Angeles v. Comm'r of Corr.

• Decision Date: 11 August 2015
• Docket Number: No. 37168.,37168.
• Parties: ANTHONY A. v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

159 Conn.App. 226

122 A.3d 730

ANTHONY A.

v.COMMISSIONER OF CORRECTION.

No. 37168.

Appellate Court of Connecticut.

Argued April 20, 2015.

Decided Aug. 11, 2015.

Anthony A., self-represented, the appellant (petitioner).

Edward Wilson, Jr., assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence M. O'Neill, assistant attorney general, for the appellee (respondent).

ALVORD, SHELDON and NORCOTT, Js.

Opinion

ALVORD, J.

Following a grant of certification to appeal by the habeas court, the petitioner, Anthony A., appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly dismissed his petition for lack of subject matter jurisdiction on the ground that he failed to state a claim upon which relief could be granted. The petitioner's habeas claim was that the respondent, the Commissioner of Correction, deprived him of a protected liberty interest under the fourteenth amendment to the United States constitution¹ by “falsely” classifying him as a sex offender without due process of law. We agree that the court did not lack subject matter jurisdiction over the habeas petition and, accordingly, we reverse the judgment of the habeas court and remand the case for further proceedings.

The record reveals the following relevant facts and procedural history. On July 5, 2012, the petitioner was sentenced to an effective term of three years and six months incarceration after pleading guilty to unlawful restraint in the first degree, failure to appear and violation of probation.² The state entered a nolle prosequi as to an additional charge of sexual assault in a spousal relationship.³

Shortly after being sentenced, the petitioner learned that the Department of Correction (department) had classified him as a sex offender and had assigned him a sex offender treatment need score. The department provided the petitioner with an Offender Accountability Plan (plan) that listed “sex treatment referral” as a “specific program recommendation.” The plan expressly provided that “[f]ailure to comply with [the plan's] recommendations, or conduct which results in discipline or increases in risk level, shall negatively impact your earning of Risk Reduction Earned Credit⁴ ... and/or chances of [the department's] supervised community release and/or parole.”

The petitioner refused to sign the plan and requested a hearing to prove he had not sexually assaulted his wife. He claimed that the sex offender designation and treatment recommendation should be removed from his plan.⁵ The department responded: “You had a hearing on 7/7/2012,⁶ and it was found to be verified in the police report that there was non-consensual sexual contact. Therefore, your [sex offender treatment need] score ... is accurate and will not be changed.” The petitioner's repeated efforts to modify his plan to delete the sex offender designation were all unsuccessful.

On February 20, 2013, the petitioner filed a petition for a writ of habeas corpus. In his petition, the self-represented petitioner claimed: (1) he was informed by the assessment counselor that the department had classified him as a sex offender; (2) the classification was made on the basis of an inaccurate police report; (3) he was told that he risked forfeiting “good time, parole [and] early release” if he did not participate in a sex offender treatment program; (4) he was wrongfully classified as a sex offender; (5) his wife, the alleged victim, wrote a letter to the Superior Court stating that she never was sexually assaulted by the petitioner and that the police report was inaccurate; (6) he never has been convicted of a sexual offense; and (7) he was deprived of a liberty interest without due process of law. The respondent's return alleged, inter alia, that the petitioner had not stated a claim for which relief could be granted.

A hearing was scheduled before the habeas court on July 31, 2014. At the beginning of the proceeding, the court stated that it had reviewed the material submitted by the parties and that there was a preliminary issue as to whether the petitioner's claim could be afforded habeas relief. The court asked the respondent if the court could consider the allegations in the petition and the attached affidavits as factual information for an offer of proof as to the petitioner's claim, to which the respondent had no objection. The self-represented petitioner and the respondent then presented their arguments addressed to the issue of whether the claim as stated alleged the violation of a protected liberty interest under the fourteenth amendment⁷ and whether a habeas court could provide relief for such a claim.

At the conclusion of the arguments, the court stated: “I [am] prepared to rule on this matter and in my ruling, I[am] going to assume for purposes of this ruling that the factual allegations by [the petitioner] are correct, in that he has been classified as a sex offender when he was not really a sex offender.”⁸ The court determined that habeas corpus relief was not an available remedy for the petitioner's “misclassification” and that “parole eligibility under [General Statutes] § 54–125 does not constitute a cognizable liberty interest sufficient to invoke habeas corpus jurisdiction.”⁹ Accordingly, the court rendered judgment as follows: “[F]or the reasons that I [have] indicated, I must find that the claim here, even assuming that the factual allegations are true, cannot provide a basis for habeas corpus relief and the petition is dismissed.” This appeal followed.

After the appeal was filed, the petitioner finished serving his sentence of incarceration. On April 1, 2015, he contacted the appellate clerk's office and advised this court that he had been released from prison and that he planned to appear for oral argument. On April 10, 2015, he again contacted the appellate clerk's office and stated that he had been arrested on April 6, 2015, for violation of a protective order and for disorderly conduct. He further stated that he had not posted bond in connection with the new charges and was being detained at New Haven Correctional Center.

Because the petitioner was released from prison prior to oral argument before this court, we must decide whether his claim in this appeal is moot under Patterson v. Commissioner of Correction, 112 Conn.App. 826, 964 A.2d 1234 (2009). “Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction....” (Internal quotation marks omitted.) Id., at 829, 964 A.2d 1234. “[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Id., at 830, 964 A.2d 1234. “This court cannot provide any practical relief after the petitioner has served his sentence in its entirety.... Unless the petitioner's claim falls under an exception to the mootness doctrine, we must dismiss his appeal for lack of subject matter jurisdiction.” (Citations omitted.) Id., at 830–31, 964 A.2d 1234.

Here, as in Patterson, the petitioner cannot satisfy the “limited duration” requirement of the capable of repetition, yet evading review exception to the mootness doctrine. Id., at 836, 964 A.2d 1234. Inmates who are classified as being in need of sexual offender treatment by the department may face a wide range of sentences. The department's classification of the petitioner is not of such a limited duration that the substantial majority of cases raising a question about such a classification will become moot before they can be fully litigated.

We conclude, however, that the collateral consequences exception to the mootness doctrine, as set forth in State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), is applicable under the circumstances of this case. In McElveen, our Supreme Court stated: “[F]or a litigant to invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future. The reviewing court therefore determines, based upon the particular situation, whether the prejudicial collateral consequences are reasonably possible.” Id., at 208, 802 A.2d 74.

With the petitioner's new arrest, we are persuaded that there is a reasonable possibility that, should he return to prison, he will again be classified as being in need of sex offender treatment because the department assigned him a sex offender treatment need score with a recommended sex offender treatment referral during his previous incarceration. Accordingly, the petitioner's appeal is not moot.

We now address the merits of the petitioner's claim that the habeas court improperly determined that it lacked subject matter jurisdiction because he failed to state a claim upon which relief could be granted. “Subject matter jurisdiction for adjudicating habeas petitions is conferred on the Superior Court by General Statutes § 52–466, which gives it the authority to hear those petitions that allege illegal confinement or deprivation of liberty.... We have long held that because [a] determination...