James E. v. Comm'r of Corr., SC 19854

Citation326 Conn. 388,163 A.3d 593
Decision Date25 July 2017
Docket NumberSC 19854
CourtSupreme Court of Connecticut
Parties JAMES E. v. COMMISSIONER OF CORRECTION

James E. Mortimer, with whom, on the brief, was Michael D. Day, Farmington, for the appellant (petitioner).

Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.**

McDONALD, J.

The sole issue in this appeal1 is whether the habeas court properly dismissed the petition for writ of habeas corpus filed by the petitioner, James E., alleging that a 2013 amendment to General Statutes (Rev. to 2013) § 54–125a repealing a provision advancing certain inmates' parole eligibility dates by earned risk reduction credit violated the ex post facto clause of the United States constitution. See Public Acts 2013, No. 13–3, § 59 (P.A. 13–3). The habeas court dismissed the petition for lack of jurisdiction, determining that because the provision at issue had been enacted after the date of the petitioner's offenses and the parole eligibility provision in effect when the petitioner committed the offenses for which he is incarcerated was identical to the challenged 2013 provision, the petitioner suffered no increase in punishment that would constitute a violation of the ex post facto clause. On appeal, the petitioner claims that the proper comparison for purposes of the ex post facto analysis should have been between the provision in effect at the time of his sentencing and the challenged provision thereafter enacted, which would have reflected that he has suffered an increase in punishment. For the reasons set forth in Perez v. Commissioner of Correction , 326 Conn. 357, 374–75, 378–80, ––– A.3d ––––, 2017 WL 3128381 (2017), we disagree. Accordingly, we affirm the judgment of the habeas court.

The facts surrounding the criminal offenses giving rise to the present habeas action are set forth in State v. James E. , 154 Conn.App. 795, 798–800, 112 A.3d 791 (2015), cert. granted, 321 Conn. 921, 138 A.3d 282 (2016), which resulted in the petitioner's conviction of two counts of assault of an elderly person in the first degree in violation of General Statutes § 53a–59a, reckless endangerment in the first degree in violation of General Statutes § 53a–63(a), and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53–21(a)(1).

The following additional procedural and statutory history is relevant to the present appeal. The petitioner committed the offenses for which he is incarcerated in 2010. At that time, the relevant parole eligibility provision of General Statutes (Rev. to 2009) § 54–125a(b)(2) provided in relevant part: "A person convicted of ... (B) an offense ... where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed."

Thereafter, in July, 2011, while the petitioner's criminal case was pending before the trial court, General Statutes § 18–98e2 went into effect, pursuant to which inmates were eligible to earn risk reduction credit toward a reduction of their sentences. The respondent, the Commissioner of Correction, was vested with discretion to award such credit and to revoke any or all credit. The legislature simultaneously amended General Statutes (Rev. to 2011) § 54–125a to take such credit into account to proportionately advance an inmate's parole eligibility date. Public Acts 2011, No. 11–51, § 25 (P.A. 11–51). The provision applicable to the petitioner provided in relevant part: "A person convicted of ... (B) an offense ... where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18–98e ." (Emphasis added.) General Statutes (Rev. to 2011) § 54–125a(b)(2), as amended by P.A. 11–51, § 25.

In March, 2012, the petitioner was sentenced to a total effective sentence of twenty years incarceration, execution suspended after ten years, and three years of probation. State v. James E. , supra, 154 Conn.App. at 800, 112 A.3d 791. In 2013, after the petitioner began serving his sentence, the legislature repealed the language in the relevant parole eligibility provision of § 54–125a(b)(2) that required the parole eligibility date to be calculated on the basis of the definite sentence as reduced by earned risk reduction credit. See P.A. 13–3, § 59. As a result, although such credit continued to be available under § 18–98e to reduce an inmate's sentence, the original sentence controlled for purposes of determining parole eligibility, unaffected by such credit.

Subsequently, the petitioner commenced the present habeas action, claiming that the 2013 amendment to the parole eligibility provision violated the ex post facto clause of the United States constitution because eliminating application of earned risk reduction credit to the parole eligibility date increased the period of time that inmates like him would be incarcerated before they could be released on parole. The respondent moved to dismiss the habeas petition for lack of subject matter jurisdiction.

After a hearing, the habeas court granted the respondent's motion to dismiss on the ground that the petitioner had failed to allege a violation of the ex post facto clause, and, therefore, the court lacked subject matter jurisdiction. Relying on this court's analysis in Johnson v. Commissioner of Correction , 258 Conn. 804, 786 A.2d 1091 (2002), the court determined that the 2013 parole eligibility provision did not increase the punishment imposed on the petitioner because it was identical to the provision that was in place at the time that the petitioner committed the offenses giving rise to his incarceration. This appeal followed.

The petitioner claims that the habeas court improperly limited its analysis to the parole eligibility provision that was in place at the time that the petitioner committed the offenses to determine whether the challenged provision created a genuine risk that the petitioner would be incarcerated longer under the latter. The petitioner, relying on Lynce v. Mathis , 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), asserts that the habeas court also may compare the provision in place at the time of his sentencing to the challenged provision to determine whether the ex post facto clause has been violated.

The ex post facto claim raised by the petitioner in the present case is identical to one of the claims raised in Perez v. Commissioner of Correction , supra, 326 Conn. at 357, 163 A.3d 597, which we also have decided today. The petitioner in the present case and the petitioner in Perez are identically situated. Both committed their offenses prior to the enactment of the 2011 amendment permitting earned risk reduction credit to be applied to the calculation of parole eligibility and were sentenced prior to July 1, 2013, when the legislature repealed that provision. In Perez v. Commissioner of Correction , supra, at 374–75, 378–80, 163 A.3d 597 we concluded that the habeas court lacked subject matter jurisdiction over the ex post facto claim because the challenged 2013 provision was identical to the provision in place when that petitioner committed his offense, and relied on Johnson v. Commissioner of Correction , supra, 258 Conn. at 817, 786 A.2d 1091, as deeming the date of the...

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5 cases
  • Perez v. Comm'r of Corr.
    • United States
    • Connecticut Supreme Court
    • July 25, 2017
  • Whistnant v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • August 4, 2020
    ...for which he was incarcerated before enactment of 2011 amendment to § 54-125a (b) (2)); see, e.g., James E. v. Commissioner of Correction, 326 Conn. 388, 394-95, 163 A.3d 593 (2017) (same); Holliday v. Commissioner of Correction, supra, 184 Conn. App. 233-35 (same); Byrd v. Commissioner of ......
  • Holliday v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • August 14, 2018
  • Johnson v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • October 12, 2021
    ...court lacked jurisdiction" over the petitioner's ex post facto claim. Id., at 362, 163 A.3d 597 ; accord James E. v. Commissioner of Correction , 326 Conn. 388, 390, 163 A.3d 593 (2017) (applying Perez and concluding that habeas court properly dismissed petition alleging ex post facto viola......
  • Request a trial to view additional results

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