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Breton v. Commissioner of Correction

Supreme Court of Connecticut

December 4, 2018

RANDY BRETON
v.
COMMISSIONER OF CORRECTION

          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, ...


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