Opinion
No. CV 00 0443013 S
January 13, 2005
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In an amended petition in which the Board of Parole (Board) was cited in and remains as the sole respondent, the petitioner seeks extraordinary relief, a court order directing the Board to grant him an immediate parole hearing.
The petitioner received a sentence of from 17 years to life on October 22, 1980. He was subsequently paroled, re-arrested and convicted and on February 6, 1998 received two 13-year sentences concurrent with each other and with his 17 years to life sentence.
On March 5, 1998, at a parole revocation hearing, the Board revoked the petitioner's parole and set a new parole hearing date for March 2008.
It is this assignment date which the petitioner questions, arguing he is being unduly delayed in being given the opportunity for parole.
I
The Board has interposed two special defenses, either of which could justify a dismissal of the petition.
In a first special defense, the Board alleges that this parole revocation and the setting of the new date of March 2008 was challenged unsuccessfully in a prior petition.
This petition is therefore repetitive and is banned under the doctrine of collateral estoppel.
In a second special defense, the Board cities Schrager v. Mullin, CV 97-0574668, 1999 Conn.Super. 1961, J.D. of Hartford (July 16, 1999) for the ruling that an inmate serving an indeterminate life sentence has no right to a new hearing date and could be denied any and all hearings in the Board's discretion.
In Taylor v. Robinson, 171 Conn. 691 (1976), our Supreme Court addressed the issue of an inmate's rights to parole hearings and parole. At page 697, the court stated:
there is no statutory requirement that the panel actually consider any inmate for parole, the statute does not vest an inmate with the right to demand parole, and there is no statutory provision which even permits an inmate to apply for parole.
II
The petitioner urges this court to find that the Board's action in revoking his parole and settling the 2008 hearing date constituted an abuse of discretion, overriding the above considerations. He also argues that since the Board utilized his new 13 years concurrent sentences as the basis for finding he violated parole, that sentence should be referred to in setting the date for his next parole hearing. The petitioner also alleges that his parole date was arrived at by requiring he serve 85% of his sentence before parole eligibility rather than 50% which applied to him.
This last argument fails because the Board did not use either of those percentages. The 85% requirement would have resulted in a hearing date in 2009.
In its Exhibit 1, the respondent Board sets forth the reasons for the revocation. They include the convictions while free on parole of the charges resulting in his receiving the two new concurrent 13 years sentences. The chairman of the Board also testified that despite this new 13-year sentence, the underlying 17 years to life sentence remains the petitioner's controlling sentence. Thus, a hearing date, and/or parole computed on the 13-year sentence using the 50% standard will run afoul of the controlling sentence.
Since this was the third parole violation for the petitioner and in light of the nature of his convictions, the court cannot fault the respondent's conclusion that his release would not be compatible with the welfare of society. Under these circumstances, the court cannot "second guess" the Board in setting the hearing date in 2008.
The petitioner has not shown this court that the March 5, 1998 decision was arbitrary and capricious or an abuse of discretion.
Support for the respondent's position as to inapplicability of the 13-year sentence is also found in Tyson v Commissioner of Correction, 261 Conn. 806 (2002).
CONCLUSION
In view of the discussion above, the relief requested is denied and the petition is dismissed.
Anthony V. DeMayo Judge Trial Referee