Opinion
TTDCV175007134S
07-12-2018
Ernest FRANCIS (Inmate #176318) v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
Gordon, J.
The self-represented plaintiff, Ernest Francis, brings this declaratory judgment action, pursuant to Connecticut General Statutes § 52-29 against the defendants and seeks a declaration that Connecticut General Statutes § 54-125a(f) is unconstitutional. In his amended complaint, filed with the court on January 9, 2017, the plaintiff alleges the following facts. The plaintiff was eighteen years and five days old when on August 12, 1990, he committed a murder for which he was subsequently convicted, and for which he is presently serving a fifty-year sentence. The plaintiff contends that he is similarly situated to the class of offenders who were under the age eighteen when they committed their crimes, but now by virtue of the recently codified General Statutes § 54-125a(f), enacted by No. 84 of the 2015 Public Acts, are eligible for parole hearings. The plaintiff invokes the United States Supreme Court cases of Roper v. Simmons, 546 U.S. 551, 125 S.Ct. 1183, 1616 L.Ed.2d 1112 (2006), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (collectively "Miller-Graham" ), which held, inter alia, that life imprisonment without the possibility of parole for juvenile offenders constitutes cruel and unusual punishment based upon a juvenile’s lack of development and capacity for change. To remediate this, Miller-Graham dictate that a juvenile’s sentence must reflect a consideration of their youthful qualities and factors. Subsequently, § 54-125a(f) was codified by our legislature to ameliorate the retrospective sentencing issues raised by these cases.
The plaintiff initiated this action against the following defendants: the State of Connecticut, Carleton Giles, of the Board of Pardons & Parole, Dannel Malloy, Natasha Pierre, of the Office of Victim Services, Linda Cimino, of the Office of the Victim Advocate, the Department of Corrections Victim Services Unit, Gail Hardy, a States Attorney, and Scott Semple, the Commissioner of Correction.
General Statutes § 54-125a(f)(1) provides in relevant part: "[A] person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes ... may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined ..."
The plaintiff asserts that the protections and considerations raised by Miller-Graham applicable to juveniles also apply to offenders aged eighteen to twenty-five based upon their similar youthful qualities and lack of development. The plaintiff also asserts that because § 54-125a(f) only applies to those under the age of eighteen, it is unconstitutional because it discriminates against the class of offenders aged eighteen to twenty-five with no rational basis to do so. The plaintiff contends that this purported failure also discriminates against African-Americans within that same group of offenders, aged eighteen to twenty-five. From these alleged failures, the plaintiff maintains that § 54-125a(f) violates his rights under the Equal Protection Clause of the United States Constitution, and under Article first, § § 9, and 20 of the constitution of Connecticut.
On October 27, 2017, the defendants moved to dismiss, asserting the plaintiff lacked standing. Hence, on November 29, 2017, the plaintiff filed an objection. The matter was heard at Short Calendar on March 29, 2018.
II
DISCUSSION
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). Specifically, pursuant to Practice Book § 10-30(a), "[a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process, and (4) insufficiency of service of process."
The defendants contend that the plaintiff’s action should be dismissed for lack of standing. Specifically, the defendants assert that the plaintiff is not injured by the provisions of § 54-125a(f) because controlling authority has drawn the line for classification as a juvenile at eighteen; thus, the plaintiff is not eligible for the protections of the eighth amendment recognized by Miller-Graham. In light of this, and, because there is no guaranteed right to parole, the defendants maintain that the plaintiff lacks injury and that this matter should be dismissed for lack of standing. In objection, the plaintiff contends that he has standing because the protections of Miller-Graham extend and apply to those individuals aged eighteen to twenty-five at the time of their crime based upon their youthful qualities, and that the absence of a mechanism through which the plaintiff may seek relief from his sentence subjects him to cruel and unusual punishment.
"The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). "If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause ... In addition, because standing implicates the court’s subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." (Citations omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).
The plaintiff challenges the constitutionality of § 54-125a(f). "A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations." (Internal quotation marks omitted.) State v. Korhn, 41 Conn.App. 874, 878, 678 A.2d 492, 494, cert. denied, 239 Conn. 910, 622 A.2d 1010 (1996). Furthermore, "[o]nly members of a class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional ... One who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights ... Aside from the mere question of standing, if his attack is to be successful, a litigant must sustain the burden of proving the facts essential to his standing, that is, that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which he has. This means a right which he proves that he has under the facts of his particular case." (Citations omitted.) Shaskan v. Waltham Industries Corp., 168 Conn. 43, 49-50, 357 A.2d 472, 474-75 (1975).
The plaintiff claims entitlement to the protections of the Miller-Graham line of cases. Therefore, a review of those cases is warranted. In State v. Taylor G., 315 Conn. 734, 743-44, 110 A.3d 338 (2015), our Supreme Court summarized the holdings in Roper, Graham and Miller as follows: "[A]ll three federal cases recognized that, because the eighth amendment prohibition against cruel and unusual punishment is based on the principle that punishment should be graduated and proportioned to the offender and the offense, courts must consider mitigating evidence of youth and immaturity when sentencing juvenile offenders. Thus, applying this principle, the death penalty is a disproportionate sentence for juvenile offenders, regardless of the crime; see Roper v. Simmons, supra, 543 U.S. at 573-75; life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a non-homicide crime; Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011; and mandatory life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a homicide, although a sentence of life imprisonment without the possibility of parole may be deemed appropriate following consideration of the child’s age-related characteristics and the circumstances of the crime. See Miller v. Alabama, supra, [ 567 U.S. at 479-80, 132 S.Ct. 2455] ..." (Emphasis in original.) State v. Taylor G., supra, 743-44. Controlling authority has since held that § 54-125a(f) remediates the state and federal constitutional issues raised by Miller and Graham. See State v. Williams-Bey, 167 Conn.App. 744, 780-81, 164 A.3d 9, 31 (2016), cert. granted, 326 Conn. 920, 169 A.3d 793 (2017).
The constitutional protections raised by Miller and Graham are specifically limited to those individuals who are juveniles, or those under the age of eighteen, at the time they committed their offense. Miller held that only mandatory life imprisonment "for those under the age of [eighteen] at the time of their crimes" violates the eighth amendment. Miller v. Alabama, supra, 567 U.S. 465. Furthermore, our Supreme Court has specifically noted that these protections only apply to juveniles. See State v. Riley, 315 Conn. 637, 640 n.1, 110 A.3d 1205 (2015), cert. denied, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016) ("[w]e use the term juvenile offenders to refer to persons who committed a crime when they were younger than eighteen years of age"). The line for consideration as a juvenile "has been brightly drawn at eighteen, and we are not free to ignore that bright line." State v. Muhktaar, 179 Conn.App. 1, 9, 177 A.3d 1185 (2017). See also Haughey v. Commissioner of Correction, 173 Conn.App. 559, 568, 164 A.3d 849, cert. denied, 327 Conn. 906, 170 A.3d 1 (2017) ("[e]xpanding the application of Miller to offenders eighteen years of age or older simply does not comport with existing eighth amendment jurisprudence pertaining to juvenile sentencing").
Although § 54-125a(f) remediates retrospective Miller and Graham issues by virtue of providing the opportunity for a parole hearing, see State v. Williams-Bey, supra, 167 Conn.App. 780-81, there is no right to parole itself. Indeed, the United States Supreme Court has recognized that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence ... A state may ... establish a parole system, but it has no duty to do so." (Citations omitted.) Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Moreover, "whether and to what extent a state creates a liberty interest in parole by state statute is entirely at the discretion of the state." Baker v. Commissioner of Correction, 281 Conn. 241, 253, 914 A.2d 1034 (2007). "In Baker, our Supreme Court examined Connecticut’s parole eligibility statute ... to determine whether it conferred a liberty interest ... The court saw no indication in § 54-125a that the legislature intended to assure an inmate’s parole eligibility status ... [T]he regulations promulgated by the [parole] board pursuant to [General Statutes] § 54-125a(c) do not in any way limit its discretion in parole eligibility decisions." (Citations omitted; footnote omitted; internal quotation marks omitted.) Fuller v. Commissioner of Corrections, 144 Conn.App. 375, 379-80, 71 A.3d 689 (2013). Accordingly, "parole eligibility ... is not within the terms of the sentence imposed." (Internal quotation marks omitted.) Baker v. Commissioner of Correction, supra, 281 Conn. 260.
In the present case, the plaintiff’s action must be dismissed for lack of standing. The law does not require the plaintiff to be afforded consideration for his relative youth, and, because parole is not a right, he lacks injury.
There is no controlling authority that has extended the protections of Miller-Graham to those offenders at, or over, the chronological age of eighteen. Miller-Graham considerations only apply to juveniles, and, as noted by our Supreme Court, a juvenile is a person "who committed a crime when they were younger than eighteen years of age. " (Emphasis added.) State v. Riley, supra, 315 Conn. 640 n.1. Accordingly, "[b]ecause [the plaintiff] is not a juvenile; he does not qualify for the Eighth Amendment protections accorded to juveniles." (Internal quotation marks omitted.) Haughey v. Commissioner of Correction, supra, 173 Conn.App. 570. See also State v. Muhktaar, supra, 179 Conn.App. 9. The plaintiff has no basis in the law to assert that § 54-125a(f), which was enacted to remediate Miller-Graham sentencing issues; see State v. Williams-Bey, supra, 167 Conn.App. 780-81; should apply to him. Similarly, any claim of cruel and unusual punishment based on Miller-Graham must also fail because the plaintiff does fall within the purview of those holdings. Cf. State v. McNally, 152 Conn. 598, 603, 211 A.2d 162, cert. denied, 382 U.S. 948, 86 S.Ct. 410, 15 L.Ed.2d 356 (1965) (imposition of consecutive life sentences on adult offender was not cruel and unusual punishment).
The plaintiff points to the recent decision of Cruz v. United States, United States District Court, Docket No. 11-CV-787 (JCH) (D.Conn. March 29, 2018), in which the district court held in a habeas proceeding that the protections of Miller apply to those offenders aged eighteen at the time of their offense. Regardless of the merits of that holding, this court is bound by the opinions of our higher courts that "[e]xpanding the application of Miller to offenders eighteen years of age or older simply does not comport with existing eighth amendment jurisprudence pertaining to juvenile sentencing." (Emphasis added; internal quotation marks omitted.) Haughey v. Commissioner of Correction, supra, 173 Conn.App. 568.
Because there is no constitutionally protected liberty or property interest in obtaining parole, the plaintiff is not being deprived of anything afforded to another class of individuals. As noted previously, "[i]t is clear that an inmate has no liberty interest in or right to parole release ..." Fuller v. Commissioner of Correction, supra, 144 Conn.App. 380 n.4. This is because "whether and to what extent a state creates a liberty interest in parole by state statute is entirely at the discretion of the state." Baker v. Commissioner of Correction, supra, 281 Conn. 253. Section 54-125a(f), by its very terms, only affords parole at the discretion of the parole board. Specifically, § 54-125(a)(f)(1) provides that a juvenile offender serving a sentence of more than ten years "may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined ..." (Emphasis added.) Thus, because there is no legal interest in parole, the plaintiff lacks injury; he is in the same position now as he was when he committed his crime. See Shaskan v. Waltham Industries Corp., 168 Conn. 49 ("[o]ne who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights").
Having carefully considered the plaintiff’s complaint, the defendants’ motion to dismiss, the plaintiff’s objection, and the arguments advanced by the parties at oral argument, the court concludes that there is no legal basis for extending the Miller-Graham holdings to the plaintiff, and that because parole eligibility does not implicate a constitutionally protected liberty interest, the plaintiff has suffered no injury and therefore lacks standing. The defendants’ motion is therefore granted and the plaintiff’s action is hereby dismissed.