Opinion
No. CV 04-0004521 S
October 4, 2005
MEMORANDUM OF DECISION
On April 26, 2004, the petitioner filed a petition for a writ of habeas corpus, which was amended on July 5, 2005. The amended complaint raises a single claim: that the respondent has failed to credit successful completion of probation time toward a violation of probation sentence. The respondent's return denies the claim and asserts as a defense that the respondent has calculated the petitioner's multiple sentences in a manner that conforms with all applicable statutes and case law.
The matter came before this court for a trial on the merits on September 22, 2005, at which time the court received into evidence a sentencing transcript, several documents maintained by the respondent as well as testimony from the petitioner and Department of Correction Record Specialist II, Michele Deveau. From the foregoing and the facts pleaded in the amended petition and admitted to by the respondent, the court makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in the Superior Court, New London, in case CR88-175427, charged with assault in the first degree, in violation of C.G.S. § 53a-59(a)(1); robbery in the first degree, in violation of C.G.S. § 53a-134(a)(3); and other charges.
2. On June 12, 1989, pursuant to a plea agreement, the petitioner was sentenced to a total effective sentence of thirty years incarceration, suspended after seventeen years, and five years probation.
3. With the benefit of statutory good time, the petitioner was released from incarceration to probation on December 27, 2000.
4. The petitioner committed one or more new offenses on January 30, 2003, which were charged under docket number CR03-13701. The petitioner was held in lieu of bond on that new docket from some unspecified date until February 6, 2003, at which time the petitioner was released on bond.
5. On May 1, 2003, the petitioner was arrested and incarcerated for violation of his probation in case CR88-175427; he has remained continuously incarcerated since that point.
6. On August 21, 2003, in the Superior Court in New Haven, G.A. 23, petitioner was sentenced, pursuant to a plea agreement in case CR03-13701, to fifteen years incarceration, execution suspended after five years, and three years probation; he was also sentenced in case CR88-175427, pursuant to the plea agreement in that case, to seven years incarceration, to be served concurrently with the sentence in case CR03-13701.
7. The timesheet maintained by the respondent for CR03-13701 shows that after applying 83 days presentence confinement credit, the petitioner's release date from CR03-13701, which is a non-good time earning sentence due to the January 30, 2003 offense date, is May 29, 2008.
8. The sentence in CR88-175427 is, however, a good time eligible sentence because of the October 6, 1988 offense date. The petitioner continues to earn statutory good time credits and seven-day job credits, which are posted every month he earns such credits. On September 22, 2005, the time sheet maintained for CR88-175427 showed that the petitioner's estimated release date from that docket was June 1, 2009. Assuming the petitioner continues to earn all good tine credits he is entitled to and does not forfeit any such credits for disciplinary violations, the respondent projects his estimated release date from CR88-175427 as March 2008.
9. The docket number CR88-175427 sentence presently is the controlling sentence with the latest release date, until such time as the posting of good time credits to CR88-175427 advances the release date from that sentence to a date that precedes the May 29, 2008 release date from the CR03-13701 sentence. Once the CR88-175427 release date precedes the CR03-13701 release date, the latter becomes the petitioner's controlling sentence.
10. The petitioner filed a motion for sentence modification with the sentencing court, B. Kaplan, J., which was denied.
DISCUSSION
The petitioner in the instant matter is seeking to have his seven-year sentence in docket number CR88-175427 credited with 764 days, representing the time period of successful completion of probation in CR88-175427 between December 27, 2000 and January 30, 2003. In other words, the petitioner is seeking to have successfully completed probation applied to his sentence as if he were, while on probation, serving the to-serve portion of that sentence. A review of the relevant statutes and case law shows that there is no support for such a claim.
C.G.S. § 53a-29 states in relevant part that: "(a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) The defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision . . .
"(c) . . . When a person is sentenced to a period of probation the court shall impose the period authorized . . . and may impose any conditions authorized . . . When a person is sentenced to a period of probation, . . . he . . . shall be placed under the supervision of the Court Support Services Division."
C.G.S. § 18-84 defines the terms "inmate" and "prisoner" as follows: ". . . any person in the custody of the Commissioner of Correction or confined in any institution or facility of the Department of Correction until released from such custody or control, including any person on parole." Applying this definition to the petitioner during the time period at issue, namely the 764 days he was only on probation, it clearly follows that the petitioner was neither an inmate nor a prisoner. He was not in the respondent's custody or confined in any institution or facility of the Department of Correction, having been released from such custody and control to the five-year probation term. Furthermore, the petitioner was not on parole during those 764 days.
C.G.S. § 53a-32(b) states in relevant part that: "If such violation [of probation] is established, the court may: . . . (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish . . ." (Emphasis added.)
The Supreme Court has ". . . recognized that to a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special probation restrictions . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large.
"A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. The ultimate question in the probation process is whether the probationer is still a good risk . . . This determination involves the consideration of the goals of probation, including whether the probationer's behavior is inimical to his own rehabilitation, as well as to the safety of the public." (Internal citations and quotation marks omitted.) State v. Hill, 256 Conn. 412, 426-27 (2001).
In his pretrial brief, the petitioner relies solely on State v. Strickland, 39 Conn.App. 722, 726 (1995), cert. denied, 235 Conn. 941 (1996), in support of his claim. A review of Strickland shows that the petitioner's reliance thereon is misplaced.
". . . [T]he defendant in Strickland, who had been released from custody and placed on probation for previous crimes, was incarcerated after being convicted of separate crimes. His probation was not revoked at that time. The defendant argued that he could not simultaneously be on probation and incarcerated. [The Appellate Court] . . . conclude[ed] that it is possible for a defendant to be both incarcerated and on probation at the same time as the result of separate convictions. [The court] held also that a probation term cannot be suspended or tolled once it has commenced . . . Although probation may continue during a period of incarceration, it does not commence pursuant to § 53a-31(a) unless a defendant is released from imprisonment." (Internal citations omitted.) State v. Outlaw, 60 Conn.App. 515, 523-24 (2000), aff'd, 256 Conn. 408 (2001) (per curiam).
In Strickland, "[t]he defendant maintained that the commissioner's custodial authority over him during that time period precluded the defendant from simultaneously completing the five year probationary period [previously] ordered . . . The defendant argued, therefore, that because he was not on probation, the court could not find him to be in violation of probation." State v. Strickland, supra, 39 Conn.App. 726.
The Strickland court noted that "[p]robation is the product of statute. See General Statutes § 53a-28 et seq. General Statutes § 53a-31(a) provides that a period of probation commences on the day it is imposed, except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is released from such imprisonment." (Emphasis added.) (Internal citations and quotation marks omitted.) Id., at 728.
The term `release' ". . . means physical release from custody," even if the sentence to be served has not been completed. (Emphasis added.) State v. Outlaw, 60 Conn.App. 515, 523 (2000); State v. McFarland, 36 Conn.App. 440 (1994), cert. denied, 232 Conn. 916 (1995).
The issue in Strickland is clearly distinguishable from the instant matter. In the former case, the defendant argued that he was not on probation to demonstrate that he could not have been found in violation of probation. The petitioner here seeks, however, to have the time he was on probation and not in custody serving a sentence or on parole to count as time served on the to-serve portion of a sentence. In Strickland, the court concluded that probation can run simultaneously with a sentence being served; here, the petitioner wants time successfully completed on probation to reduce his controlling sentence. The petitioner has not presented any authority to this court that supports this claim.
The petitioner attempts to extrapolate from Strickland that the ". . . Appellate Court saw no meaningful distinction between supervision through incarceration and probationary supervision. If defendant Strickland's probation could be served by incarceration, petitioner herein could serve a portion of a term of incarceration by successfully completing a period of probation." Petitioner's Brief, at 4. A review of Strickland shows that the distinction between supervision through incarceration and probationary supervision was not an issue before the Appellate Court. Instead, the court in Strickland identified "[t]he issue posed by the defendant [as] center[ing] on what action the court took as a result of this violation . . ." State v. Strickland, supra, 39 Conn.App. 730. Thus, Strickland addresses the trial court's authority in violation of probation proceedings, not any distinctions or similarities between probation and incarceration.
Having failed to show that the respondent has improperly applied the relevant statutes, judgment shall enter denying the petition for a writ of habeas corpus.
T. SANTOS, JUDGE