Opinion
CV154007203S
01-26-2018
Russell KIRBY #300496 v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J., Superior Court Judge
The petitioner initiated the present matter by way of a pro se petition filed on May 7, 2015, and amended on June 10, 2015. The amended petition asserts three separate claims: first, that the Department of Correction (DOC) has failed to correctly post presentence confinement credits (jail credit) to the petitioner’s timesheet; second, that DOC has failed to properly credit the petitioner with risk reduction earned credits (RREC); and third, that the trial court failed to order the jail credits and RREC at issue in the first two claims. The respondent’s return denies the petitioner’s claims and maintains that DOC has correctly calculated and applied all credits to the petitioner’s timesheet.
The parties appeared before the court on October 18, 2017, for a trial on the merits. The petitioner testified in support of his claims and did not offer any documents into evidence. The respondent presented the testimony of DOC Records Specialist II Michelle Deveau and offered several DOC timesheets and judgment mittimuses into evidence.
For the reasons articulated more fully below, the petitioner’s claims are denied.
FINDINGS OF FACTS
The petitioner was charged and subsequently convicted in docket number CR02-266357-T, judicial district of New London. On September 9, 2004, the petitioner was sentenced to a total effective sentence of twenty-one years to serve, of which three years is a mandatory minimum that cannot be suspended or reduced. The petitioner accumulated eight-hundred and sixty days of jail credit between the date he came into custody (May 3, 2002) and his sentencing date (September 9, 2004). DOC credited the petitioner with eight-hundred and sixty days of jail credit. The petitioner’s status on September 9, 2004, converted from being held as a presentence detainee to being a sentenced inmate.
The petitioner appealed from the judgment of conviction. The Supreme Court reversed and remanded the matter for a new criminal trial. See State v. Kirby, 280 Conn. 361, 908 A.2d 506 (2006). As a result of the conviction and sentence being vacated, the petitioner’s status on November 6, 2006, reverted back to that of a pre-trial detainee. DOC credits the petitioner for the time period he was a sentenced prisoner (i.e., from September 9, 2004, until the conviction and sentence were vacated by the Supreme Court), although such credit is applied in the form of additional jail credit and not as time served.
On May 5, 2010, after conviction for the identical offenses, the petitioner was again sentenced to a total effective sentence of twenty-one years to serve, of which three years is a mandatory minimum that cannot be suspended or reduced. The petitioner’s status converted from presentence detainee to sentenced inmate. DOC has credited the petitioner with 2,924 days of jail credit, which reflects the time period of May 3, 2002, through May 5, 2010.
In 2011, the legislature through Public Act 11-51 enacted RREC, which at the respondent’s discretion permits an inmate to earn credits and, thereby, advance the discharge date. RECC can be earned and also forfeited. The petitioner has earned RREC, including " look back" credits as permitted by General Statutes § 18-98e(a) (permitting credits for conduct occurring on or after April 1, 2006). At the time of the habeas trial, the petitioner had earned a total of four-hundred and twenty-eight days of RREC and had not forfeited any RECC. Additional facts will be discussed below as necessary to address the petitioner’s claims.
DISCUSSION
I. DOC’s Failure to Correctly Post Jail Credit to the Petitioner’s Timesheet
The petitioner’s first allegation is that DOC has failed to credit him with 1,613 days of jail credit. The petitioner in claim one breaks the 2,928 days down as follows: 5-3-02 to 9-9-04 (859 days), which is from when he came into custody until he was first sentenced; 9-9-04 to 10-3-06 (754 days), which is from when he was first sentenced until the Supreme Court reversed his judgment of conviction and sentence; and 10-3-06 to 5-10-10 (1,315 days), which is from the Supreme Court’s reversal until his second sentencing. The petitioner acknowledges that DOC has credited him with 2928 days of jail credit for the time period of May 3, 2002, through May 10, 2010. However, the petitioner claims that he is entitled to an additional 1,613 days for the time period of May 3, 2002, through October 3, 2006. The petitioner relies on General Statutes § 18-98d(a)(1) for this claim.
In relevant part, General Statutes § 18-98d(a)(1) provides the following: " Any person who is confined to a community correctional center or correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of the section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person’s presentence confinement, except that if a person is serving term of imprisonment at the same time such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section ..."
The petitioner’s sentence imposed on May 10, 2010, has been reduced by 2,928 days of jail credit, with the time that the petitioner was a sentence prisoner (September 9, 2004, until October 3, 2006) applied as jail credit instead of time served. The twenty-one-year sentence thereby is reduced by the identical number of days as if the petitioner were a sentenced prisoner.
The petitioner’s first claim misapprehends the result of the Supreme Court’s reversal of his judgment of conviction and sentence. Essentially, the result of that court’s decision was the same as if the petitioner had never been convicted and sentenced- a restoration of the petitioner’s presumption of innocence. Cf. State v. Polanco, 308 Conn. 242, 260 n.11, 61 A.3d 1084 (2013) (contrasting inconsistency between vacated conviction and reversion to presumed innocence versus guilty verdict actually rendered). The petitioner’s first claim asserts incorrectly that he has to serve the 1,613 days (i.e., from May 3, 2002 until October 3, 2006) a second time- once after he was originally sentenced and again after the second sentencing. DOC accounts for the time served as a sentenced prisoner by converting it to jail credit so that the petitioner, in fact, does receive credit for the 1,613 days, but only once, not twice.
Also relevant to the petitioner’s first claim is General Statutes § 53a-38(c), which provides that: " When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence." The Supreme Court has noted that " ... the fundamental purpose of § 53a-38(c) is to afford an inmate credit toward his current sentence for the time that he was confined as a direct result of his initial trial on the same charges." Connelly v. Commissioner of Correction, 258 Conn. 394, 408, 780 A.2d 903 (2001).
Here, the petitioner’s time served against the vacated sentence (2,928 days, or from May 3, 2002, until May 10, 2010) has been credited and applied by DOC to the new sentence. There is no legal authority for the petitioner to have 1,613 days representing the same time period applied twice. In fact, such double application would violate General Statutes § § 18-98d(a)(1) and 53a-38(c). The testimony by Records Specialist II Deveau and the DOC timesheets demonstrate that DOC has correctly calculated and applied jail credits to the petitioner’s sentence.
The court concludes, based upon the foregoing, that the petitioner’s claim in count one must be denied.
II. DOC’s Failure to Properly Apply RREC
The petitioner’s second claim is that DOC has incorrectly denied him 248 days of RREC time for the period of April 1, 2006, to May 10, 2010. The petitioner asserts that he is entitled to receive such retroactive RREC for his conduct during that " look back" time frame. See General Statutes § 18-98e(a). The RREC statute was enacted in 2011, with an effective date of July 1, 2011. The petitioner does not allege, nor is there any evidence, that DOC at any time awarded him RREC while he was a sentenced prisoner and subsequently, as a result of the Supreme Court’s reversal, negated such awarded credits because he reverted back to presentence confinement status.
In Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), the habeas petitioner, whose offense date was October 20, 2003, alleged that he was denied the benefit of RREC through changes in the parole statute. See Public Act § 13-3 and General Statutes § 54-125a (Rev. to 2013). The Appellate Court noted that " [s]horn of its ex post facto designation, the petitioner’s claim is no more than a complaint that long after he committed [his offenses] and was sentenced, favorable legislation was enacted that gave him, at the respondent’s discretion, an opportunity for earlier parole consideration but that legislation was later repealed, putting him back into the same position he had been in [when he committed his offenses prior to the enactment of RREC]." Id., 734. The Appellate Court concluded that the habeas court properly declined to issue the writ of habeas corpus for lack of subject matter jurisdiction. Id.
In 2017, the Supreme Court decided Perez v. Commissioner of Correction, 326 Conn. 357, 163 A.3d 597 (2017). The petitioner in Perez committed offenses in November 2010, and through his habeas petition sought RREC on a plethora of legal theories (e.g., various due process grounds, liberty interest, ex post facto, separation of powers, and incorrect interpretation and application of the RREC statute by the Department of Correction). The Supreme Court arrived at several important conclusions. First, that the discretionary nature of RREC meant that there is no liberty interest in such credits. Id., 371-74. Second, that none of the changes to the RREC and parole statutes increased the measure of punishment relative what the statutes provided for on the date of offense. Id., 375-80. Third, that RREC is not constitutionally required and is a matter of legislative grace. Id., 385. " Therefore, ... application of [RREC] to advance an inmate’s parole eligibility date does not impinge on a fundamental right." Id. Fourth, inmates do not have a fundamental right in the opportunity to earn and receive RREC. Id., 386. The Supreme Court concluded that all of the petitioner’s claims either failed to state a claim upon which habeas corpus relief can be granted, or that the habeas court lacked subject matter jurisdiction, or were not cognizable, and affirmed the judgment of the habeas court dismissing the petition for a writ of habeas corpus.
The present petitioner’s offense date of May 2, 2002, precedes the enactment of RREC and its effective date of July 1, 2011. The petitioner has no right to earn and receive discretionary RREC, especially not for time while he was in presentence confinement. Therefore, the court lacks subject matter jurisdiction over the petitioner’s second claim. Even if this court had subject matter jurisdiction, there is no authority for DOC to apply RREC to periods of presentence confinement See Torres v. Commissioner of Correction, 175 Conn.App. 460, 469-72, 167 A.3d 1020 (2017) (presentence confinement not eligible to earn RECC).
III. Trial Court Error to Order Jail Credit and RREC
The petitioner’s third and final claim is that the trial court erred in failing to order the jail credits and RREC discussed above. This court has concluded that the petitioner is not entitled to, and there is no authority for, the jail credits at issue in the first claim. There is no basis for a court to award such jail credits if they were requested. Furthermore, there is no evidence that a request was made to the sentencing court to award jail credit, nor could there be given that the petitioner was sentenced on May 10, 2010, more than one year before RREC came into existence. This court has also fully addressed the RREC claim and simply notes that there is no authority for a sentencing court to award RREC, which can be earned by inmates who successfully participate in programs, comply with their offender accountability plan, etc., and which is awarded at the discretion of DOC. Consequently, the claim in count three must also be denied.
CONCLUSION
Based upon the foregoing, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.
It is so ordered.