Asherman v. Meachum, 13611

• Decision Date: 28 November 1989
• Docket Number: No. 13611,13611
• Court: Connecticut Supreme Court
• Parties: Steven ASHERMAN v. Larry MEACHUM, Commissioner of Correction.

Page 663

566 A.2d 663

213 Conn. 38

Steven ASHERMAN v. Larry MEACHUM, Commissioner of Correction.

No. 13611.

Supreme Court of Connecticut.

Argued Oct. 5, 1989.

Decided Nov. 28, 1989.

Stephen J. O'Neill, Asst. Atty. Gen., with whom were Peter E. Weiss and Steven R. Strom, Asst. Attys. Gen., and Clarine Nardi Riddle, Atty. Gen., for appellant-appellee (respondent).

William J. Tracy, Jr., Bristol, for appellee-appellant (petitioner).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and HULL, JJ.

PETERS, Chief Justice.

The issue in this case is whether the due process rights of the petitioner, Steven Asherman, a convicted criminal, were violated by his transfer from supervised home release to a state correctional institution. The petitioner filed a petition for habeas corpus against the respondent, Larry Meachum, commissioner of the department of correction, seeking his release from confinement. After a hearing, the trial court granted the petition for a writ of habeas corpus and ordered the respondent either to return the petitioner to supervised home release or to discharge him from custody. The respondent obtained certification for appeal pursuant to General Statutes § 52-470(b), ¹ whereupon the petitioner cross appealed. Pursuant to Practice Book § 4023, we transferred the appeal to this court. We find error and remand for the entry of judgment on behalf of the respondent.

This appeal constitutes the third case concerning this petitioner that has come to this court. In State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985), we affirmed the petitioner's conviction of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 for the homicide of Michael Aranow. In Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987), we affirmed the denial of the petitioner's petition for a new trial that he had based on the grounds of newly discovered evidence and alleged juror misconduct. Although the petitioner has steadfastly maintained his innocence throughout these proceedings, the present posture of this case is that the petitioner has been definitively adjudicated to have committed a serious and brutal crime, and hence is lawfully incarcerated.

As a result of his conviction, the petitioner was sentenced, on April 29, 1980, to a term of imprisonment of not less than seven nor more than fourteen years. He began to serve his sentence on March 19, 1985. Despite a somewhat "shaky" psychiatric evaluation, the respondent, on December 7, 1987, granted the petitioner's application for supervised home release. Pursuant to the terms attached by the respondent to the petitioner's request, the petitioner was first placed in a halfway house, where for three months he was supervised and counseled. Having obtained an approved apartment in West Hartford and employment at CIGNA Insurance Company, he was then permitted to live in the community, subject to the continued direction of his supervising officer, Jack Tokarz. From the end of March, 1988, when he moved into his apartment, the petitioner fully complied with all the rehabilitative programs to which he was assigned.

The petitioner was eligible for parole at the time that his application for supervised home release was under consideration, but the parole board did not hold a hearing on his parole application until July 19, 1988. The parole board denied the petitioner's application for three reasons: the seriousness of the petitioner's offense; the absence of a finding that he could live and remain at liberty without violating the law; and the absence of a finding that his release would be compatible with the welfare of society. The petitioner was informed of the denial of his parole application, and of the reasons therefore. He has not challenged the validity of the denial of his parole. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463-67 101 S.Ct. 2460, 2463-66, 69 L.Ed.2d 158 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979).

The denial of the petitioner's parole triggered a renewed concern about the appropriateness of the petitioner's home release status. The respondent testified that he would not have approved a request for home release if he had anticipated denial of the petitioner's application for parole. In the respondent's considered professional view, that denial could affect the propensity for flight of someone like the petitioner who, despite obvious intellectual gifts, had committed a heinous crime. Recalling his previous uncertainty about the earlier "shaky" psychiatric evaluation of the petitioner, the respondent ordered Tokarz, the petitioner's supervising officer, to instruct the petitioner to report for an updated psychiatric reevaluation to be conducted on August 24 and August 25, 1988.

In response to this instruction, the petitioner's attorney wrote a letter to the respondent that is of crucial significance to these proceedings. ² The letter protested the propriety of what counsel assumed to be a "reevaluation hearing," and noted that a habeas corpus petition challenging the legitimacy of the petitioner's conviction had recently been filed in federal court. It informed the respondent that the petitioner would not "participate in any interrogation which is related to the crime for which he was charged." It asked the respondent not to misconstrue the petitioner's "silence at this hearing" as anything other than compliance with the attorney's instructions. Upon receipt of this letter, the respondent cancelled the planned psychiatric examination. When the petitioner appeared at the time and place designated by the respondent, the petitioner was reincarcerated at the Hartford Community Correctional Center. The respondent took the position that the petitioner, through his agent, had refused to submit to a psychiatric evaluation and notified the petitioner that this refusal violated conditions 1 and 11 of his home release program. ³

The petitioner was preliminarily notified of the reasons for his reincarceration in conjunction with a hearing that was held with reference thereto on September 1, 1988. Although originally denominated a disciplinary hearing, it was subsequently recast as a classification hearing, because the only sanction sought by the respondent was a redetermination of the level of security appropriate for the petitioner's placement within the state's custodial facilities for convicted criminals. ⁴ At this hearing, at which the petitioner appeared personally, accompanied by a prison advocate but not by his private counsel, he reiterated his view that he did not understand the need for a new psychiatric evaluation and had refused to participate therein on the advice of counsel. As a result of this hearing, the petitioner was removed from home release status and reclasssified to a medium or minimum security prison facility.

In a letter dated September 7, 1988, the respondent formally notified the petitioner of the reason why his transfer to supervised home release status was being suspended. The respondent noted that he had the statutory authority to review all inmates on home release status on a continuing basis. He reiterated his position that the denial of the petitioner's parole application warranted the department of correction's order to the petitioner to undergo a new psychiatric evaluation. The stated that he found himself unable to ascertain the petitioner's continued suitability for home release status because of the petitioner's "refusal to fully participate in this psychiatric evaluation." As a result, the respondent had concluded that the petitioner was no longer an appropriate candidate for home release status. The letter closed by informing the petitioner that he would be afforded a classification hearing to determine the particular correctional facility in which he would be confined. ⁵

The petitioner had previously, on the day of his initial reincarceration, filed a state court petition for a writ of habeas corpus alleging that his transfer to Hartford Community Correctional Center and reclassification to higher security violated his rights to due process under the United States and Connecticut constitutions. The trial court ruled in favor of the petitioner on this petition. In its memorandum of decision, the court first rejected the petitioner's broad claim to a constitutionally protected liberty interest in his continued participation in a supervised home release program, with the attendant due process protections that such a constitutionally grounded liberty interest would have implicated. The court accepted, however, his narrower claim that state regulations had created a legitimate expectation of a liberty interest that the respondent had failed to respect. On this latter ground, the court ordered the petitioner either to be returned to supervised home release or to be discharged from custody altogether.

present appeal and cross appeal challenge each of the trial court's rulings of law. The respondent claims error in the court's conclusions that (1) state law has conferred upon the petitioner a liberty interest in his home release status, and (2) the procedures used to transfer the petitioner out of home release status violated the petitioner's rights to due process in a state created liberty interest. The petitioner, in his cross appeal, ⁶ maintains that the trial court erred in rejecting his claim that he had a constitutionally created liberty interest in retaining his home release status. We find error on the respondent's appeal, and no error on the cross appeal.

I

"[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Mathews v. Eldridge, 424 U.S. 319, 324-25, 96 S.Ct. 893, 897-98, 47 L.Ed.2d 18...