Opinion
No. CV03-0003946 S
April 26, 2004
MEMORANDUM OF DECISION ON PETITIONER'S MOTION FOR SUMMARY JUDGMENT
On May 5, 2003, the petitioner filed a petition for a writ of habeas corpus, which was amended on September 2, 2003. The amended complaint raises the claim that the respondent has failed to properly credit him with statutory good time credit. The respondent's return denies this claim and asserts two defenses, namely that the good time statute applicable to the petitioner's offense does not permit the credit he seeks and that there was a break in the petitioner's confinement, said break disentitling the petitioner from receiving the good time credit he seeks. The petitioner's reply to the return denies both defenses.
On January 21, 2004, the petitioner filed a motion for summary judgment supported by several mittimuses, individual docket and movement printouts from the Department of Correction, and a memorandum of law. Subsequent to the respondent filing a memorandum in opposition to the motion for summary judgment, the parties came before this court on March 30, 2004 for oral argument on the motion for summary judgment. Counsel for both parties stipulated to the facts outlined in respondent's pre-trial brief, filed on January 16, 2004, as incorporated into petitioner's motion for summary judgment, with one modification agreed to by the parties and made by the court with consent of both counsel. This court makes, in accordance with the stipulation of the parties, the following findings of fact. For the reasons stated more fully below, the motion for summary judgment shall be denied and the petition shall be denied.
FINDINGS OF FACT
1. On July 12, 1978, the petitioner was admitted into the respondent's custody in lieu of bond for docket CR2-16798.
2. On July 26, 1978, the petitioner was sentenced to an indeterminate term of 1 1/2 to 3 years to serve on docket CR2-16798 (hereinafter `sentence one').
3. Sentence one was imposed on a conviction for a violation of General Statutes § 53a-103, burglary in the third degree, which was committed on or about July 12, 1978.
4. The respondent made up a time sheet for sentence one, and gave petitioner 180 statutory good time on the 18 month portion, and 360 days on the three year maximum portion, pursuant to the posting method and General Statutes § 18-7a(a).
5. On October 25, 1979, petitioner was released on parole.
6. On November 8, 1979, petitioner was listed as an absconder from parole.
7. On November 13, 1979, petitioner was readmitted in the respondent's custody with new criminal charges, and held in lieu of bond in docket CR2-28997.
8. On April 25, 1980, petitioner was sentenced to a term of 4-8 years to serve on docket CR2-28997 (hereinafter "sentence two"). Sentence two was imposed for a conviction of assault in the second degree, in violation of General Statutes § 53a-60, which was committed on or about November 9, 1979.
9. On or about April 25, 1980, respondent prepared a time sheet for petitioner, posting four years worth, i.e., 480 days, of good time credit to the four-year minimum portion of petitioner's sentence, and 1140 days of good time to the maximum 8-year portion of his sentence.
10. While serving sentence two, petitioner was given a furlough from Gates Correctional Institution in late May or early June 1983, and was then listed as absent without leave (AWOL) or escape from his furlough on June 6, 1983.
11. On June 27, 1983, petitioner was readmitted to the respondent's custody and listed as "Escapee returned with new charges," for docket number 30, 107 JD, Superior Court, Part A, Bridgeport.
12. On March 2, 1984, the petitioner was sentenced to forty years for felony murder on docket 30, 107 JD for a crime committed on June 24, 1983 while petitioner was on escape status (hereinafter `sentence three').
13. Because sentence three was for a crime committed on June 24, 1983, it was calculated according to General Statutes § 18-7a(b), and received the benefit of 40 years worth of good time, posted "up front" on or about March 2, 1984, resulting in a reduction of 5760 days for statutory good time ("SGT").
14. Petitioner's forty-year sentence, without any good time, would have expired on March 1, 2024, but the crediting of 40 years worth of good time resulted in a maximum release date, as of June 1, 1985, of June 3, 2008.
15. Petitioner from time to time has been credited with additional good time credits, for example, for working a seven-day job, and as of a time sheet last posted June 1, 2003, had a maximum release date of August 9, 2007.
16. The respondent's records specialists use different calculation methods for sentences imposed for crimes after July 1, 1983 under General Statutes § 18-7a(c), and do not post all of the good time "up front," but rather month-by-month as the sentence is served.
17. The respondent's records specialists understand that the Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000), decision only applies to "as-served" sentences for crimes committed after July 1, 1983, and prior to October 1, 1994.
18. The respondent did not credit sentence three with credits that had previously been posted to sentence one and sentence two.
19. Sentence three has already received years of good time credit for years which petitioner will never serve. See Tyson v. Commissioner of Correction, 261 Conn. 806, 808 A.2d 653 (2002) (discussing posting).
20. Specifically, petitioner received 40 years worth of credit for a sentence imposed March 2, 1984, which as of June 1, 2003, was projected to expire August 9, 2007, only 23 years and five months later.
21. None of the three sentences at issue were ordered to run consecutive to another sentence; thus, the sentences at issue run concurrently.
DISCUSSION OF LAW
"A directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Miller v. United Technologies Corp., 233 Conn. 732, 752 (1995). "[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378-79 (1969). "Although the party seeking summary judgment has the burden of showing the nonexistence of material fact, . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such a dispute issue." Maffuci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).
The petitioner in this matter argues that the "[r]espondent has failed to construe multiple sentences as one continuous term for the purpose of calculating his discharge date using statutory good time[.]" Mem. Support Mot. Sum. J., at 2. The effect of this alleged failure is that the three sentences have not been aggregated by the respondent for the purpose of recalculating the petitioner's statutory good time credits. "As a result, the discharge date of petitioner's aggregate term of confinement is not reduced by the credits earned prior to the imposition of sentence three, thus eliminating any benefit to petitioner from those earned credits." Id., at 4. As the second defense raised by the respondent's return shows, the critical factual issue that determines the outcome of the instant petition is whether or not the three sentences comprise one continuous term of confinement.
The petitioner argues that his failure to return from furlough did not discharge his sentences and did not eliminate the fact that he is serving an aggregate term of confinement. Id., at 28. "There is no dispute that petitioner was not where the Commissioner or his agents had directed him to be for 22 days, and thus his term of confinement includes 22 days of dead time. That period of being AWOL did not create a legal break in his confinement. During each of those days he was under a court order, the judgment mittimus, committing him to the custody of the Commissioner of Correction. His status as a sentenced prisoner, whether it is referred to as escape status or being AWOL, did not change." Id., at 28-29. The petitioner's lengthy brief is devoid of any legal authority in support of the claim that escape or AWOL status can be considered as part of any term of confinement, let alone a continuous term of confinement.
"Dead time" can be time spent in custody that is not credited toward the sentence. For example, if a sentenced prisoner is both serving a sentence as well as simultaneously being held in lieu of bond, the time such prisoner spends held in lieu of bond is "dead time" that is not credited toward the sentence ultimately imposed. See State v. Hamilton, CT Page 6481 228 Conn. 234, 255, 636 A.2d 760 (1994) (Norcott, J., concurring). But see Parham v. Warden, 172 Conn. 126, 133, 374 A.2d 137 (1976) (issuance of arrest warrant stopped running of sentence and the ensuing period until return to custody became "dead time"). Thus, "dead time" is either time spent in custody which is not creditable toward a sentence or denotes time not in custody which cannot be credited toward a sentence.
While the petitioner correctly asserts that he was under a court order committing him to the custody of the Commissioner of Correction, the petitioner's status changed on June 6, 1983 from being released to furlough by the Commissioner to being absent without leave or having escaped. Clearly, the petitioner cannot simultaneously be in custody serving a court-imposed term of confinement and at the same time be AWOL or an escapee. The latter statuses do not merely imply, but mean by their very nature, that the individual is not in custody serving a sentence while AWOL or having escaped.
In State v. Simmat, 184 Conn. 222, 225-26, 439 A.2d 915 (1981), the Supreme Court noted the following: "The decision of the legislature to treat a failure to return from furlough as an escape has a rational basis. The legislature was entitled to view the furlough program as a significant rehabilitative device that can be effective only if severe sanctions attend violations of furlough. That furlough violators are not likely to be violent in their escape, and are hence less likely than the ordinary escapee to provoke violence by corrections officers, is a matter that the legislature could rationally view as properly committed to the consideration of the trial court upon sentencing. Legislative distinctions between those who violate the conditions of a furlough and those who violate the conditions of a parole are as permissible, constitutionally, as those between parole violators and probation violators, which we have previously found to be constitutional.
General Statutes § 18-101a states that: "The Commissioner of Correction at his discretion may extend the limits of the place of confinement of a prisoner as to whom there is a reasonable belief he will honor his trust, by authorizing him under prescribed conditions to visit a specifically designated place or places, within or without the state, for periods not exceeding fifteen days and return to the same or another institution or facility. Such periods may be renewed at the discretion of the commissioner. Such furlough may be granted only to permit a visit to a dying relative, attendance at the funeral of a relative, the obtaining of medical services not otherwise available, the contacting of prospective employers, or for any compelling reason consistent with rehabilitation. Any inmate who fails to return from furlough as provided in the furlough agreement shall be guilty of the crime of escape in the first degree." (Emphasis added.)
General Statutes § 53a-169(a) states in relevant part that: "A person is guilty of escape in the first degree . . . (4) if he fails to return from a furlough authorized under section 18-101a[.]" Under General Statutes § 53a-169(b), escape in the first degree is a class C felony. The imprisonment for a conviction of escape in the first degree, as per General Statutes § 53a-35a(6), shall be a definite sentence for "a term not less than one year nor more than ten years[.]"
". . . The legislature could rationally consider a furlough as only a temporary geographical enlargement of the inmate's custody, and hence treat a failure to return from furlough as a violation of custody akin to a direct escape over prison walls." (Emphasis added.) (Internal citations omitted.)
Based on the foregoing, this court finds that the petitioner was not in custody while on AWOL or escapee status. The next issue then becomes whether or not the petitioner is entitled to have the time period that he was not in custody, albeit still under the requirement to serve the remainder of the court-imposed sentence, count toward being a continuous term of confinement for statutory good time purposes. It is "the execution of the mittimus delivering the petitioner to the custody of the warden . . . [that results in a sentenced prisoner being] "held". . . for the purposes of 18-7[.]" Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994); Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981).
General Statutes § 18-7 in relevant part states: "When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section."
A judgment mittimus issued by the clerk communicates to the Commissioner of Correction the sentence or sentences imposed by a court. Furthermore, the mittimus itself is an order directed to the Commissioner to detain an individual until either the expiration of the to-serve portion of a sentence or further order of the court. The court-ordered-term of incarceration contained within the mittimus is what places the sentenced individual into the custody of the Commissioner. That is, the sentenced individual is "held" on a sentence once such individual is delivered, together with a mittimus, to the custody of the Commissioner of Correction.
Mittimus is defined as "[a] court order or warrant directing a jailer to detain a person until ordered otherwise; . . . [a] certified transcript of a prisoner's conviction or sentencing proceedings." BLACK'S LAW DICTIONARY 1018 (7th ed. 1999).
General Statutes § 18-18 states in relevant part that "[i]f any escaped prisoner is retaken and recommitted, . . . the time between the escape of any prisoner and his recommitment shall not be computed as part of his term of imprisonment." Consequently, the time period from June 6, 1983 to June 27, 1983, during which the petitioner was listed as AWOL or an escapee, cannot by operation of statute count toward the term of imprisonment. If the petitioner was not in custody and also cannot have the time period count toward his sentence, the arguments made by the petitioner that the time period from June 6, 1983 to June 27, 1983 did not create a legal break in his confinement are without any support. To the contrary: the 22-day period from June 6, 1983 to June 27, 1983 is, by operation of General Statutes § 18-18, a legal break in the term of confinement.
Consequently, and based upon the foregoing, this court finds that the time period of June 6, 1983 to June 27, 1983 is a break in the petitioner's term of confinement that disrupts and interrupts the continuity of the term of confinement. Such interruption of continuity severs what potentially could have been one continuous term of confinement into a term that is not continuous.
The flaw in the petitioner's argument is no more evident than in the following hypothetical. Assume that a defendant sentenced in absentia for an offense that occurred prior to October 1, 1994. Under the argument made by the petitioner in this case, such a sentenced individual is not in custody but is under a court-imposed sentence. Such a hypothetical individual cannot be eligible to begin earning statutory good time until he is held by the Commissioner of Correction by order of the mittimus. Assuming the hypothetical inmate serves a continuous term of confinement, there is one continuous term starting at such time he comes into custody on the mittimus. Failure to be in custody on a mittimus is, however, not part of any term of confinement and cannot comprise part of one continuous term of confinement.
Lastly, this court notes that it is firmly established that statutory good time was designed to reward good behavior. Rivera v. Commissioner of Correction, supra, 254 Conn. 240. "[G]ood time is a commutation of a sentence, affecting an inmate's parole and discharge dates, thereby serving an important rehabilitative function by allowing an inmate to earn an earlier release for himself." Id., at 247-48, citing Holmquist v. Manson, 168 Conn. 389, 393-94, 362 A.2d 971 (1975). The petitioner in the instant petition stands convicted of committing a murder on June 24, 1983, a day on which he was AWOL or an escapee. The petitioner's commission of such a serious offense, while on furlough, could not be clearer proof that the petitioner failed to avail himself in a meaningful way of the significant rehabilitative device provided by the legislature. As is evident from the discussion in Simmat, the legislature intended severe sanctions to result from violations of furlough. In the instant matter, one such result is the disruption of the petitioner's term of confinement, which in turn results in the petitioner being ineligible for a Rivera-type transfer of statutory good time credits because there was not one continuous term of confinement.
Viewing the evidence in the light most favorable to the nonmovant, the respondent, a directed verdict cannot enter in favor of the petitioner. There being no additional facts remaining to be brought before the court during a trial on the merits, this court finds that the petition must be denied because the petitioner is not entitled, as a matter of law, to the relief he seeks.
Petitioner's motion for summary judgment is denied. Furthermore, the petitioner is not entitled to the relief he seeks. Judgment is entered denying the petition for a writ of habeas corpus.
S.T. FUGER, JR., JUDGE