Opinion
CV144005807S
10-26-2016
Charles Garner #220662 v. Warden
UNPUBLISHED OPINION
The petitioner is represented by assigned counsel, The Day Law Firm, LLC. Attorney James E. Mortimer, a member of that law firm, represents the petitioner in this habeas corpus matter, as well as in another matter this court is deciding today-- Breton v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-14-4006010-S. Breton raises only an ex post facto claim, which is identical to the claim raised by Mr. Garner in count two. The evidence presented to this court in the separate habeas trials on the ex post facto claims was virtually and substantively identical. Consequently, this court's discussions and analyses of the ex post facto claims in Breton and Garner are the same.
Stanley T. Fuger, Jr., Senior Judge.
The petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed on November 20, 2013, and amended several times by assigned counsel. The fourth amended petition raises claims in two counts: first, that the petitioner received ineffective assistance of counsel; second, that the petitioner's right under Article I, Section 10 of the United States Constitution against ex post facto laws was violated. The respondent's return denies these claims, that the petitioner is entitled to habeas corpus relief, and asserts several special defenses. The petitioner filed a reply that is responsive to the special defenses.
On May 31 and June 21, 2016, the parties appeared before the court for a trial on the merits. At the trial, the petitioner testified and presented the testimonies of: his former trial counsel, Attorney William O'Connor; William Brathwaite, a relative of the petitioner; Department of Correction (DOC) Records Specialist II Michele Deveau; Counselor Supervisor Heidi Palliardi; and Executive Director of the Board of Pardons and Paroles Richard Sparaco. The petitioner entered seven documents into evidence; the respondent entered twenty documents into evidence. The parties were ordered to file post-trial briefs that were to address specifically the court's subject matter jurisdiction over the risk reduction earned credits (RREC) claim in count two. Both parties filed their respective post-trial briefs.
After reviewing the evidence and legal arguments made by the parties, the court concludes, for the reasons articulated more fully below, that the petitioner has failed to prove ineffective assistance of counsel. The claim in count two, however, must be dismissed for lack of subject matter jurisdiction and because there is no habeas corpus relief that can be granted.
FACTUAL FINDINGS
The relevant material facts are not in dispute. On September 18, 2012, in docket number CR12-0658469-T, the petitioner pleaded guilty under the Alford doctrine to one count of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(2). The offense date for these offenses is March 22, 2012. The petitioner's sentence exposure for these two charges was a mandatory minimum of five years and a maximum of forty years of incarceration. The plea agreement negotiated with the state and accepted by the court, however, resulted in a cap of twenty years of incarceration with the right to argue for less. The court, Alexander, J., thoroughly canvassed the petitioner and found that his pleas were knowing, voluntary, intelligent, and with the competent assistance of counsel. The court ordered a presentence investigation report and continued the matter for sentencing.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On November 29, 2012, the parties appeared before Judge Alexander for the sentencing proceeding. Judge Alexander indicated that she had reviewed all the documents prepared and submitted to her for consideration in devising an appropriate sentence. These documents included the presentence investigation report, a mental health report by Dr. Andrew Meisler prepared after evaluating the petitioner, a memorandum in aid of sentencing by the public defender social worker, and five letters of support from the petitioner's family members and friends. Attorney O'Connor argued that a twelve-year sentence would be appropriate. The state presented numerous letters in support of its argument that the petitioner should receive the maximum sentence permissible under the plea agreement (i.e., twenty years). The state, the defense, and the victim and her supporters presented arguments and statements relevant to the sentencing. Judge Alexander sentenced the petitioner to a total effective sentence of eighteen years of incarceration, followed by two years of special parole, and indicated that the deviation from the maximum was . . . to have some kind of assurance in society that when he is released, he's set up with a treatment provider." Petitioner's Exhibit 5 (Transcript, November 29, 2012), p. 30. The petitioner was notified of his right to sentence review. Respondent's Exhibit C. Although he filed an application for review of his sentence, the application was withdrawn on March 27, 2013.
DOC is responsible for calculating the petitioner's discharge date, which can vary depending on the application of any credits earned by the petitioner. One credit received by the petitioner is RREC pursuant to General Statutes § 18-98e, which was enacted by Public Acts § 11-51, effective July 1, 2011. Except for excluded offenses enumerated in § 18-98e(a), inmates may be eligible to earn RREC and thereby reduce their sentence. General Statutes § 18-98e has been amended once since it was first enacted. See Public Acts § 15-216, § 9. The changes implemented through P.A. § 15-216, § 9 do not impact the resolution of the petitioner's claims.
As provided by subsection (b) of § 18-98e, such credits may be earned " for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and (2) the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. If an inmate has not earned sufficient risk reduction credit at the time the commissioner or the commissioner's designee orders the loss of all or a portion of earned credit, such loss shall be deducted from any credit earned by such inmate in the future."
At the time the petitioner committed his offenses, General Statutes § 54-125a(b)(2)(B) (Rev. to 2011) provided that: " A person convicted of . . . an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e." The petitioner's offenses without a doubt involved the use of physical force against another person, as he violently assaulted the victim with a chair.
P.A. § 11-51, § 22 enacted RREC and took effect July 1, 2011. That section was designated as General Statutes § 18-98e. It is readily apparent from the language of § 54-125a(b)(2)(B) (Rev. to 2011) that earning RREC had the potential of making violent offenders parole eligible below the eighty-five per cent threshold. This would conflict with § 54-125a(a), which does not permit violent offenders from being parole eligible until they have served eighty-five per cent of their sentence.
In 2013, Public Acts § 13-3, § 59, repealed § 54-125a and substituted that statute in its entirety effective July 1, 2013. General Statutes § 54-125a (Rev. to 2013) differed from the version in effect at the time of the petitioner's offense date in that subsection (b)(2)(B) was amended and the phrase " . . . less any risk reduction credit earned under the provisions of section 18-98e." was deleted. This deletion made any release earned through RREC consistent with the provision of § 54-125a that violent offenders not be parole eligible before the eighty-five percent threshold of their sentence. Thus, the change to subsection (b)(2)(B) harmonized that subsection with subsection (a) of § 54-125a. Inmates such as the petitioner may earn RREC to reduce the maximum release date; however, that release date cannot be reduced below the eighty-five percent threshold without violating General Statutes § 54-125a(a).
Additional facts will be addressed below as necessary to discuss the petitioner's allegations.
DISCUSSION
Count One--Ineffective Assistance of Counsel
The first count of the fourth amended petition alleges ineffective assistance of counsel. The allegations of deficient performance aver that Attorney O'Connor failed to provide the sentencing court with mitigating evidence concerning the petitioner's character, through his family members, Virginia Carter, William Brathwaite, Cheryl Brathwaite and Barbara Brathwaite, and failed to consult with and advise him regarding his right to sentence review and failed to pursue the same. The petitioner asserts that there is a reasonable probability that, but for Attorney O'Connor's deficient performance, the result of the criminal proceedings would have been different and more favorable to the petitioner.
" [T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial . . . In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition." (Emphasis in original; internal quotation marks omitted.) Gudino v. Commissioner of Correction, 123 Conn.App. 719, 723-24, 3 A.3d 134, cert. denied, 299 Conn. 905, 10 A.3d 522 (2010).
" The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). The failure to present testimony from potential or necessary witnesses, therefore, is fatal to ineffective assistance of counsel claims premised on the failure to investigate such witnesses. See, e.g., Rodriguez v. Commissioner of Correction, 151 Conn.App. 232, 238-39, 94 A.3d 722, cert. denied, 314 Conn. 910, 100 A.3d 849 (2014) (failure to present evidence from alibi witnesses fatal to failure to investigate claim), citing Norton v. Commissioner of Correction, 132 Conn.App. 850, 859, 33 A.3d 819 (petitioner cannot prevail on claim that trial counsel was ineffective for failing to investigate witnesses when " the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them" and thus " failed to establish that further investigation of these witnesses would have been helpful to his defense"), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012); Lambert v. Commissioner of Correction, 100 Conn.App. 325, 327-28, 918 A.2d 281 (prejudice not established where petitioner failed to call alibi witness at habeas trial or offer evidence as to what [witness] would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn.App. 555, 557, 764 A.2d 1291 (2001) (petitioner cannot establish ineffective assistance of counsel for failure " to investigate certain witnesses" when " [n]one of those witnesses testified at the habeas trial" and no evidence introduced as to " how that testimony may have supported his claims").
The court makes the following additional factual findings. The underlying offenses involved a violent attack in which the victim was rendered unconscious after the petitioner struck her on the head and face with a chair. A PSI was prepared for the sentencing and Attorney O'Connor submitted Dr. Meisler's mental health evaluation, public defender social worker Montagna's memorandum in aid of sentencing, and five letters of support from the petitioner's family members and friends. Petitioner's Exhibit 5 (Transcript, November 29, 2012), p. 2. The petitioner's family members who submitted supporting letters included: his sister, Yvette Garner; his father, Charles P. Garner, Sr.; and his cousins, Valerie Brathwaite and Cheryl DeSorbo. Petitioner's Exhibit I. Attorney O'Connor and the petitioner addressed the court at sentencing; however, none of the petitioner's family members, including his sister and father, or friends addressed the court. After Judge Alexander asked if " . . . there [was] anyone who wishe[d] to speak on behalf of Mr. Garner, " Attorney O'Connor responded that " [t]here [were] people here to support him but they do not wish to speak . . ." (Emphasis added.) Petitioner's Exhibit 5 (Transcript, November 29, 2012), p. 24.
At the habeas trial, Attorney O'Connor testified that he reached out to the petitioner's family members to rally their support for him at the sentencing. William Brathwaite, another of the petitioner's cousins, testified about the petitioner's struggles in life, that he employed the petitioner and trusted him with clients. Mr. Brathwaite also was with the petitioner shortly before he brutally attacked the victim.
The petitioner's post-trial brief acknowledges Attorney O'Connor's foregoing efforts at sentencing. There was nothing presented at the habeas trial that was new or substantively different from what was presented to the sentencing court. The respondent's post-trial brief aptly describes William Brathwaite's habeas trial testimony as repetitive of what was presented to the sentencing court in letters from the petitioner's family members. This court agrees with the respondent's description of the evidence presented by the petitioner as being repetitive or duplicative.
The petitioner has not, in this court's analysis, presented any evidence that shows that Attorney O'Connor's performance was deficient, nor that there is a reasonable likelihood that the sentence imposed would have been any different. Hilton v. Commissioner of Correction, 161 Conn.App. 58, 77, 127 A.3d 1011 (2015), cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016), citing and quoting Davis v. Commissioner of Correction, 147 Conn.App. 343, 360, 81 A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d 467 (2014); see also Vega v. Commissioner of Correction, 103 Conn.App. 732, 733-37, 930 A.2d 75 (2007), cert. denied, 285 Conn. 906, 942 A.2d 416 (2008) (" Criminal defendants have a constitutional right to effective assistance of counsel during the sentencing stage . . . To establish prejudice, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . A claimant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.)) The court concludes that the petitioner has failed to meet his burden of proof that Attorney O'Connor was ineffective at sentencing.
The petitioner's only other basis for ineffective assistance by Attorney O'Connor is that he was deficient when it comes to the petitioner pursuing sentence review. The court finds the following facts regarding this claim. The petitioner filed an application for sentence review, but subsequently withdrew the application. The petitioner's testimony at the habeas trial in no way supports the conclusion that he wanted to proceed with the application while it was pending or even presently. The petitioner is aware that the Sentence Review Division has the authority to increase he sentence. Thus, even though the sentencing court used two of the twenty years available for special parole instead of incarceration, those two years could be changed by the Sentence Review Division panel to increase the to-serve portion to the twenty-year cap pursuant to the plea agreement. The petitioner, furthermore, was canvassed by the Sentence Review Division panel about the withdrawal of his application.
This case is unlike cases such as James L. v. Commissioner of Correction, 245 Conn. 132, 145, 712 A.2d 947 (1998), and Andrades v. Commissioner of Correction, 108 Conn.App. 509, 516, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008), in which counsel was found to be ineffective regarding sentence review. In James L., counsel had failed to both have a meaningful discussion with the defendant about sentence review and file an application. In Andrades, there was no evidence establishing that counsel had perfected sentence review by filing an application and the petitioner credibly testified that he wanted to pursue sentence review. The present matter is more akin to Hilton v. Commissioner of Correction, supra, 161 Conn.App. 84-85, where there was no credible evidence that the petitioner would have pursued sentence review and was willing to run the risk of receiving an increased sentence.
Given the foregoing, the court concludes that the petitioner has failed to prove both deficient performance by Attorney O'Connor and that the petitioner was somehow prejudiced by not pursuing sentence review. Although the petitioner alleges that counsel failed to consult with him and advise him about sentence review, the evidence is clearly to the contrary. The petitioner in fact initially pursued sentence review and then knowingly and willingly withdrew his application. There is no indication whatsoever that there is a reasonable likelihood that his sentence would have been reduced. This second basis for ineffective assistance of counsel, therefore, must also be denied because the petitioner has failed to meet his burden of proof.
Count Two--Ex post facto/risk reduction earned credits
In count two the petitioner alleges that the change to General Statutes § 54-125a(a) implemented in 2013, which in essence closed a loophole that potentially might permit a violent offender to be released prior to the eighty-five per cent threshold, violates the prohibition against cx post facto law. This court will first summarize the legal standards that apply to ex post facto and parole eligibility claims.
" The United States Supreme Court has recognized that 'a law need not impair a " vested right" to violate the cx post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements . . . The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.' (Citations omitted.) Weaver v. Graham, 450 U.S. 24, 29-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Lynce v. Mathis, 519 U.S. 433, 445, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) ('[the] retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are one determination of [the] petitioner's prison term . . . and . . . [the petitioner's] effective sentence is altered once this determination is changed' [internal quotation marks omitted]).
" The United States Supreme Court also has recognized that '[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.' Garner v. Jones, 529 U.S. 244, 253, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Rather, '[t]he controlling inquiry . . . [is] whether retroactive application of the change in [the] law create[s] a sufficient risk of increasing the measure of punishment attached to the covered crimes.' (Internal quotation marks omitted.) Id., 250; see also id., 251 ('[t]he question is whether the [new law] creates a significant risk of prolonging [the inmate's] incarceration'). Thus, unlike a due process claim, 'the . . . focus [of which is] primarily on the degree of discretion enjoyed by the [governmental] authority, not on the estimated probability that the authority will act favorably in a particular case'; (internal quotation marks omitted) Giaimo v. New Haven, 257 Conn. 481, 508-09, 778 A.2d 33 (2001), quoting Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 323, 627 A.2d 909 (1993); the primary focus of an ex post facto claim in the probability of increased punishment. To establish a cognizable claim under the ex post facto clause, therefore, a habeas petitioner need only make a colorable showing that the new law creates a genuine risk that he or she will be incarcerated longer under that new law than under the new law. Having made a colorable showing that he likely will serve more prison time as a result of the extension of his parole eligibility date from 50 percent to 85 percent of his sentence, the petitioner has established a cognizable claim of an ex post facto violation . . . We, therefore, conclude that the habeas court had jurisdiction over the petitioner's habeas petition." (Footnote renumbered; footnote omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 817-19, 786 A.2d 1091 (2002).
" Of course, we recognize that the relative degrees of discretion enjoyed by the governmental authority under the old law and under the new law may be relevant in determining the probability of increased punishment under the new law. The essential point, however, is that, even if the governmental authority enjoyed broad discretion under the old law, that fact alone would not necessarily foreclose a claim under the ex post facto clause."
The Appellate Court recently discussed the ex post facto standard in Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015), in which the petitioner had raised a RREC claim. " In Peugh v. United States, __ U.S. __, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), the United States Supreme Court referred to its 1798 opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 3 Dall. 386 (1798), in which Justice Samuel Chase, speaking for the majority, outlined the nature of an ex post facto law as follows: '[First.] Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [Second.] Every law that aggravates a crime, or makes it greater than it was, when committed. [Third.] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [Fourth.] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.' (Emphasis omitted.)
" A review of Justice Chase's discussion of the nature of an ex post facto law reveals, as a significant common feature, that for a law to violate the prohibition, it must feature some change from the terms of a law in existence at the time of the criminal act. That feature is entirely sensible, as a core purpose in prohibiting ex post facto laws is to ensure fair notice to a person of the consequences of criminal behavior. As explained by the United States Supreme Court, laws that impose a greater punishment after the commission of a crime than annexed to the crime at the time of its commission run afoul of the ex post facto prohibition because such laws implicate the central concerns of the ex post facto clause: 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.' Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). None of those concerns pertains to the appeal at hand.
" Here, the petitioner makes no claim that legislation regarding eligibility for parole consideration became more onerous after the date of his criminal behavior. Rather, he claims that new legislation enacted in 2011, several years after his criminal conduct and subsequent incarceration, conferred a benefit on him that was then taken away in 2013. Such a claim, however, does not implicate the ex post facto prohibition because the changes that occurred between 2011 and 2013 have no bearing on the punishment to which the petitioner's criminal conduct exposed him when he committed a robbery in 2003.
" In support of his claim, the' petitioner relies on our Supreme Court's opinion in Johnson v. Commissioner of Correction, [ supra, 258 Conn. 804]. The petitioner's reliance is misplaced. In Johnson, our Supreme Court stated that the petitioner had asserted a cognizable ex post facto claim when he alleged that application of the '85 percent rule' to his circumstances violated the ex post facto prohibition. Id., 818-19. A review of Johnson reveals that, in 1995, when Dwayne Johnson committed the crimes for which he was sentenced in 1996, similarly situated offenders were first eligible for parole consideration after completing 50 percent of their sentences but that, as a result of legislation enacted after his criminal conduct, Johnson would not be eligible for parole until completing 85 percent of his sentence. Id., 809-10. Although the court acknowledged that an inmate has no liberty interest in being granted parole, the court found, nevertheless, that the habeas court had jurisdiction because Johnson had made a cognizable ex post facto claim by asserting that the change in the law between the date of his criminal act and his later incarceration violated the prohibition against ex post facto penal legislation. Id., 818-19. Neither the underlying facts in Johnson nor the court's reasoning supports the petitioner's claim in the present case.
" In Johnson, the court, in determining that Johnson had made a colorable ex post facto claim observed: 'Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.' (Internal quotation marks omitted.) Id., 817.
" Here, unlike in Johnson, the petitioner makes no claim that a change in the law after 2003 extended the length of his incarceration or delayed the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct. In sum, he makes no claim rooted in ex post facto jurisprudence. Thus, unlike the petitioner in Johnson, the petitioner in the present case has not made a colorable ex post facto claim. A merely conclusory allegation of an ex post facto violation without any legally supporting factual allegations is insufficient to constitute a colorable ex post facto claim.
" Indeed, it appears that the petitioner has benefitted from the enactment of . . . 54-125a and 18-98e because he has received risk reduction credits toward a reduction of his sentence, a benefit not available to him at the time he committed the robbery for which he is serving a sentence of imprisonment."
" Shorn of its ex post facto designation, the petitioner's claim is no more than a complaint that long after he committed robbery and was sentenced, favorable legislation was enacted that gave him, at the respondent's discretion, an opportunity for earlier parole consideration but legislation was later repealed, putting him back into the same position he had been in in 2003 and 2005. The petitioner, however, has no liberty interest in parole eligibility, and, therefore, such a claim does not implicate the jurisdiction of the habeas court. See Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007) (parole eligibility under . . . 54-125a does not constitute cognizable liberty interest sufficient to invoke habeas court's jurisdiction) . . ." (Footnote renumbered). Petaway v. Commissioner of Correction, supra, 160 Conn.App. 731-34.
The petitioner's post-trial brief posits that this court has jurisdiction over his claims because he is raising a colorable ex post facto claim. Central to this argument is the petitioner's additional assertion that the changes implemented in 2013 via Public Act retroactively increased the measure of his punishment. To wit: " There is no good faith argument that P.A. 13-3 § 59 has not retroactively altered the early release provisions in effect at the time of the petitioner's offenses and plea. By its very terms, the statutory changes affect those convicted of 'violent offenses, ' necessarily implicating the predicate criminal acts for which the petitioner stands convicted." (Footnote renumbered.) Petitioner's Post-Trial Brief, p. 8. This court disagrees with the petitioner's contentions.
" Moreover, there is no clear expression of legislative intent for the law to have retroactive effect. Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000)."
At the time the petitioner committed his offenses (i.e. March 22, 2012), General Statutes § 54-125a(b)(2)(B) (Rev. to 2011) provided that violent offenders would not be parole eligible until they had served " eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e ." (Emphasis added.) The petitioner's claim and arguments necessitate that the phrase " less any risk reduction credit earned" operates to reduce, or advance, the parole eligibility date so that it is below the eighty-five percent threshold. That is, parole eligibility occurs at eighty-five percent of the definite sentence after the application of risk reduction credit earned. The statute can also be understood, however, to provide that risk reduction credits can be earned and applied to the definite sentence, and that violent offenders are eligible only at eighty-five percent of the definite sentence. This latter interpretation would be consistent with the legislature's intent to have violent criminals serve a greater portion of their sentences than non-violent offenders, and would also be consistent with the changes enacted via Public Act § 13-3, § 59. This court must, in light of the petitioner's arguments and given these dichotomous constructions, interpret the statute to determine its meaning.
" 'The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . .' (Citations omitted; footnote in original; internal quotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371-73, 977 A.2d 650 (2009)." State v. Heredia, 310 Conn. 742, 755-56, 81 A.3d 1163 (2013).
" General Statutes § 1-2z provides: 'The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.'"
Turning first to the text of General Statutes § 54-125a(b)(2)(B) (Rev. to 2011), this court must determine whether the phrase " less any risk reduction credit earned" applies to the definite sentence or eighty-five percent of the definite sentence. This court concludes that the phrase " less any risk reduction credit earned" only applies to the definite sentence. The legislature's concern that violent offenders serve a significant portion of their respective definite sentences through what are described as " truth in sentencing" laws resulted in parole eligibility being set at the eighty-five percent threshold. An interpretation that leads to risk reduction credits earned allowing someone to be parole eligible prior to eighty-five percent of the definite sentence imposed for violent offenses would yield an absurd result. The legislature would not enact clear legislation that violent offenders serve at least eighty-five percent of their definite sentences and then also permit them to be parole eligible before the eighty-five percent mark.
Public Acts 1995, No. 95-255, which raised to the parole eligibility to eighty-five percent for violent offenders, was titled " An Act Concerning Truth In Sentencing." See, e.g., Robinson v. Commissioner of Correction, 258 Conn. 830, 831 n.1 786 A.2d 1107 (2002). Robinson was a companion case to Johnson regarding 85% parole eligibility. Id.
The only statute that is related to § 54-125a(b)(2)(B) is § 18-98e, the statute implementing risk reduction earned credits. General Statutes § 18-98e was amended once in 2015, but that amendment has no impact on the petitioner's claim and this court's analysis. The most noteworthy aspects of § 18-98e are the absolute discretion DOC has to award and remove such credits, the linkage and dependence of receiving credits based on adherence by an inmate to his or her offender accountability plan, and that the credits are intended to control an inmate's conduct and behavior through such credits. Parole is not mentioned anywhere in § 18-98e. However, § 18-98e (a) indicates that an inmate " . . . may be eligible to earn risk reduction credit toward a reduction of such person's sentence . . ."
This court concludes that a reasonable understanding of the word " sentence" in subsection (a) to mean " definite sentence." Construing subsection (a) in that manner leads to the additional and consistent conclusion that the related statute, § 54-125a(b)(2)(B), permits the use of risk reduction earned credit to reduce the definite sentence. These constructions lead to the further conclusion that an inmate convicted of a violent offense is parole eligible at eighty-five percent of the definite sentence. Stated somewhat differently, risk reduction earned credits cannot be used to bring a violent offender's parole eligibility date below eighty-five percent of the definite sentence, and a violent offender cannot be parole eligible prior to eighty-five percent of a definite sentence.
Extratextual sources support the conclusion that the legislature has never intended that violent offenders be parole eligible, pursuant to § 54-125a(b)(2)(B), prior to serving eighty-five percent of their definite sentence, whether or not risk reduction earned credits are applied. On April 3, 2013, the Senate discussed SB 1160, which eventually was enacted via Public Acts 13-3. Senator Markley introduced an amendment that would have eliminated the risk reduction earned credit program. Senator Williams remarked that he opposed the amendment and indicated the following to Senator Markley:
The good news is that the--the language which affects the risk reduction credit in our bill, which prohibits anyone who's been convicted of a violent crime as defined in the statute from being released prior to serving a minimum of 85 percent of their original sentence, that language is identical to language in Raised Bill 6657 of the current session, sponsored by your colleagues, Senators, Kissell and Welch. That bill had a public hearing before the Judiciary Committee on March 22nd.
Senate Bill No. 1160, 2013 Sess., remarks of Senator Donald E. Williams, Jr.
The March 22nd, 2013, Judiciary Committee hearing is of additional and greater significance, and is discussed below. After comments by other Senators, Senator Markley's amendment failed after a roll call vote, with twenty-two votes against the amendment and fourteen votes for the amendment. Eventually, SB 1160, § 59, became Public Acts 13-3, § 59, embodying the statutory language put at issue in the present habeas corpus petition.
Raised Bill 6657 was the subject of a public hearing before the Judiciary Committee on March 22, 2013, but the public hearing began after a scheduled informational hearing. " [T]he purpose of this informational hearing [was] the annual review of the criminal justice system, prison overcrowding, and re-entry strategies." At the informational hearing the Judiciary Committee heard comments and explanations from officials such as Undersecretary of Criminal Justice, Policy and Planning Division Michael Lawlor, then outgoing Commissioner of Correction Leo Arnone and Director of Offender Classification Karl Lewis. A critical component of the information they were presenting dealt with explaining to members of the Judiciary Committee how risk reduction earned credits worked. Of particular concern was ensuring that no violent offenders be parole eligible and/or released into the community before they had served eighty-five percent of the to-serve portion of their sentence.
Judiciary Committee Hearing, March 22, 2013, remarks of Representative Daniel J. Fox.
Undersecretary Lawlor first summarized various areas of progress in the criminal justice area. When it came to explaining how risk reduction earned credits were affecting the release of violent offenders into the community, a significant concern to members of the Judiciary Committee, Undersecretary Lawlor indicated the following:
The bottom line, and this is very important to keep in mind, is that violent offenders are not being released early under the Risk Reduction Earned Credit System. They are not being released prior to the 85 percent mark on their original sentence . . .
And there clearly has been a lot of controversy and a lot of misinformation about the Risk Reduction Earned Credit System . . .
And there's constantly over the last two years, and this is very appropriate, this is your oversight rule, and you should be doing this. But to my knowledge not a single example has been identified of a violent offender, an 85 percent guy, being released from prison before they hit the 85 percent mark.
Judiciary Committee Hearing, March 22, 2013, remarks of Undersecretary Michael Lawlor.
Undersecretary Lawlor then concluded his remarks and let outgoing Commissioner of Correction Arnone explain certain issues in greater detail, most importantly RREC.
Commissioner Arnone described RREC and how it is used as a tool to administer the inmate population:
You have to do the programs, you have to do the programs we tell you to do. And even after you've done the programs, if we feel there's a threat to the community, we take the time away. We take time away two or three times every single week.
Last week alone we took 350 days credit away from an inmate who we did not feel secure enough to allow to go into the community. Risk Reduction Credit is also connected with our new assessment program that's rolling out in the next few months. We have partnered with the Board of Parole for the first time in the history, I believe, and I've only got 39 years history in this business.
And I have never seen the Parole Department and the Corrections Department work as closely together as we are working today. We agree--we agree on an assessment tool. We're moving forward to implement that assessment tool. So not only will we be making decisions based on what we think as professionals is the right decision, but we'll also be making decisions based on empirical evidence and a tested Risk Reduction Program.
***
[I]ncident reports are down. Disciplinary reports are down. Workers' comp [claims by DOC staff are] down. Ever since this program [i.e., RREC] took effect we've had much better compliance in the facilities and our staff has been safer for it.
Judiciary Committee Hearing, March 22, 2013, remarks of Commissioner of Correction Leo Arnone.
Thereafter, other information was presented to the Judiciary Committee, including information about recidivism rates.
The next DOC official to present information to the Judiciary Committee was Karl Lewis, the Director of Offender Classification. Director Lewis provided important details about RREC:
Quite correctly this morning, the bulk of the analysis has dealt with implementation concerns as well as recidivism, which is quite correctly our focus. But we would be remiss if we did not point out the role that Risk Reduction Earned Credit has in terms of safe facilities.
Commissioner Arnone has made very clear from the beginning of the rollout that an inmate may forfeit, and will forfeit, any and all Risk Reduction Earned Credit for instances of institutional misconduct . . .
And consistently Commissioner Arnone has articulated that these offenders will be subject to the loss of any or all RREC. So this becomes an incentive and disincentive for behavior, for a population, quite frankly, that doesn't have oftentimes a record of make [sic] good decisions.
So we find that as a result of this incentive or disincentive, if you will, our disciplinary violations of all types have declined about 11 percent since the implementation of RREC. That may not seem like a large number to you, but it is a large number, and I assure you that the folks who work in our correctional institutions, our line officers, as well as our counselors and all of our support staff folks feel that. An inmate does not want to lose this time that he has invested in as well . . .
***
Inmates do not earn RREC and will forfeit RREC if they are out of compliance with what we call their offender compellability [sic] plan. Which is essentially a contract that the inmate signs at the beginning of the incarceration that says, you will do the following things, including you will behave yourself, but also that you will address your criminogenic needs. You will address those things that caused you to be remanded to the Commissioner of Correction. And if the inmate is not in compliance with that OAP [i.e., Offender Accountability Plan], then inmate is subject to forfeiture and not earning this time.
Program compliance has increased. The instances of inmates saying, I'm not interested, I won't work, I won't do this rehabilitative programming, have been reduced in instances where we have offenders who have not chosen to do programming and the department feels that they are a continued risk, as Commissioner Arnone alluded to earlier. They lose substantial amounts of time, any and all time that they can. Again, a system of incentives and disincentives for folks who generally have had a pattern of making poor choices.
Judiciary Committee Hearing, March 22, 2013, remarks of Director of Offender Classification Karl Lewis.
Shortly after these remarks, Representative Fox opened the floor to questions from other members of the Judiciary Committee.
Senator Kissel and Undersecretary Lawlor then had the following exchange:
Senator Kissel: . . . [W]hat I heard at the--in my discussions with you prior to session was that, as a practical matter, the risk reduction credits are not being utilized for violent offenders that in any way results in them serving less than 85 percent of their sentence, and that under prior law, prior to the passage of the new law, that that was the standard, that you can't get released prior to 85 percent of your sentence, that that is the time that you would come up for . . .
Undersecretary Lawlor: Can I just correct you, you can't be released on parole. You could, and frequently were released under other programs in the past.
Senator Kissel: But my question--my question, Undersecretary, is this. One of the concerns that I have and my constituents have, is that we don't feel that violent offenders should be reviewed for release--let's narrow the field to parole, prior to serving 85 percent of their time if they were convicted of a violent crime. And I thought that I heard that you would support legislation that would codify that, that the risk reduction credits cannot be applied so that someone could be released on parole prior to them serving 85 percent of their sentence. I'm just wondering if that's your position, if you want to clarify that?
Undersecretary Lawlor: That's correct, and that is actually one of the bills [i.e., Raised Bill 6657] that you're having a public hearing on as soon as this [i.e., the informational session] is done. It's our proposal to the [sic] bracket out the language which made it theoretically possible that a violent offender could be released prior to the 85 percent mark once you factored in the risk reduction credits. Now that hasn't actually happened in the past, right.
But in our discussion, I think you made a valid point. I know you have a lot of respect for Commissioner Arnone, as do we, and you said but in the future it could be a different commissioner who might view this differently, and we just want to have some assurance that that can't happen. So that's the bill you've got which the Governor supports.
You know, we were discussing this with the leadership in both the House and the Senate before the session even began, because that's been the practice. I mean, the idea that the credits will accumulate is a good thing, right, because it's an incentive for inmates to engage in the kind of behavior that is geared to reduce their risk. But they're not going to be released before 85 percent.
***
Well, that's--that's the bill--first of all, one more time, no violent offenders have been released due to risk reduction credits prior to 85 percent of their original sentence imposed, as far as we know, and people have been checking. I know caucuses here at the Legislature, the Victim Advocate's Office have routinely been asking to check this or check that inmate, and as far as I know have not uncovered a single violent offender, an 85 percenter, who has been released prior to 85 percent of the original unreduced sentence.
So to make that a part of the law is fine with us. We think that the calculation of the credits a very useful tool for risk assessment and for incentivizing inmate behavior. But at the end of the day, we have not been releasing violent offenders prior to the 85 percent mark, and we don't, and there's no reason not to codify that.
***
[I]t's a matter of fact that violent offenders, after the risk reduction system was implemented are actually being held in for longer than they were before. Just to be clear about that.
***
Commissioner Arnone, to his credit, from day one said, we are going to identify the highest risk, violent offenders, and we're going to keep them in for longer, and that's what has actually happened. And the bill you've got before you today is the codification of that commitment that Commissioner Arnone has made. We have not released violent offenders before they served 85 percent of their original sentence. And that's by design. And that's the way it's going to be in the future.
I think it's appropriate for the Legislature to codify that. And I'm confident that's going to happen. But I just want to be clear that before risk reduction credits were part of the system, people--violent offenders got out earlier, not later, earlier than they are today.
Judiciary Committee Hearing, March 22, 2013, remarks of Senator Kissel and Undersecretary Lawlor.
The informational portion concluded shortly thereafter and the public portion of the hearing commenced.
The first person to testify before the Judiciary Committee as a member of the public was Senator Bartolomeo, who represented a community in which a murder had recently been committed after the release of a violent offender. Senator Bartolomeo testified in opposition to Committee Bill 123, AN ACT REPEALING THE RISK REDUCTION CREDIT PROGRAM, because it did not distinguish between violent and non-violent offenders. However, as to Bill 6657, AN ACT CONCERNING SENTENCING AND RISK REDUCTION CREDITS, Senator Bartolomeo testified as follows:
I believe the bill is a step in the right direction, but needs to offer more specificity by excluding offenses that quote, unquote, involve the use, attempted use, or threatened use of physical force against another person, Connecticut will have to rely on interpretation of case-by-case basis rather than simply excluding specific violent cases.
Such an important change to the Risk Reduction Program should provide as little ambiguity as possible rather then incorporating overly broad language that could lead to misinterpretation or abuse of the law. And it would be beneficial to add the provision I mentioned previously that would prohibit inmates on waiting lists from earning credits, as well as mandating that individuals identified as security risks or who commit violent acts in prison lose the risk reduction credit privileges.
Senator Kissel responded to the concerns expressed by Senator Bartolomeo about the premature release of violent offenders as follows: " [J]ust as a point of clarification in light of the conversation that I had with the Undersecretary, right now my discussions with Commissioner Arnone and the Undersecretary is that they are not applying it, again not by statute, but just internally, to reduce a violent offender's time served below 85 percent."
Judiciary Committee Hearing, March 22, 2013, remarks of Senators Kissel and Bartolomeo.
Several conclusions can be drawn from the foregoing legislative history leading to the enacting of Public Acts 13-3, § 59. First, risk reduction earned credits are a tool and means by which DOC at its complete discretion manages the inmate population. Second, even prior to the changes implemented by Public Acts 13-3, § 59, risk reduction credits were not applied by DOC to violent offenders' total, or definite, sentences so that violent offenders were released prior to the eighty-five percent threshold of the to-serve portion of their sentences. Third, given that the potential existed for such premature releases by the language originally enacting risk reduction earned credits, the legislature closed this loophole and conformed the language of the statute to reflect DOC's practice of not applying such credits to violent offenders so that they are released prematurely. Fourth, DOC's practice of not applying RREC to bring a violent offender's release before the eighty-five percent mark is wholly consistent with the legislature's clear intent to have violent offenders serve at least eighty-five percent of their definite sentences pursuant to General Statutes § 54-125a(b)(2)(B) (Rev. to 2011).
Given the language of General Statutes § 54-125a(b)(2)(B) (Rev. to 2011), the changes implemented via Public Acts § 13-3, § 59, the language in the related statute § 18-98e, as well as the legislative history, this court concludes that the only reasonable interpretation of the phrase " less any risk reduction credit earned" is that it applies to the definite sentence. Thus, beginning in 2011 and continuing to the present day, the legislature has explicitly prohibited the release of violent offenders prior to the service of at least eighty-five percent of their definite (i.e., to-serve portion) sentence. The petitioner's interpretation and argument that risk reduction earned credits can result in his release prior to the eighty-five percent mark is in contravention of a reasonable interpretation of the statute. Furthermore, the statutes and legislative history underscore that risk reduction earned credits are awarded and taken away at the complete discretion of DOC and are a tool to manage the inmate population.
The law implemented by § 18-98e (i.e., risk reduction earned credits) merely is a means by which DOC can better administer the entire inmate population. The statute is infused and teeming with discretion and is not, as was the eighty-five percent parole eligibility statute, § 54-125a(b), a change in the law that supports a colorable ex post facto claim because § 18-98e in no way increases an inmate's term of confinement. Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734 n.3 (The Appellate Court intimating that the changes wrought by General Statutes § § 54-125a and 18-98e benefitted the petitioner and shortened, as opposed to lengthened, the term of incarceration). The petitioner's punishment is no more onerous, and in no way greater, than when he committed his offenses. The petitioner and others who may be the beneficiaries of RREC cannot claim that their punishments are greater as a result of such credits, nor can they claim that they somehow were not put on notice that they faced a genuine, let alone increased, risk of longer incarceration. As the respondent aptly argues in his post-trial brief, any claim regarding RREC is too speculative. The petitioner's designation of his claim as being ex post facto based is too tenuous and does not transform it into in fact being a substantive ex post facto claim. In other words, the petition fails to state a cognizable and colorable ex post facto claim.
" A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction . . . [W]ith regard to subject matter jurisdiction, jurisdictional facts are [f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . ." (Citations omitted; internal quotation marks omitted.) Mourning v. Commissioner of Correction, 120 Conn.App. 612, 618-19, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010).
" [I]t is a fundamental rule that a court may . . . review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal . . . Indeed, '[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court . . ." (Internal citations and quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).
Based upon the foregoing, the court concludes that it lacks subject matter jurisdiction over the petitioner's tenuous RREC claim and how such speculative credits may impact his parole or parole eligibility.
The court additionally concludes that there is no relief that it could grant to the petitioner. Overseeing the administration of the prison population by the respondent through tools such RRE credits is not a habeas court's function. See, e.g., State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001) (" . . . not within the province of the judiciary to micromanage prisons"). " Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism . . ." (Citation omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).
General Statutes § 18-98e gives the respondent and his or her designee the discretionary authority to use RREC to administer the inmate population. Any credits such as those awarded by General Statutes § 18-98e and other statutes are, of course, solely a matter of legislative grace. See, e.g., Magee v. Commissioner of Correction, 105 Conn.App. 210, 218-19, 937 A.2d 72, cert. denied, 286 Conn. 901, 943 A.2d 1102 (2008); Mitchell v. Commissioner of Correction, 94 Conn.App. 210, 213, 893 A.2d 445, cert. denied, 278 Conn. 917, 899 A.2d 622 (2006); Hammond v. Commissioner of Correction, 259 Conn. 855, 878, 792 A.2d 774 (2002); Johnson v. Manson, 196 Conn. 309, 321 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986). Habeas courts in particular must be circumspect in enmeshing themselves in prison administration matters that courts are ill equipped to deal with. The amended petition and its myriad claims are no more than an invitation for a habeas court to enmesh itself in prison matters that the highest courts of this state and country have warned courts to not resolve by decree.
The court also concludes, therefore, that the petition must be dismissed on the ground that there is no habeas corpus relief that can be granted. Practice Book § 23-29(2).
CONCLUSION
Judgment shall enter denying the claim in count one and dismissing count two on the grounds that the court lacks subject matter jurisdiction over the petitioner's ex post facto claim and because there is no habeas corpus relief that can be granted. Practice Book § 23-29(1) and (2). Counsel for the petitioner shall prepare a judgment file and file it with the clerk within thirty days of the date of this decision.
It is so ordered.