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Rivera v. Commissioner of Correction

Court of Appeals of Connecticut

December 11, 2018

LUIS ARIEL RIVERA
v.
COMMISSIONER OF CORRECTION

          Argued September 13, 2018

         Procedural History

         Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Oliver, J.; judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court; thereafter, the court, Oliver, J., issued an articulation of its decision. Affirmed.

          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).

          Alvord, Moll and Eveleigh, Js.

          OPINION

          MOLL, J.

         The petitioner, Luis Ariel Rivera, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus for lack of jurisdiction pursuant to Practice Book § 23-29 (1).[1]On appeal, the petitioner claims that (1) the habeas court's articulation constitutes an improper modification of its original judgment and must be stricken from the record, and (2) the habeas court improperly dismissed his petition for lack of jurisdiction. We conclude that the habeas court lacked jurisdiction over the petition and, accordingly, affirm the judgment.

         The following procedural and statutory background is relevant to this appeal. In 2007, the petitioner was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55.[2] In 2009, the petitioner pleaded guilty to that charge and was sentenced to twenty years of incarceration, execution suspended after fifteen years, followed by five years of probation. As a result of his conviction, the petitioner remains in the custody of the respondent, the Commissioner of Correction.

         In 2011, while the petitioner was incarcerated, the General Assembly enacted No. 11-51, § 22, of the 2011 Public Acts (P.A. 11-51), later codified in General Statutes § 18-98e (original legislation).[3] The original legislation provided that certain classes of prisoners, which included the petitioner, 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'' for certain positive, statutorily described conduct. P.A. 11-51, § 22. The original legislation also conferred on the respondent the discretion to revoke earned (and even unearned) risk reduction credits for good cause. P.A. 11-51, § 22.[4] Because a sentence for a violation of § 53a-55 was not disqualifying at the time, the original legislation rendered the petitioner eligible to earn risk reduction credit toward the advancement of his end of sentence date. In 2015, the General Assembly passed No. 15-216, § 9, of the 2015 Public Acts (P.A. 15-216), which amended § 18-98e to expand the list of persons ineligible to earn risk reduction credit toward the reduction of their sentences, including persons who have been sentenced for violating § 53a-55, [5] the offense of which the petitioner had been convicted. Consequently, once the amendment became effective on October 1, 2015, the petitioner was no longer eligible to earn risk reduction credit toward the reduction of his sentence. See P.A. 15-216, § 9.

         On December 11, 2015, the petitioner, representing himself, filed his petition alleging that the application of P.A. 15-216 resulted in ‘‘[d]iscrimination'' and ‘‘the violation of ex post facto.''[6] He alleged that, as of October 1, 2015, he became ineligible to earn risk reduction credit toward the reduction of his sentence, even though he had been earning such credit since the original legislation went into effect.[7] The petitioner does not claim that he has been deprived of risk reduction credit already earned. On December 21, 2015, the habeas court dismissed the petition, sua sponte, pursuant to Practice Book § 23-29 (1), for lack of jurisdiction ‘‘over the claims set forth in the petition concerning the change in the [p]etitioner's eligibility date for parole consideration.'' The court did not hold a hearing prior to dismissing the petition.

         On December 31, 2015, the petitioner filed a petition for certification to appeal, contending that his petition was dismissed based on a ground not raised therein. On January 4, 2016, the habeas court granted the petition for certification to appeal. On January 11, 2016, the petitioner filed a request for the appointment of counsel and an application for waiver of fees, costs, and expenses. On January 13, 2016, the habeas court granted his request for appointment of counsel and application for waiver. This appeal followed.

         On May 31, 2016, the petitioner filed a motion for articulation, stating that ‘‘[t]he need for an articulation motion arises from the fact that the dismissal refers to a parole eligibility claim, and the claim raised is not such a claim. Articulation is needed because it is not clear how the perceived lack of jurisdiction over a ‘change in the petitioner's eligibility date for parole consideration' pertains to the dismissal of a claim unrelated to parole eligibility.'' On July 12, 2016, the habeas court denied the motion for articulation. On July 19, 2016, the petitioner filed with this court a motion for review of the denial of his motion for articulation. On September 21, 2016, this court granted in part the petitioner's motion for review and ordered the habeas court ‘‘to articulate the legal basis for the court's determination that it lacks jurisdiction over the claims set forth in the petition concerning the change in the petitioner's eligibility for parole consideration.''

         On January 17, 2017, in accordance with this court's order, the habeas court issued an articulation. The habeas court concluded that the application of P.A. 15-216 to the petitioner does not violate the ex post facto clause because it does not increase his term of confinement. The habeas court also concluded that the prospective opportunity to earn risk reduction credit pursuant to § 18-98e, as amended by P.A. 15-216, does not implicate a liberty interest upon which the petitioner may predicate habeas relief because the ...


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