months imprisonment for the restraining order
violation, which term was imposed to run concurrently with
the first sentence.
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 would become eligible for parole. Accordingly, when
the petitioner committed the offenses for which he is
imprisoned, earned risk reduction credit was to be applied by
the respondent both to reduce the length of a violent
offender's sentence and to advance his or her initial
parole eligibility date. See Perez v.
Commissioner of Correction, 326 Conn. 357, 364, 163
A.3d 597 (2017) (‘‘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
2013, after the petitioner was sentenced, the legislature
again amended § 54-125a (b) (2), this time by removing
the phrase ‘‘less any risk reduction credit
earned under the provisions of [§] 18-98e.''
P.A. 13-3, § 59. Thus, under the 2013 amendment, violent
offenders are still eligible to earn risk reduction credit to
reduce their definite sentence, but that credit is no longer
applied to advance their initial parole eligibility date.
Consequently, when P.A. 13-3, § 59, became effective on
July 1, 2013, inmates convicted of a violent offense
thereafter were required to complete 85 percent of their
definite sentence before they became eligible for parole. See
Perez v. Commissioner of Correction, supra,
326 Conn. 365.
In
2016, the petitioner filed an amended petition for a writ of
habeas corpus, claiming that the 2013 amendment to §
54-125a (b) (2), as applied to him, violates the ex post
facto clause because that amendment retroactively increased
the amount of time he would be required to serve before
becoming eligible for parole. At his habeas trial, the
petitioner presented the testimony of Michelle Deveau, a
records specialist with the Department of Correction
(department), who testified that the petitioner at that time
was eligible for risk reduction credit and that, as of the
date of the habeas trial, had earned 158 such credits, the
maximum number he could have earned at that point in his
sentence. Deveau further testified that, although
discretionary, risk reduction credit is awarded by the
respondent routinely and that, each month, the
department's computer system automatically posts it to
the timesheets of eligible inmates.
The
petitioner also adduced testimony from Heidi Palliardi, a
supervisor with the department's Sentence Calculation and
Interstate Management Unit, concerning the risk reduction
credit program. She testified that risk reduction credit is
governed by department administrative directive 4.2A and
that, to remain eligible to receive such credit, inmates must
follow all institutional rules, remain free of any
disciplinary reports and comply with their individual
‘‘offender accountability plan, '' which
is provided to every inmate after sentencing. Palliardi
further explained that risk reduction credit is subject to
forfeiture, after notice and a hearing, for failure to comply
with any of the aforementioned program requirements. Finally,
the petitioner presented the testimony of Richard Sparaco,
the executive director of the Board of Pardons and Paroles
(board), who explained that, under the 2013 amendment to
§ 54-125a (b) (2), ‘‘the [d]epartment . . .
no longer could apply risk reduction earned credits to
[advance] the parole eligibility date for anyone [who] the
board has designated . . . a violent offender.''
Sparaco also stated that parole is granted at the initial
parole hearing in approximately 55 percent of all cases.
Following
the habeas trial, the court issued a memorandum of decision
and dismissed the petition. The court concluded that the
petitioner had failed to establish an ex post facto violation
because, inter alia, the risk that the petitioner would
suffer increased punishment as a result of the 2013 amendment
to § 54-125a (b) (2) was entirely speculative due to the
fact that the award of risk reduction credit is discretionary
and the fact that such credit may be revoked by the
respondent for cause at any time. We agree with the
petitioner that, contrary to the determination of the habeas
court, the prohibition of the ex post facto clause bars the
retroactive application of the 2013 amendment to §
54-125a (b) (2) to him.[5]
Before
addressing the merits of the petitioner's claim, we set
forth the governing legal principles. The ex post facto
clause of the United States constitution prohibits
retroactive application of a law that ‘‘inflicts
a greater punishment, than the law annexed to the crime, when
committed.'' (Emphasis omitted.) Calder v.Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).
In other words, the clause ‘‘forbids the
application of any new punitive measure to a crime already
consummated, to the detriment or material disadvantage of the
wrongdoer.'' Lindsey v.Washington,
301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).
Although a defendant claiming an ex post facto violation need
not establish with certainty that retroactive application of
a new law will result in greater or more onerous punishment,
the United States Supreme Court has ‘‘made it
clear that mere speculation or conjecture that a change in
law will retrospectively increase the punishment for a crime
will not suffice to establish a violation of the [e]x [p]ost
[f]acto [c]lause. See California Dept. of Corrections
v.Morales, 514 U.S. 499, 509 [115 S.Ct. 1597');">115 S.Ct. 1597,
131 L.Ed.2d 588] (1995). [Rather, the] touchstone of [the]
[c]ourt's inquiry is whether a given change in law
presents a sufficient risk of increasing the measure of
punishment attached to the covered crimes.''
(Internal quotation marks omitted.) Peugh v.United States, 569 U.S. 530, 539, 133 S.Ct. 2072,
186 L.Ed.2d 84 (2013). Put differently, the risk of an
adverse impact on a prisoner's expected term of
confinement must be ‘‘genuine'';
Johnson v.Commissioner of Correction, 258
Conn. 804, ...