Opinion
No. CV98-2761
March 6, 2006
MEMORANDUM OF DECISION
On May 21, 2003, this court rendered judgment in the instant matter, as articulated in its memorandum of decision. The petitioner appealed after the court granted the petition for certification to appeal. The Appellate Court mostly affirmed this court, although it reversed the judgment in part and remanded the case so that this court could determine the petitioner's release date in accordance with the Appellate Court's decision. Whitaker v. Commissioner of Correction, 90 Conn.App. 460 (2005). The petitioner then filed a motion for reconsideration en banc, that was denied. Thereafter, the petitioner filed a petition for certification to appeal with the Supreme Court, that was denied on November 9, 2005. Whitaker v. Commissioner of Correction, 276 Conn. 918 (2005). The matter was then set down for a hearing so that this court could determine, in accordance with the remand, the petitioner's release date.
The parties then appeared before this court for a hearing on December 21, 2005, and again on January 30, 2006, at which time the hearing on remand concluded. The court received testimony from the petitioner and Department of Correction Record Specialist II, Mary Jane Steele, and several documents were entered as exhibits. This court rendered a partial ruling after the hearing completed. See signed the transcript of January 30, 2006, appended to the memorandum of decision as "Attachment A."
The court makes the following findings of fact based on the evidence presented.
FINDINGS OF FACT
1. Subsequent to the Appellate Court's decision in Whitaker v. Commissioner of Correction, 90 Conn.App. 460 (2005), the Department of Correction recalculated the petitioner's discharge date from docket number 29,896 ("docket 3").
The only claim raised on appeal in which the petitioner prevailed was that ". . . the respondent improperly applied the `relation back' doctrine found in § 53a-38(c). Specifically, the petitioner contend[ed] that the concurrent forty year sentence should have commenced on the date of the original docket 3 sentence after it merged with the sentences on dockets 1 and 2." Whitaker v. Commissioner of Correction, supra, 90 Conn.App. 484-85. The Appellate Court held that ". . . by operation of 53a-38(c), the resentence must by calculated as if it had commenced at the time the vacated sentence commenced, in this case, on February 27, 1985. Additionally, the time served on the original docket 3 sentence must be credited against the resentence." (Emphasis added.) Id., at 486. The Appellate Court then specified how the docket 3 sentence was to be calculated and what credits must be applied. The respondent performed the recalculation in accordance with the Appellate Court's decision.
2. The respondent has credited the petitioner with 5,640 days of statutory good time credits for the 40-year sentence imposed in docket 3. Because Wilson v. Commissioner of Correction, 34 Conn.App. 503, 509 (1994) ("the plain language of § 18-7 requires that multiple sentences be aggregated for purposes of calculating good time"), applies to the petitioner's sentences, the respondent has credited the petitioner with an additional 83 days of statutory good time. Thus, the respondent has credited docket 3 with a total of 5,723 days of statutory good time.
3. The recalculation resulted in the petitioner being credited on docket 3 with a total of 713 days of credit as time served, representing the time period of February 27, 1985 to February 10, 1987.
The authority for this is the following: "To calculate the petitioner's sentence, . . . as of February 27, 1985, the forty year sentence merged with the sentences on dockets 1 and 2, and the new aggregate sentence is controlled by the forty year sentence imposed on docket 3. The time served by the petitioner from February 27, 1985, should be counted as postconviction confinement time." (Emphasis added.) Whitaker v. Commissioner of Correction, supra, 90 Conn.App. 486 and n. 31.
4. The recalculation also resulted in docket 3 being credited with a total of 83 days of presentence confinement credit, representing the time period of February 10, 1983 to May 3, 1983. The petitioner also was credited on docket 3 with 27 days of presentence confinement good time.
The respondent's computation that the petitioner is entitled to 83 days of presentence confinement is based on Harris v. Commissioner of Correction, 271 Conn. 808 (2004), Cox v. Commissioner of Correction, 271 Conn. 844 (2004), and Hunter v. Commissioner of Correction, 271 Conn. 856 (2004). The origin of the 83 days is readily ascertained. The Appellate Court, relying on the Harris, Cox and Hunter trilogy noted that "[i]n the present case, after the respondent applied the petitioner's 261 days of presentence confinement credit to docket 1, that time could not be included in the 344 days credited by the court in docket 3. Accordingly, the petitioner's discharge date must be recalculated. See Cox v. Commissioner of Correction, supra, 271 Conn. 853, 855." Whitaker v. Commissioner of Correction, supra, 90 Conn.App. 476. See also Whitaker v. Commissioner of Correction, supra, 90 Conn.App. 460 n. 9. The required reduction from 344 days by 261 days results in 83 days presentence confinement credit that can be posted to docket 3.
5. The time sheet prepared by the respondent, while not dated, shows a posting on November 1, 2005 for five days of 7-day job credit.
6. As a result of this recalculation and the posting of the aforementioned credits, the petitioner's discharge date is estimated as April 6, 2008 on the time sheet entered intoevidence.
This advances the petitioner's discharge date from docket 3 by 56 days, namely from June 1, 2008 to April 6, 2008. If the petitioner continues to receive 7-day job credit and does not forfeit any good time credits for disciplinary violations, his discharge date will advance even further. Record Specialist II Steele testified that since the production of the time sheet, the petitioner had earned another twelve or thirteen days of 7-day job credit. This testimony was further clarified in that Ms. Steele stated the petitioner would be credited on February 1, 2006 with thirteen days of 7-day job credit. With that 13-day credit the petitioner's estimated discharge date from docket 3, at the time of the January 30, 2006 hearing on remand, was March 24, 2008.
DISCUSSION
The court has made, as previously indicated, certain factual findings that are in the signed transcript appended to this memorandum of decision. The sole remaining issue addressed by this memorandum of decision is the petitioner's contention that he is entitled to have twenty-six (26) additional credits posted to the docket 3 sentence. That is, the petitioner claims the respondent has failed to credit him with 26 days. While the petitioner's claims have been fully adjudicated, the determination of the petitioner's discharge date from docket 3 is why the matter was remanded to this court. Consequently, the court will address the disputed 26 days to determine whether or not the petitioner is entitled to that credit.
The petitioner claims that he is due a total of 109 days of presentence confinement credit. The respondent has, however, credited the petitioner with 83 days of presentence confinement credit representing the time period of February 10, 1983 to May 3, 1983. The petitioner did not present any evidence as to how, and from where, the 26-day difference comes. However, given that the 26 days cannot arise from changing the May 3, 1983 date, the 26 days the petitioner is seeking must come from a deviation from the February 10, 1983 start date. It is readily ascertained that January 15, 1983 is 26 days prior to February 10, 1983.
Again, it must be emphasized that the petitioner received credit from May 4, 1983 forward on his docket 1 sentence. Under Harris, Cox and Hunter, days credited on docket 1 (i.e., days from May 4, 1983 and on) that the petitioner was also held in presentence confinement on docket 3, when the sentencing dates for dockets 1 and 3 are not identical, may not again be credited on docket 3.
A review of the record does not show any basis for giving the petitioner presentence confinement credit starting on January 15, 1983. Quite the contrary: the parties' stipulation of facts, as adopted by this court in its May 21, 2003 memorandum of decision, leads to the unassailable conclusion that the petitioner was held in presentence confinement in docket 3 starting February 10, 1983. The Appellate Court's decision, which is based on the record, also found that the petitioner was held on docket 3 in presentence confinement starting February 10, 1983. Whitaker v. Commissioner of Correction, supra, 90 Conn.App. 463. The petitioner here has not presented any evidence that he is entitled to have more than 83 days of presentence confinement credit applied to the docket 3 sentence, nor has he shown that he was held in lieu of bond on docket 3 prior to February 10, 1983.
In accordance with the Appellate Court's remand, this court finds that at the time of the January 30, 2006 hearing on remand, the petitioner's discharge date from docket 3 is March 24, 2008. Should the petitioner continue to earn 7-day job credits and not forfeit any earned credits, the discharge date from docket 3 will continue to advance.
ATTACHMENT A RULING
THE COURT: All right. Well, I'm going to issue partially an oral decision and partially a written decision.
I'm going to make a finding of fact that as of today, January 30th, the Department of Correction would anticipate Mr. Whitaker's release date to be March 24th, 2008.
Mr. Whitaker's position is that his release date is April 6, 2007.
Included within this difference is 344 days of jail credit that had to be taken away with the Hunter trilogy of cases.
I'm going to deny Mr. Whitaker credit for that because I have no choice. The law in Connecticut is now clear that those days were credited to an earlier docket are gone and cannot be used again.
So, to the extent you need a final state decision to have entree into federal court, you may consider that you've got this as of today.
MS. PIESZAK: Thank you, Your Honor.
THE COURT: I don't see . . . and honestly, I don't see this as an issue that you can take an appeal on because, quite frankly, I think it's been addressed by the appellate court in the original decision. So I would not grant a pet. cert. to take the matter back up to the appellate court because they've already dealt with it.
So I think as far as Connecticut goes in regard to that 344 days at least, you've exhausted all of your state court remedies and there's nothing more I can do for you in that regard.
All right. So that's the portion of the decision that I'm going to issue orally. The balance of the days, roughly the 26 days, I will take the papers and issue a decision on that.