Perez v. Comm'r of Corr.

• Decision Date: 25 July 2017
• Docket Number: SC 19855
• Court: Connecticut Supreme Court
• Parties: Dominic PEREZ v. COMMISSIONER OF CORRECTION

326 Conn. 357

163 A.3d 597

Dominic PEREZ

v.COMMISSIONER OF CORRECTION

SC 19855

Supreme Court of Connecticut.

Argued April 6, 2017

Officially released July 25, 2017

Temmy Ann Miller, assigned counsel, 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.

This case presents challenges to the constitutionality of substantive and procedural amendments to General Statutes (Rev. to 2013) § 54–125a, which governs parole eligibility for persons who received a definite sentence or aggregate sentence of more than two years, as applied to an offender who was sentenced before the amendments took effect. More specifically, we consider statutory amendments (1) eliminating earned risk reduction credit from the calculation of a violent offender's parole eligibility date, when such credit was not available at the time the offense was committed; Public Acts 2013, No. 13–3, § 59 (P.A. 13–3); and (2) altering parole eligibility hearing procedures to allow the Board of Pardons and Paroles to forgo holding a hearing. Public Acts 2013, No. 13–247, § 376 (P.A. 13–247). The petitioner, Dominic Perez, appeals¹ from the judgment of the habeas court dismissing his petition claiming that application of these 2013 amendments to him violated his state and federal due process and liberty rights, the ex post facto clause of the United States constitution, the separation of powers doctrine, and the equal protection clause of the United States constitution, and is contrary to the language of § 54–125a. The petitioner contends that the habeas court improperly dismissed his claims on the ground that it would be speculative whether the statutory changes would cause any injury to the petitioner because the award of risk reduction credit by the respondent, the Commissioner of Correction, is discretionary. We agree with the petitioner to the extent that the habeas court improperly dismissed many of the claims raised in the petition solely on the basis of the "speculative nature" of earned risk reduction credit. Nevertheless, applying the proper test to each claim raised by the petitioner, we hold that the habeas court lacked jurisdiction over the petitioner's claims. We therefore affirm the judgment of the habeas court dismissing the petition.

I

The following procedural and statutory history is relevant to this appeal. The petitioner committed the offenses giving rise to his incarceration, which involved his use of deadly force, in November, 2010. At that time, the relevant parole eligibility provision of § 54–125a provided in relevant part: "A person convicted of ... an offense, other than [certain parole ineligible offenses] 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." General Statutes (Rev. to 2009) § 54–125a (b) (2), as amended by Public Acts 2010, No. 10–36, § 30. At that time, the relevant parole hearing provision of § 54–125a provided that the board "shall hold a hearing to determine the suitability for parole release of any person whose eligibility for parole release is subject to the provisions of subdivision (2) of subsection (b) of this section upon completion by such person of eighty-five percent of such person's definite or aggregate sentence...." (Emphasis added.) General Statutes (Rev. to 2009) § 54–125a (e).

In July, 2011, while the petitioner's criminal case was pending before the trial court, General Statutes § 18–98e² became effective, pursuant to which the respondent had discretion to award risk reduction credit toward a reduction of an inmate's sentence, up to five days per month, for positive conduct. General Statutes § 18–98e(a) and (b). The respondent also was vested with discretion to revoke such credit, even credit yet to be earned, for good cause. See General Statutes § 18–98e(b). At the same time, the legislature amended the parole eligibility provision to provide: "A person convicted of ... 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 Public Acts 2011, No. 11–51, § 25 (P.A. 11–51). The subsection of § 54–125a addressing parole hearings was similarly amended to account for earned risk reduction credit. General Statutes (Rev. to 2011) § 54–125 (e), as amended by P.A. 11–51, § 25. Accordingly, under the 2011 amendments, earned risk reduction credit was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and the parole eligibility date calculated as a percentage of the sentence would advance in similar measure.

In May, 2013, the petitioner was sentenced to a total effective sentence of fifteen years incarceration after he pleaded guilty to manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a, and carrying a pistol without a permit in violation of General Statutes (Rev. to 2009) § 29–35(a), for the 2010 offense. Under the 2011 amendments to § 54–125a and § 18–98e, any risk reduction credit earned by an inmate, and not subsequently revoked, would have both reduced his sentence and rendered him eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of that reduced sentence.

Effective July 1, 2013, the legislature again amended § 54–125a. Specifically, with regard to offenses like one of those of which the petitioner was convicted, the legislature eliminated the language that permitted the parole eligibility date to be advanced by the application of any earned risk reduction credit. See P.A. 13–3. The legislature also eliminated the requirement that the board "shall" hold a parole hearing after such inmates had completed 85 percent of their definite or aggregate sentences. See P.A. 13–247. Instead, under the revised statute, the board "may" hold such a hearing, but "[i]f a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person...." General Statutes (Supp. 2014) § 54–125a(e). Thus, under the 2013 amendments, any risk reduction credit earned by an inmate, and not subsequently revoked, would still be applied to reduce his sentence, but would not be applied to advance his parole eligibility date. In other words, he would only be eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of his original sentence (in the petitioner's case, after twelve years and nine months). Moreover, the board may decline to hold a hearing once that eligibility date arises.

The petitioner thereafter filed his petition for a writ of habeas corpus challenging the application of the 2013 amendments to the calculation of his parole eligibility date and to his right to a hearing on his suitability for parole. In the operative thirteen count petition, the petitioner alleged that he already had been awarded risk reduction credit by the respondent and that prior to July 1, 2013, the respondent had applied that credit to advance the petitioner's parole eligibility date. The petitioner challenged the application of these amendments to him by the respondent³ as a violation of his constitutional rights under the federal and/or state constitution—specifically, claims related to due process, liberty interests, the ex post facto clause, the separation of powers doctrine and the equal protection clause—and as contrary to the statutory text. Subsequently, the respondent filed a motion to dismiss all counts of the petition.

After a hearing, the habeas court granted the respondent's motion to dismiss the petition. The habeas court's decision did not analyze each claim separately. Rather, it concluded that all of the petitioner's claims failed on the same basis, namely, that "[g]iven the speculative nature of [earned risk reduction credit], and the [respondent's] discretion to both award and take [it] away as an administrative tool to manage the inmate population, [the habeas] court ... lacks subject matter jurisdiction over the ... petition and ... [the petition] fails to state a claim upon which habeas corpus relief can be granted." This appeal followed.

II

The petitioner asserts that the habeas court improperly dismissed all of his claims based on lack of justiciability, a conclusion that he contends the habeas court would not have reached had it properly analyzed each claim separately under the appropriate respective jurisdictional test. The petitioner argues that the habeas court improperly interpreted his claims as dependent on the future award of risk reduction credit to the petitioner, and, therefore, too speculative a basis for habeas relief. He contends that the claims challenging the hearing provision are not dependent on whether earned risk reduction credit is applied to determine his parole eligibility date. He further asserts that the claims challenging the parole eligibility provision are not dependent on any future award of risk reduction credit because he already had been awarded credit, which the respondent used to calculate his new parole eligibility date prior to July 1, 2013.

The respondent asserts that the habeas court properly dismissed all of the petitioner's claims, even though it did not...