Opinion
CV154006887S
10-26-2018
Troy Artis #154149 v. Warden
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
MEMORANDUM OF DECISION
Bhatt, J.
Can an individual simultaneously be supervised on special parole and probation for sentences imposed on different dockets? The petitioner says no; the respondent says yes. The respondent further argues that the petitioner’s claim is moot and fails to state a claim upon which relief can be granted. The essence of the petitioner’s claim is that upon completion of the incarceration portion of his sentences, he should first have been supervised on special parole before being placed on probation. This would render his current conviction for a violation of probation illegal because he should not have been on probation at the time of the offense underlying that violation.
The petitioner has filed a motion for summary judgment and the parties stipulate that there are no material facts in dispute. At the hearing on the motion for summary judgment, the petitioner submitted three exhibits. The parties further agreed that in the event this court denies the motion for summary judgment, there is no need for another evidentiary hearing as the petitioner has submitted the entirety of evidence he would otherwise seek to have admitted at a subsequent trial on the petition and therefore, this court can, without further proceedings, rule on the merits of the petition.
This court answers the question above in the affirmative. The motion for summary judgment is denied. The petition is denied.
I. FACTUAL FINDINGS
As noted above, the parties agreed to the material facts in this case. The parties stipulated to the following:
1. On September 15, 2008, the petitioner was sentenced to six years’ incarceration, execution suspended after three years, followed by three years’ probation ("probation sentence") in Docket No. H14H-CR07-0609623-S.
2. On January 13, 2010, the petitioner was sentenced to nine years’ incarceration, followed by eight years’ special parole ("special parole sentence") in Docket No. HHD-CR09-0613704-T.
3. The petitioner was not released from incarceration between the imposition of the probation sentence and the special parole sentence.
4. On July 30, 2015, the petitioner’s sentence in Docket No. HHD-CR09-0613704-T was modified to ninety months’ incarceration, followed by eight years’ special parole.
5. The petitioner was continuously incarcerated until his release on September 15, 2016.
6. Upon release, the petitioner was simultaneously placed on special parole and probation.
7. On June 29, 2018, the petitioner admitted violating his probation and was sentenced to seven months’ incarceration.
8. This sentence for violating his probation is a "flat" sentence and the petitioner will no longer be on probation upon his release from incarceration.
9. The petitioner will be released from incarceration no later than November 21, 2018.
II. LEGAL ANALYSIS
The petitioner argues that if this court engages in statutory construction of the relevant statutes, it will agree with him that parole and special parole are functionally the same and thus, will be bound by the Appellate Court’s decision in State v. Galberth, 175 Conn.App. 789, 170 A.3d 132 (2017), which held that an individual cannot be on probation until he has been discharged from parole. The petitioner argues that therefore he must first discharge his term of special parole before probation can commence. The court will first address the motion for summary judgment.
A. Summary Judgment
A habeas court may grant summary judgment "if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.3d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005).
As noted above, there is no "genuine issue of material fact" and thus, the question is whether, under applicable principles of substantive law, the petitioner is entitled to judgment as a matter of law. He is not. The petitioner’s argument is premised on his reading of the statutes governing parole and special parole.
Relevant Statutes
In deciding the petitioner’s claim, the court has considered three statutes. First, the parole statute, General Statutes § 54-125a, which provides in relevant part:
(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or total effective sentence of more than two years, and who has been confined [...] may be allowed to go at large on parole [...] The parolee shall, while on parole, remain under the jurisdiction of the [Board of Pardons and Paroles] until the expiration of the maximum term or terms for which the parolee was sentenced less any risk reduction credit earned ...
(g) Any person released on parole under this section shall remain in the custody of the Commissioner of Correction and be subject to supervision by personnel of the Department of Correction during such person’s period of parole.
Next, the special parole statute, General Statutes § 54-125e:
(a) Any person convicted of a crime committed on or after October 1, 1998, who received a definite sentence of more than two years followed by a period of special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by the court, be automatically transferred to the jurisdiction of the chairperson of the Board of Pardons and Paroles or, if such person has previously been released on parole pursuant to subsection (a) of section 54-125a or section 54-131a, remain under the jurisdiction of said chairperson until the expiration of the period of special parole imposed by the court. The Department of Correction shall be responsible for the supervision of any person transferred to the jurisdiction of the chairperson of the Board of Pardons and Paroles under this section during such person’s period of special parole.
Finally, the probation statute, General Statutes § 53a-31:
(a) A period of probation or conditional discharge commences on the day it is imposed, unless the defendant is imprisoned, in which case it commences on the day the defendant is released from such imprisonment. Multiple periods, whether imposed at the same or different times, shall run concurrently.
The petitioner points to the parallels in the language of § 54-125a and § 54-125e, specifically that an individual is under the "jurisdiction of the board" and supervision will be the responsibility of the Department of Correction, to support his contention that parole and special parole should be treated the same. The court is not persuaded. It is clear that parole and special parole are substantively different. While parole permits an individual to serve the incarceration portion of their sentence while at liberty, "the [individual] is not considered released from custody or imprisonment." State v. Galberth, supra, 175 Conn.App. 795. In Galberth, the Appellate Court concluded that "[b]ecause a defendant cannot be released from imprisonment for the purposes of commencing his probationary period under § 53a-31(a) until he is no longer in the custody of the Commissioner of Correction, and our case law has determined that one on parole has not functionally been ‘released from imprisonment,’ we conclude that the defendant did not commence his probation until he was released from custody ..." Id., 799. Thus, parole is merely another form of the imprisonment portion of the sentence, as opposed to the supervision portion of the sentence. It merely allows an individual to "serve" the term of imprisonment outside the confines of a correctional facility. Further support for this is found in the fact that a sentencing judge cannot sentence a defendant to parole or order that parole last for a defined period, whereas it is entirely within the function of the sentencing judge to set the terms of probation or special parole supervision.
In sum, the plain language of the special parole statute and our case law interpreting the probation statute guides this court’s determination. It is clear that the period of supervision commences only upon completion of the incarceration portion of a sentence. There is no language in any statute that the petitioner points to that directs probation and special parole to run consecutively, with or without a sentencing court determining their order.
Certainly, if the two sentences were imposed consecutive to one another, the court would be faced with a slightly more complicated question: can they be consecutive and if so, which supervision portion commences first? That is not the case here. The sentences were imposed to run concurrently to one another. There being no statutory prohibition on the supervision portions of the petitioner’s sentences being concurrent, the petitioner’s argument fails as a matter of law. The motion for summary judgment is DENIED.
B. Merits of the Petition
Having concluded that the petitioner is not entitled to summary judgment, the court moves on to the merits of the petition. Before the court rules, however, it must address the defenses raised by the respondent. The defenses appear to be the same as those raised in respondent’s motion to dismiss dated June 11, 2018, which was denied by this court on August 30, 2018. This court incorporates its ruling on that motion into this memorandum of decision. In addition, the court notes that even though the petitioner has admitted a violation of probation, is serving a sentence and will no longer be on probation, the matter is not moot because there is practical relief the court could order. For instance, if this court determines that the petitioner was illegally placed on probation, then relief would be in the form of release from incarceration for violating that illegal probation. The probation violation would then have to be removed from the petitioner’s criminal record. Our Supreme Court has acknowledged that a court continues to retain jurisdiction "if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief." State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74, 79 (2002). In McElveen, our Supreme Court noted that "a violation of probation carries consequences in connection with future involvement with the criminal justice system, beginning with [the defendant’s] ability to obtain a favorable decision concerning pre-conviction bail." Id., 213. Further, "[a] defendant’s past probation violation is equally relevant when considering whether to afford a convicted defendant future probation." Id., 261 Conn. 15. A revocation of probation may also "affect [a defendant’s] standing in the community in its connotation of wrongdoing ..." State v. Smith, 207 Conn. 152, 161, 540 A.2d 679 (1988). Thus, our Supreme Court has consistently held that "there is a reasonable possibility of prejudicial consequences flowing from the revocation of the defendant’s probation, thereby precluding dismissal of his appeal on grounds of mootness." State v. Preston, 286 Conn. 367, 383, 944 A.2d 276 (2008). Thus, even if the petitioner has discharged the incarceration portion of his sentence, there is a colorable claim that the matter is not moot. For these reasons as well as those stated in this court’s prior memorandum of decision, the court finds the respondent’s defenses unavailing.
Ordinarily, at this juncture the court would grant respondent’s cross motion for summary judgment. However, respondent has not filed such a cross motion in this case. Thus, the court moves on to the merits of the petition itself.
This basis for determining mootness is distinguished from a situation where the defendant is challenging the sufficiency of the finding of a probation violation against him and subsequently enters a plea to the criminal conduct forming the basis for that violation. In those circumstances, our courts have routinely held the matter to be moot. State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005) ("Where, subsequent to a conviction of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated"). The petitioner here does not challenge the sufficiency of the probation violation.
Because the law does not support the petitioner’s position, he cannot prevail on the merits of his petition. Both General Statutes § § 53a-31 and 54-125e mandate that an individual shall be placed on probation and special parole, respectively, upon satisfaction of the term of incarceration. That is precisely what happened here. The petition is denied for the same reasons this court denied the petitioner’s motion for summary judgment.
Accordingly, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.