Opinion
No. CV98-2761
May 21, 2003
MEMORANDUM OF DECISION
The petitioner filed a pro se petition for a writ of habeas corpus, which was amended several times, with the operative complaint captioned as Corrected Substitute Amended Petition (hereinafter `amended petition') being filed with the clerk on February 5, 2003. The respondent's final Return, the Amended Return filed with the clerk on April 30, 2003, denies the petitioner's claims and asserts three defenses. The petitioner filed a reply to the return and the defenses. The matter came before this court on May 1, 2003, for a trial on the merits.
Before this court heard or received evidence, counsel for both the petitioner and the respondent agreed that through the filing of the Amended Return, which corrected several minor typographical errors, there were no material issues of fact remaining to be tried to the court. This court agreed to take the matter on the papers and resolve the dispute between the parties, now limited to the application of the law to the facts, with the understanding that if the court found that additional testimony or evidence was necessary to resolve the claims, the matter would again come before the court so that counsel would have the opportunity to present such evidence.
The court has reviewed the pleadings and briefs and makes, based upon those facts alleged in the amended petition which are admitted to by the respondent, the following findings of fact. For the reasons set forth more fully below, judgment is entered in accordance with this memorandum of decision.
FINDINGS OF FACT
1. All of the offenses at issue in this matter occurred after July 1, 1981 and before July 1, 1983.
2. The petitioner was the defendant in State v. Darryl Whitaker, in the Superior Court, Judicial District of Fairfield at Bridgeport, Docket Number 29, 795 JD (hereinafter "docket 1").
3. The petitioner was held in pretrial confinement in docket 1 in lieu of bond in the custody of the respondent from November 10, 1982 until November 12, 1982.
4. The petitioner posted bond in docket 1 and was not held in respondent's custody from November 13, 1982 until May 4, 1983.
5. The petitioner was the defendant in State v. Darryl Whitaker, in the Superior Court, Judicial District of Fairfield at Bridgeport, Docket Number 29, 794 JD (hereinafter "docket 2").
6. The petitioner was not held in pretrial confinement in lieu of bond on docket 2 until May 4, 1983.
7. The petitioner was the defendant in State v. Darryl Whitaker, in the Superior Court, Judicial District of Fairfield at Bridgeport, Docket Number 29, 896 JD (hereinafter "docket 3").
8. Beginning February 10, 1983, the petitioner was held in the custody of the Department of Correction in presentence confinement in lieu of bond in docket 3.
9. From February 10, 1983 until the present, the petitioner has been continuously held in the custody of the Department of Correction.
10. On May 4, 1983, the court ordered the petitioner held in lieu of bond on both dockets 1 and 2.
11. From May 4, 1983 until January 20, 1984, the petitioner was held in presentence confinement in the respondent's custody on dockets 1, 2 and 3 simultaneously.
12. On January 20, 1984, the petitioner was sentenced by the Court, Callahan, J., in docket 1 to a sentence of five years to serve on count one, three months to serve on count two, and one year to serve on count three, all sentences to be served concurrently for a total effective sentence (hereinafter "TES") of five years.
13. On January 20, 1984, the petitioner ceased being held in presentence confinement in the custody of the Department of Correction, and began to be held as a sentenced prisoner.
14. On or about the date the petitioner was sentenced in docket 1 on January 20, 1984, the respondent merged the individual sentences imposed in docket 1 to arrive at a TES of five years.
15. On or about January 20, 1984, the respondent calculated the petitioner's total effective five-year sentence in docket 1 as having a discharge date of June 12, 1986.
16. The discharge date of June 12, 1986 was arrived at by the following calculations:
a. The sentence start date is determined to be the date of sentencing (1/20/84) plus stated length of sentence (five years) equals a maximum discharge date of January 19, 1989.
b. The statutory good time the inmate is eligible to earn during the full term of his sentence, based upon a calculation of ten credit days per month (and pro rata for any portion of a month) multiplied by the number of months in the stated term of the sentence imposed in the docket number (10 times 60 months) is posted as a credit (600 days) to arrive at a discharge date of May 30, 1987.
c. Dates spent in presentence confinement under a mittimus in docket 1 are determined to be from November 10, 1982 to November 12, 1982 and from May 4, 1983 to January 20, 1984, and converted to a number of days (261 days from May 4, 1983 to January 20, 1984 plus 3 days from November 10, 1982 until November 13, 1982, for a total of 264 days of jail credit).
d. The number of days of presentence confinement of docket 1 (264) are subtracted from the original calculation of the estimated discharge date (May 30, 1987) to arrive at a new estimated discharge date of September 8, 1986.
e. The respondent posted 88 days of presentence confinement good time credit to the petitioner's sentence in docket 1.
f. The 88 days presentence confinement good time credit is subtracted from the discharge date of September 8, 1986 to arrive a new discharge date of June 12, 1986.
17. On April 5, 1984, the petitioner was sentenced by the Court, Callahan, J., in docket 2 to a sentence of ten years, execution suspended after five years incarceration, followed by five years probation, to be served concurrently with the sentence imposed January 20, 1984 in docket 1.
18. The respondent calculated the discharge date for docket 2 to be August 26, 1986.
19. The respondent recalculated the discharge date in docket 1 to May 26, 1987 by removing 261 days of presentence confinement credit reflecting custody from May 4, 1983 until January 20, 1984, and removing 87 days of presentence confinement good conduct credit based upon those 261 days of confinement from docket 1.
20. The respondent removed the credits described in paragraph 19 above in order to apply those credits to docket 2, on the belief that the credits could not be applied to both docket numbers.
21. From April 1984 until August 1, 1984, the petitioner earned seven-day job credit totaling 12 days.
22. On November 16, 1984, the petitioner forfeited 30 days of good time credit, thereby increasing his discharge date in docket 1 to June 13, 1987.
23. On February 27, 1985, the petitioner was sentenced by the Court, Curran, J., in docket 3.
24. The sentence imposed in docket 3 was composed of sentences imposed on five separate counts of the information.
25. The individual sentences that composed the seventy-five year sentence in docket 3 were as follows:
a. Count one — 25 years;
b. Count two — 20 years;
c. Count three — 20 years;
d. Count four — 10 years;
e. Count five — 10 years.
26. The court ordered the sentences in counts one through four in docket 3 to be served consecutively with each of the preceding counts and consecutive to the sentences imposed in dockets 1 and 2.
27. The court ordered the sentence in count five in docket 3 to be served concurrently with the preceding counts and concurrently with the sentences previously imposed in dockets 1 and 2.
28. At the time the petitioner was sentenced in docket 3, he was held as a sentenced prisoner in dockets 1 and 2.
29. On the date the prisoner was sentenced in docket 3, he had already served 328 calendar days on the five-year sentence imposed April 5, 1984 in docket 2.
30. On February 27, 1985, the petitioner began serving the portion of the sentence in docket 3 that was ordered to be served concurrently with the sentences imposed in dockets 1 and 2.
31. The petitioner forfeited an additional 90 days of statutory good time credit between April 1, 1985 and February 10, 1987.
32. On February 10, 1987, the Connecticut Supreme Court in State v. Whitaker, 202 Conn. 259 (1987), ordered the judgment in docket 3 set aside and remanded the case to the Superior Court with an order for a new trial.
33. On July 10, 1987, the petitioner was convicted in docket 3 of the same five counts as he was in the initial disposition.
34. On July 10, 1987, the petitioner was sentenced in docket 3 by the Court, Reilly, J., to twenty years to serve on each of the five counts, with counts one and three to be served consecutively and counts two, four and five to be served concurrently for a total effective sentence of forty years to serve.
35. The petitioner is in the custody of the respondent pursuant to the July 10, 1987 judgment of the court.
36. As the result of the judgments in dockets 1, 2 and 3, the petitioner is serving one continuous term of confinement.
37. The respondent has calculated the discharge date of the forty-year sentence imposed July 10, 1987 as follows:
a. credited the petitioner's sentence in docket 3 with 344 days of presentence confinement credit, for the period of time he was held as a pretrial detainee from February 10, 1983 until January 20, 1984, when he was sentenced in docket 1;
b. did not reduce the discharge date of the forty-year sentence in docket 3 by the time served under and credited against Count five of the original sentence in docket 3 against the forty-year sentence in docket 3.
38. The petitioner appealed from the February 27, 1985 judgment.
39. The petitioner filed a prior habeas petition concerning the calculation of his sentence, docket number CV95-0371178 in the New Haven judicial district.
40. The prior habeas was withdrawn without prejudice.
DISCUSSION AND APPLICATION OF THE LAW TO THE FACTS
The proper application of sentence credits can best be described as a complicated process. There is a multitude of ways in which sentences can be imposed, dates may differ, some sentences may be concurrent, others consecutive. Dependent upon the date the offense was committed there may be different credits to be applied and earned. It is, therefore, easy to see why there are so many issues that involve the proper calculation of sentences. The instant case is a clear example of just how unclear this can become. This court has no doubt that the Department of Correction is attempting to operate in good faith in the manner in which it interprets and applies these computations. Likewise, the court fully understands the goals of the petitioner, who only seeks to receive appropriate credit on his sentence. This decision today is based upon the unique set of facts presented in the case at bar. As such, it is unlikely to have any widespread precedential value.
The petitioner was held in pretrial confinement in lieu of bond in docket 1 from November 10, 1982 to November 12, 1982, for an offense that occurred after July 1, 1981 and before July 1, 1983. The petitioner earned three days of jail credit on docket 1 as a result of that pretrial confinement. On February 10, 1983, the petitioner started being held in lieu of bond in docket 3 for an offense that occurred after July 1, 1981 and before July 1, 1983, and began earning jail credit on docket 3. On May 4, 1983, the petitioner again began accumulating jail credit in docket 1 and started accumulating jail credit in docket 2, the latter docket also involving an offense that occurred after July 1, 1981 and before July 1, 1983, as a result of the court order that the petitioner be held in lieu of bond in dockets 1 and 2. On January 20, 1984, the petitioner was sentenced in docket 1 as follows: Count One, five years to serve; Count Two, three months to serve; Count Three, one year; Counts One through Three to run concurrently, for total effective sentence of five years to serve.
In accordance with General Statutes § 18-7a (b) and the up-front posting method then utilized by the respondent; see Seno v. Commissioner of Correction, 219 Conn. 269, 275 (1991); the petitioner on or about January 20, 1984 was credited with any jail credit, jail credit good time and good time credits he was eligible for upon being sentenced. Such credits were applied to docket 1 so that the respondent could calculate a discharge date for docket 1. On or about January 20, 1984, the respondent calculated the petitioner's discharge date for the docket 1 sentence as being June 12, 1986. The petitioner's status upon being sentenced in docket 1 resulted in him no longer being held in presentence confinement; instead, the petitioner was a sentenced prisoner on docket 1 while simultaneously being held in lieu of bond on dockets 2 and 3.
General Statutes § 18-7a (b) provides: "Except as provided in subsection (c), any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1981, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee."
"[F]or purposes of administrative efficiency statutory good time was calculated and credited at the outset of a prisoner's sentence on the basis of the sentence imposed by the sentencing court. This method of awarding good time is commonly referred to as `posting.'" Seno v. Commissioner of Correction, supra, 219 Conn. 275. The legislature amended § 18-7a via Public Acts 1982, No. 82-379 by adding subsection (c). "The legislative history of Public Acts 1982, No. 82-379 demonstrates that the act was designed to attain two related objectives. First, the Legislature sought to return to the original concept behind good time, that is, the concept of reward for good behavior . . . The legislature's second objective was to eradicate an irrational consequence of the posting system. Because under the posting system, good time is credited at the outset of a sentence, some prisoners receive good time for time that they, in fact, never serve . . . [T]he predominant purpose of § 18-7a (c) was to eliminate the possibility of prisoners earning good time for time that is never served." Id., at 277-78.
On April 5, 1984, the petitioner was sentenced in docket 2 as follows: ten years, execution suspended after five years incarceration, with five years probation, to be served concurrently to the sentence imposed in docket 1. Again utilizing the up-front posting method then employed, the respondent credited docket 2 with its appropriate jail credit, jail credit good time and good time. The petitioner now was a prisoner sentenced on different dates on two separate dockets and continued his pre-sentence status in docket 3. The respondent, who must comply with General Statutes § 53a-38, merged the sentences imposed in dockets 1 and 2 to determine which of the two sentences had the longest to run. The respondent calculated the discharge date for docket 2 to be August 26, 1986.
General Statutes § 53a-38 (b) provides: "A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest to run; (2) if the sentences run consecutively, the terms are added to arrive at an aggregate and are satisfied by discharge of such aggregate term."
The findings of fact show that the respondent recalculated the discharge date for docket 1 by removing 261 days, reflecting the time period of May 4, 1983 to January 20, 1984, together with 87 days of presentence confinement good time credit, from docket 1 and applying them to docket 2. The respondent transferred these credits based on the belief that the credits could not be applied to both docket numbers.
This court notes that this method is incorrect. In accordance with the calculation method endorsed by the Payton court, the respondent must treat each docket's presentence confinement credit separately and cannot transfer such credit from one docket to another. In calculating each docket's discharge date, however, the same time periods or calendar days can be utilized to calculate each docket's respective discharge date. Any presentence confinement credit that is unique to a docket can only be posted or applied to that docket. Conversely, any presentence confinement credit that is not unique to a docket can be posted or applied to any of the dockets where such credit was earned, with the limitation that each calendar day can only be posted or applied once.
Given the facts of this case, the presentence confinement credit for dockets 1 and 2 is identical: 261 days, reflecting the time period from May 4, 1983 through January 20, 1984. While this time frame must be utilized separately to determine each docket's discharge date, the credit can be applied to either docket, with the caveat that each calendar day can only be applied once. Payton v. Albert, 209 Conn. 23, 30 (1988); General Statutes § 18-98d. The credit is appropriately applied to the sentence that has the longest to run, in this case, docket 2, until such time that the petitioner came into the custody on the docket 3 sentence. Because the petitioner was held in lieu of bond on docket 3 from May 4, 1983 to January 20, 1984, the 261 days are again utilized to calculate the discharge date for docket 3. Because docket 3 has the longest to run, the 261 days should be posted or applied to docket 3.
As to the 87 days of presentence confinement good time credit transferred from docket 1 to docket 2, the following discussion in Rivera v. Commissioner of Correction, 254 Conn. 214, 253-54 (2000), addresses the appropriateness of such a transfer: "Having concluded that the legislature intended that an inmate who, like the petitioner, is entitled to have the statutory good time credit that he earned on one sentence applied to a subsequent, controlling concurring sentence, we see no logical reason to conclude otherwise with respect to presentence good time credit. Although, as we have indicated, there is a distinction between jail time credit and statutory good time credit, no such distinction may be drawn between presentence good time credit and statutory good time credit merely because the former is earned prior to sentencing and the latter is earned after sentencing." The Supreme Court furthermore noted that "To the extent that our holding in Payton may be interpreted as encompassing presentence good time, that portion of Payton applicable to presentence good time is overruled." Id., at 255 n. 44.
Rivera addressed the carrying forward of earned credits to a subsequent, controlling concurrent sentence. General Statutes § 18-98d (b) provides that: "In addition to any reduction allowed under subsection (a) of this section, if such person obeys the rules of the facility such person may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or five hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against such person may not be counted more than once in computing a good conduct reduction under this subsection." (Emphasis added.)
The language in subsection (b) preventing the double counting of credits mirrors the language in subsection (a) of § 18-98d. Thus, while the same calendar days can be utilized more than once in calculating dockets' discharge dates, any particular calendar day can only be applied or posted (i.e., counted) once. To summarize, while Rivera allows for carrying forward presentence confinement good time credit to another docket, § 18-98d (b) prevents the double counting of the same calendar days.
On February 27, 1985, the petitioner was sentenced in docket 3 as follows: Count One, twenty-five years; Count Two, twenty years; Count Three, twenty years; Count Four, ten years; and Count Five, ten years. The sentences in Counts One through Four were ordered to be served consecutively with each of the preceding counts and consecutive to the sentences imposed in dockets 1 and 2. The sentence imposed on Count Five was, however, ordered to run concurrently with both the sentences in Counts One through Four and the sentences in dockets 1 and 2. The total effective sentence imposed in docket 3, thus, was seventy-five years, to run consecutive to the sentences in dockets 1 and 2.
While it is correct that on February 27, 1985, the petitioner began serving the ten-year sentence imposed in Count Five of docket 3, the total effective sentence for docket 3 was seventy-five years, consecutive to the sentences in dockets 1 and 2.
As a result of the February 27, 1985 sentencing, the petitioner was a sentenced prisoner on dockets 1, 2 and 3. The total effective sentence in docket 3, a sentence ordered to run consecutive to those imposed in dockets 1 and 2. As was done in dockets 1 and 2, the respondent posted docket 3's jail credit, jail credit good time and good time to calculate a discharge date for docket 3. The respondent, in accordance with General Statutes § 53a-38 (b) (2), added the term for docket 3 to the merged sentences from dockets 1 and 2 to arrive at an aggregate term, from which the petitioner would discharge after having served the sentences imposed on dockets 1, 2 and 3.
On February 10, 1987, the Connecticut Supreme Court found error in the docket 3 convictions, set aside the judgment and ordered a new trial. State v. Whitaker, supra, 202 Conn. 274. As a result of the Supreme Court's decision, the petitioner returned to the status of being held in lieu of bond in docket 3, though he was still a sentenced prisoner serving the merged sentences imposed for dockets 1 and 2. On July 10, 1987, the petitioner was again convicted in docket 3 of the same five counts as he was previously. The petitioner was again sentenced in docket 3, though the sentences the second time were as follows: on each of the five counts, twenty years, with Counts One and Three to be served consecutively to each other and Counts Two, Four and Five to be served concurrent with each other and to Counts One and Two. The total effective sentence imposed on July 10, 1987 was forty years to serve, concurrent with the sentences in dockets 1 and 2.
This Court notes that the judgment mittimus for the sentences imposed in docket 3 on July 10, 1987, which is attached to the respondent's revised return, does not indicate whether the total effective sentence of forty years is run concurrent or consecutive to any other sentences then being served. The respondent is, however, treating the forty-year sentence as being imposed to run concurrent to any sentences then being served. Revised Return, at 3.
Following the July 10, 1987 sentencing for docket 3, the respondent again calculated a discharge date utilizing the up-front posting method. Because the forty-year total effective sentence was ordered to be served concurrently, that sentence is merged with the sentences imposed in dockets 1 and 2, the merged term being "satisfied by discharge of the term which has the longest term to run." General Statutes § 53a-38 (b) (1). To correctly calculate the appropriate credits, the respondent now also had to comply with the requirements of General Statutes § 53a-38 (c).
General Statutes § 53a-38 (c) 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 several times upheld the decisions of habeas courts "to treat time served on a vacated sentence as presentence time and to credit the time accordingly in calculating sentence credits." Casey v. Commissioner of Correction, 215 Conn. 695, 699 (1990). See also Sutton v. Lopes, 202 Conn. 343 (1987). "The Supreme Court . . . affirmed the trial court's order [in Casey] that the commissioner treat the defendant's sentence as having commenced on the date it was imposed and credit the time served prior thereto as presentence time." Raucci v. Warden, 30 Conn. App. 190, 197, cert. denied, 225 Conn. 915 (1993), citing Casey v. Commissioner of Correction, supra, 215 Conn. 697.
In Steve v. Commissioner of Correction, 39 Conn. App. 455, 463-64, cert. denied, 235 Conn. 929 (1995), the Appellate Court "agree[d] with the habeas court that the time served on the vacated sentence must be treated and credited as post-conviction confinement. To fail to do so would be a violation of the fifth amendment guarantee against double jeopardy. The constitutional guarantee against multiple punishments for the same offense requires that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense. Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.
"General Statutes § 53a-38 (c) requires some form of credit for time served. The clear statutory intent is to satisfy the due process requirement that time served under a vacated sentence must be credited against a later sentence for the same act so as to comply with the dictates of North Carolina v. Pearce, [ 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d (1989)]. If the time served under the vacated sentence is considered presentence time, under § 18-98d, the time served after . . . the date the second sentence began . . . would not be credited to the new sentence, which would be a clear violation of Pearce and its progeny." (Internal citations and quotation marks omitted.)
General Statutes § 18-98d (a) provides that: "(1) Any person who is confined to a community correctional center or a 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 this 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 a term of imprisonment at the same time such person is in presentence confinement on another charge and the conviction for 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. In the case of a fine, each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of fifty dollars."
In Steve, the Appellate Court also "held that a petitioner who is serving a concurrent sentence between the time of his successful appeal and his reconviction and resentencing on two vacated charges does not receive credit during that period toward the resentencing pursuant to General Statutes § 18-98d, which eliminates credit for time spent serving a sentence on another charge. In Steve v. Commissioner of Correction, supra, 467-69, we based our ruling on United States v. Markus, 603 F.2d 409 (2d Cir. 1979), and Thacker v. Garrison, 527 F.2d 1006 (4th Cir. 1975) (per curiam), which ruled that North Carolina v. Pearce, [ supra], precluded imposition of multiple punishments for the same act but does not give the petitioner who is convicted of multiple offenses a right to apply one punishment to all offenses. United States v. Markus, supra, 412. We note in this case, as in Steve v. Commissioner of Correction, supra, 469, that there is no claim that any time or credit from the vacated sentence was not applied nor is there a claim or a factual predicate that the new sentence increased the severity of the punishment of the petitioner." Graham v. Commissioner of Correction, 39 Conn. App. 473, 476-77, cert. denied, 235 Conn. 930 (1995).
In Steve, the petitioner had claimed on appeal that the habeas court erred in denying credit for "the time period from July 1, 1988, the tenth day after the decision of the Supreme Court, to July 21, 1988, the date the petitioner entered pleas of nolo contendere and was resentenced[.] The issue [wa]s whether the petitioner, who was serving a concurrent sentence between the time of his successful appeal and his reconviction and resentencing on the charges that had been vacated, should receive credit on the time served during that period toward those charges." Steve v. Commissioner of Correction, supra, 39 Conn. App. 467. The Appellate Court found that "[t]he petitioner [wa]s not entitled to additional credit on this issue on his resentence on the vacated charges" and "that for the period from July 1 to July 21, 1988, the applicable statute is § 18-98d, which eliminates credit for time spent in custody while serving a sentence on another charge after the successful appeal and while awaiting retrial." Id., at 469.
Viewing Steve and Graham in conjunction with Casey, it is clear that time actually served on a vacated sentence, including the time the successfully-challenged sentence is appealed and any relevant stay period, must be treated and credited as post-conviction confinement and appropriately applied upon a re-sentencing for the same offenses, regardless of whether or not another sentence is being served at that time. Any time spent in custody awaiting retrial, including time spent awaiting retrial subsequent to conclusion of an appeal and any relevant stay period, must be treated as presentence confinement credit. Under General Statutes § 18-98d, such presentence confinement credit is eliminated if the individual awaiting retrial is serving another sentence distinct from those successfully appealed.
The determination of whether the petitioner in the present matter should be given any presentence credit on docket 3's vacated sentence, a time period from February 27, 1985 through February 10, 1987, is complicated by how the individual sentences were imposed by the sentencing court on February 27, 1985. The four counts that comprise the total effective sentence, Counts One through Four, were ordered to be served consecutively to each other and to the docket 1 and 2 sentences. These four individual sentences, when added up, result in the total effective sentence of seventy-five years, to be served consecutive to the docket 1 and 2 sentences. Thus, the total effective sentence imposed on February 27, 1985 does not even begin to run until the term resulting from the merged docket 1 and 2 sentences expired.
However, Count Five of the February 27, 1985 sentence was ordered to be served concurrent with Counts One through Four and concurrent with the sentences in dockets 1 and 2. Thus, the petitioner came into the respondent's custody for docket 3 on February 27, 1985, though only Count Five began to run at that time. General Statutes § 53a-38 (b). The respondent would then merge the ten-year sentence imposed in Count Five with the term resulting from the merged docket 1 and 2 sentences. General Statutes § 53a-38 (b) (1). The term resulting from the merger of Count Five and dockets 1 and 2 would expire upon the discharge from the term that has the longest to run, which in this case is the ten-year sentence for Count Five. Id. Count Five became the controlling sentence until such time as the latest of the sentences in either docket 1 or 2 expired, at which point the total effective sentence of seventy-five years immediately became the petitioner's controlling sentence.
The ten-year sentence is the controlling sentence only for the duration of the merged sentences in dockets 1 and 2. But the actual extent to which the ten-year sentence controls the petitioner's discharge date becomes evident through the operation of the consecutive seventy-five year sentence: the ten-year sentence imposed in Count Five is never the controlling sentence.
The result of how the sentence for Count Five was imposed on February 27, 1985 is that the ten-year sentence either is being served at the same time as is the merged term from dockets 1 and 2 or is completely subsumed by the seventy-five year sentence that will begin to run when the merged term from Count Five and dockets 1 and 2 expires. Stated differently, at no time during the to-serve portion of the sentence imposed for Count Five would the petitioner only be serving a sentence for Count Five. Nevertheless, the petitioner was in custody on docket 3 from February 27, 1985 until February 20, 1987, which is ten days after the Supreme Court decided the petitioner's appeal on February 10, 1987. Steve v. Commissioner of Correction, supra, 39 Conn. App. 465-66.
As the Supreme Court has noted, "the fundamental purpose of § 53-38 (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 (2001). See also Steve v. Commissioner of Correction, supra, 39 Conn. App. 463-64. Time actually served on a vacated sentence must be credited if re-sentenced for the same offense to avoid double jeopardy problems. In the present matter, the petitioner was in custody only for the ten-year sentence imposed on February 27, 1985 for Count Five. The petitioner was subsequently re-sentenced on July 10, 1987 for the very same offense in Count Five. Thus, the petitioner must receive the appropriate post-conviction credit for upon being re-sentenced for the same offense.
The petitioner was re-sentenced for the Count Five offense on July 10, 1987, to a term of twenty years. The twenty-year sentence in Count Five was ordered to run concurrent with Counts Two and Five and concurrent with Counts One and Three, these latter two counts to be served consecutively, said consecutive sentence comprising the total effective sentence of forty years. Upon the resentencing on July 10, 1987, the petitioner immediately came into the custody of the Commissioner of Correction on Count Five. The petitioner must receive credit for the time served on Count Five upon re-sentencing for that count, but that does not give the petitioner a right to apply credit for that offense to all offenses. Graham v. Commissioner of Correction, supra, 39 Conn. App. 477. Consequently, the petitioner shall receive credit for the time period from February 27, 1985 to February 27, 1987, when he was serving the ten-year sentence on Count Five, in the form of post-conviction credit applied to only the twenty-year sentence imposed on July 10, 1987 for Count Five. The total effective sentence imposed on July 10, 1987 remains unaltered at forty years.
As already indicated, the petitioner has been under one continuous term of confinement from February 10, 1983 to the present. In Rivera v. Commissioner of Correction, 254 Conn. 214 (2000), which similar to the present petition, "involved multiple sentences for crimes that were all committed prior to October 1, 1994," . . . the Supreme Court's "determination of the issues . . . affected numerous persons who . . . were sentenced for crimes committed before October 1, 1994." (Internal citations omitted.) Tyson v. Commissioner of Correction, 261 Conn. 806, 822-23 (2002), cert. denied, (2003). The Tyson court noted in 2002 that "although Rivera is inapplicable to the facts [before the court in Tyson], Rivera remains applicable to sentences imposed in connection with crimes committed prior to October 1, 1994." Id., at 823 n. 17.
A noteworthy aspect of Rivera is that the Supreme Court declined to overrule Howard v. Commissioner of Correction, 230 Conn. 17 (1994), which had "held that all of [the petitioner's] sentences, whether consecutive or concurrent and regardless of when they had been imposed, must be treated as one continuous term for purposes of applying statutory good time credit that he had earned under 18-7a (c)." (Emphasis added.) Rivera v. Commissioner of Correction, supra, 254 Conn. 232. General Statutes § 18-7a (c) is not the section applicable to the present petition because the offenses date for dockets 1, 2 and 3 are all after July 1, 1981 and before July 1, 1983. Instead, General Statutes § 18-7a (b) applies to all the petitioner's sentences. The relevance of § 18-7a (b) being the applicable subsection is that under that section, statutory good time credits are posted utilizing the up-front posting method. Inmates sentenced for offenses occurring on or after July 1, 1983, conversely, earn good time credits as such sentence is served.
In Rivera, "the commissioner claim[ed] . . . that the one continuous term requirement of § 18-7 should not apply to § 18-7a (c). Specifically, the commissioner contend[ed] that the method mandated by the legislature for calculating good time under § 18-7a (c), which differs from the method pursuant to which such credit is calculated under subsections (a) and (b), suggests that the legislature intended to eliminate the one continuous term requirement of § 18-7 for purposes of good time calculations under § 18-7a (c). [The Supreme Court] disagree[d] with the statutory interpretation advanced by the commissioner.
"Under subsections (a) and (b) of § 18-7a, for purposes of administrative efficiency statutory good time was calculated and credited at the outset of a prisoner's sentence on the basis of the sentence imposed by the sentencing court. This method of awarding good time is commonly referred to as posting. Because, under the posting system, good time is credited at the outset of a sentence, some prisoners receive good time for time that they, in fact, never serve.
"In 1982, the legislature amended § 18-7a by adding subsection (c); see Public Acts 1982, No. 82-379, § 1; which governs the calculation of good time credit for sentences imposed for offenses committed on or after July 1, 1983. The purpose of that statutory amendment was to abolish the posting system for prisoners whose good time calculations are governed by § 18-7a (c), thereby eliminating the possibility that any of those prisoners would be credited with good time that they never earn. The legislature accomplished this goal by expressly providing that any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may earn a reduction of his or her sentence only as such sentence is served." General Statutes (Rev. to 1997) § 18-7a (c).
"The commissioner claim[ed] that this amendment is inconsistent with the relevant language of General Statutes § 18-7, which provides in relevant part: "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. In particular, the commissioner claims that, under subsection (c) of § 18-7a, good time credit no longer is estimated as it is pursuant to the posting system utilized to calculate good time credit under subsections (a) and (b) of § 18-7a and that, consequently, the one continuous term language of § 18-7 is not applicable to § 18-7a (c). [The Supreme Court was] not persuaded by this argument.
"Estimating good time credit is no more or less a part of the posting system employed by the commissioner under § 18-7a (a) and (b) than it is for purposes of determining such credit under § 18-7a (c). Rather, the use of the term `estimating' in § 18-7 merely reflects the reality that an inmate may forfeit some of the good time credit that he or she otherwise would be expected to accrue under the applicable subsection of § 18-7a. Of course, the forfeiture of good time credit can occur regardless of which subsection of § 18-7a happens to apply in any given case. In fact, the petitioner in [ Rivera] had forfeited good time credit on several occasions, thereby causing his estimated release date to change.
"Moreover, the commissioner's contention finds no support in the legislative history of § 18-7a (c), which [the Supreme Court] previously examined in detail in Seno v. Commissioner of Correction, supra, 219 Conn. 269: The legislative history of that statutory subsection demonstrates that it was designed to attain two related objectives. First, the legislature sought to return to the original concept behind good time, that is, the concept of reward for good behavior. Senator Nancy L. Johnson defined this objective, stating: `All this bill really does is to return the initial concept of good time which was a concept of reward. A reward for good behavior. When you deduct the entire amount at the front end of the sentence, then what you revert to is the system of punishment for poor behavior. So that instead of granting good time you actually end up earning penalties for poor behavior. All it means is that the reward will not be front-ended. The reward must be earned and, indeed, good time will reduce the sentence. The importance of this amendment is that it returns to the original sound concept of good time which is a concept of reward for good behavior rather than a concept of punishment for failure to provide good behavior.' 25 S.Proc., Pt. 12, 1982 Sess., pp. 3826-27.
"The legislature's second objective was to eradicate an irrational consequence of the posting system. Because, under the posting system, good time is credited at the outset of a sentence, some prisoners receive good time for time that they, in fact, never serve. As Representative Christopher Shays explained: `We compute good time under § 18-7a (a) saying the person is going to serve the whole ten years, so he earns five years based on ten days a month and then he has five years based on fifteen days a month, assuming that he is in jail for the whole ten years. And so what you end up with is a sentence where an individual gets out before he even serves the full sentence earning the good time.' 25 H.R.Proc., Pt. 11, 1982 Sess., p. 3551. For example, pursuant to the posting method, a prisoner sentenced to a term of seven years imprisonment is awarded good time for eighty-four months of service. If the prisoner exhibits good conduct and obedience and, therefore, retains the good time, he will serve 54.4 months. Consequently, the prisoner receives good time for 29.6 months of time that he never serves. There is nothing in the relevant legislative history to suggest that § 18a-7a (c) was intended to accomplish anything more than ensuring that, for any sentence imposed for an offense committed on or after July 1, 1983, an inmate will not receive good time credit for time he has not served. The legislature achieved this objective by eliminating the posting method in such cases." (Internal citations and quotation marks omitted.) Rivera v. Commissioner of Correction, supra, 254 Conn. 237-41.
In essence, if a petitioner is serving one continuous term of confinement, all the sentences imposed that comprise the one continuous term are, regardless of whether the sentences are to be served concurrently or consecutively, viewed and treated as a single total effective sentence for the purpose of properly crediting good time. Howard v. Commissioner of Correction, supra, 230 Conn. 23-24. All earned good time credits that have not been forfeited, the earning of which creates a recognized liberty interest to such credits; Santiago v. Commissioner of Correction, 39 Conn. App. 674, 682-83 (1995); must be carried over to the subsequent, controlling concurrent sentence in accordance with Rivera. What Rivera did not address, however, was the carrying over of good time credits when a petitioner is serving multiple concurrent sentences and wants to have all good time credits earned on all dockets carried over and applied to the subsequent, controlling concurrent sentence.
The facts of Rivera involved three separate sentences. At issue were nineteen days of presentence confinement good time credits earned by the petitioner prior to the first sentence being imposed. The petitioner was released to home release on the first sentence. The home release was revoked subsequent to an arrest for a new offense, which resulted in the petitioner serving the remainder of the first sentence. Before the expiration of the first sentence, the petitioner was sentenced to a second term, to run concurrent with the first sentence. Approximately fifteen months into the second sentence, the petitioner was sentenced for the third time, receiving a sentence ordered to run consecutive to the second sentence. The petitioner's habeas corpus petition sought to have the nineteen days of presentence confinement good time credit, as well as ninety days statutory good time earned on the first sentence prior to the imposition of the second sentence, applied to the third sentence. The Supreme Court affirmed the habeas court's granting of the petition crediting the third sentence with 109 days earned on the first sentence. Rivera v. Commissioner of Correction, supra, 254 Conn. 217-20.
Because the offense dates at issue in Rivera were subsequent to July 1, 1983, the applicable subsection of § 18-7a was (c), which eliminated the up-front posting method. The 109 days at issue in Rivera do not overlap with any other days, that is, they were only granted on one docket and not on two or more dockets. The petitioner in Rivera was seeking to have the 109 days credit, a credit reflecting calendar days unique to the first sentence, carried forward and applied to the third sentence imposed during a continuous term of confinement. The petitioner in Rivera was not seeking to have identical credits carried forward and applied to his subsequent, controlling concurrent sentence during a continuous term of confinement.
The method utilized by the Supreme Court in Delevieleuse v. Manson, 184 Conn. 434 (1981), is instructive. In Delevieleuse, the petitioner, who had spent fifty-six days in presentence confinement on a single docket comprised of seven counts, was sentenced on August 17, 1979. The petitioner received a sentence of six months on each of the seven counts, with counts one through five running consecutive to each other, and counts six and seven running concurrent with each other and with the other five counts. The total effective sentence was thirty months. Id., at 435.
The issue before the Supreme Court was how to properly credit the petitioner with presentence confinement credit. The court held that "General Statutes § 18-97 required that the [petitioner] receive a jail time credit of fifty-six days on each of his seven sentences. The credit on his two concurrent sentences applied concurrently." (Emphasis added.) Id., at 441. The jail credit on the consecutive sentences, conversely, was to be applied consecutively. Id. The total presentence confinement credit to be applied was 280 days. Id. The petitioner in Delevieleuse clearly earned the credit on each of the seven separate counts. How the earned credit should be properly applied in the context of multiple concurrent and consecutive sentences, however, is a distinct issue.
5 x 56 = 280.
This court finds that the approach expressed in Delevieleuse regarding the application of credits when there are multiple concurrent and consecutive sentences is not in conflict with Rivera's requirement that earned credits unique to a sentence and not simultaneously earned on another concurrent sentence must be carried over to a subsequent, controlling concurrent sentence. Stated differently, good time earned on a sentence can be carried forward and applied to a subsequent, controlling concurrent sentence, so long as the credit being carried forward was not also earned on the subsequent, controlling concurrent sentence. This approach will result both in the proper calculation and application of credit in the context of a continuous term of confinement comprised of multiple concurrent and consecutive sentences, while avoiding any double or multiple crediting for the same time.
As to any 7-day job or outstandingly meritorious performance award ("OMPA") credits the petitioner was awarded on dockets 1 and 2, credits not directly at issue in Rivera, this court finds that such credits should be carried forward to docket 3. "In contradistinction to jail time, good 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." Rivera v. Commissioner, supra, 254 Conn. 247.
In Wright v. Commissioner of Correction, 216 Conn. 220, 221 (1990), "[t]he sole issue . . . [before the Supreme Court was] whether seven day job credit . . . provided by General Statutes 18-98a and outstandingly meritorious performance credit . . . provided by General Statutes 18-98b earned during a subsequently vacated sentence must be credited against a new sentence imposed for the same offense. [The court] conclude[d] that affording such credit is constitutionally mandated by the double jeopardy clause of the United States constitution." The Wright court noted that "[t]he job and OMP credits received by the petitioner . . . are analogous to good behavior credit and are therefore subject to the constitutional requirements set forth in North Carolina v. Pearce." Id., at 226. This court finds, based on Wright, that there is no reason to distinguish between the various types of good conduct credit when determining what credits can be carried forward to another docket in accordance with Rivera. Thus, 7-day and OMPA credits can be carried forward under Rivera in the same manner as are statutory good time credits.
Finally, it is critical to keep in mind "that the determination of which sentence is controlling is not a static concept." Tyson v. Commissioner of Correction, supra, 261 Conn. 828. "The ongoing determination of whether a particular sentence is the controlling sentence when good time credit may apply to one or more but not all of a prisoner's concurrent sentences is not a novel concept or a practice that is carried out exclusively in this context. For example, if a prisoner is serving two concurrent sentences and the term of the sentence with the longest to run is reduced as a result of a successful application for sentence review[,] . . . it is possible that the other sentence will then become the controlling sentence. The same is true if a prisoner is serving multiple, concurrent sentences and a conviction for which the prisoner received the longest term of imprisonment is reversed on appeal." Id., at 828 n. 22.
The fact that the calculation of a discharge date in the context of multiple sentences comprising one continuous term of confinement is not a static concept is also embodied in "Section 18-7[, which] states in pertinent part: 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." (Emphasis added.) Howard v. Commissioner of Correction, 230 Conn. 17, 21-22 (1994). As the relevant case law indicates, however, the application or posting of credits is a process distinct from the estimating or calculating of credits.
" Estimating good time credit is no more or less a part of the posting system employed by the commissioner under § 187a (a) and (b) than it is for purposes of determining such credit under § 18-7a (c). Rather, the use of the term `estimating' in § 18-7 merely reflects the reality that an inmate may forfeit some of the good time credit that he or she otherwise would be expected to accrue under the applicable subsection of § 18-7a. Of course, the forfeiture of good time credit can occur regardless of which subsection of § 18-7a happens to apply in any given case." (Emphasis in original.) Rivera v. Commissioner of Correction, supra, 254 Conn. 240.
Based upon the foregoing application of the law to the facts, this court concludes that the petitioner is entitled to have the following credits applied to the forty-year sentence in docket 3:
1. presentence confinement credit from February 10, 1983 until January 20, 1984;
2. any presentence confinement good conduct credit earned by the petitioner in accordance with General Statutes § 18-98d (b), and not forfeited, from February 10, 1983 until January 20, 1984;
3. post-conviction credit earned on Count Five from February 27, 1985 until February 27, 1987, as well as any applicable good conduct credit which was earned during that time period, and not forfeited, to be applied only to Count Five as imposed on July 10, 1987;
4. utilizing the up-front posting method, any good conduct credits not forfeited by the petitioner for the forty-year sentence imposed on July 10, 1987;
5. any good time (regular good time, 7 day job credit, OMPA) earned by the petitioner on dockets 1 and 2 between January 20, 1984 through July 10, 1987, without applying credit twice for a single day of each type of credit, to be carried forward in accordance with Rivera.
Because the February 27, 1985 sentence imposed for Count Five was ordered to run concurrent with dockets 1 and 2, when viewed together with the fact that the post-conviction credit earned on the vacated Count Five must be applied to Count Five imposed on July 10, 1987, any good time earned on the vacated Count Five is not unique because it is concurrently earned good time on dockets 1 and 2.
This court is aware that the respondent utilizes the up-front posting method in each of the three dockets at issue. This was done for purposes of administrative efficiency. The actual rate at which the petitioner earns good time is, however, fixed by statute. Thus, a pro-rata calculation can be made for these time periods reflecting portions of the docket 1 and 2 sentences.
Judgment is entered in accordance with this memorandum of decision. The respondent is ordered to calculate the date of the petitioner's discharge from docket number 29,896 as indicated above.
S.T. FUGER, JR., JUDGE