Boyd v. Commissioner of Correction, 84 Conn. App. 22 (CT 7/20/2004)

• Decision Date: 20 July 2004
• Docket Number: (AC 23938).
• Parties: TERRENCE BOYD <I>v.</I> COMMISSIONER OF CORRECTION.
• Court: Connecticut Supreme Court

Page 22

84 Conn. App. 22

TERRENCE BOYD

v. COMMISSIONER OF CORRECTION.

(AC 23938).

Appellate Court of Connecticut.

Argued March 29, 2004.

Officially released July 20, 2004.

Syllabus

On the granting of certification, the petitioner appealed to this court from the judgment of the habeas court denying his petition for a writ of habeas corpus. Initially, the petitioner had been sentenced to concurrent terms of imprisonment in connection with his conviction of, inter alia felony murder and burglary in the first degree. Subsequently, the petitioner's felony murder conviction was reversed by the Supreme Court and the case remanded for further proceedings to the trial court, which found probable cause to retry the petitioner on the felony murder charge. Thereafter, the Supreme Court, on an interlocutory appeal by the petitioner, affirmed the trial court's denial of his motion to dismiss the information. After an unsuccessful federal court double jeopardy challenge to his reprosecution for felony murder, the petitioner pleaded guilty to the felony murder charge and was sentenced to twenty-five years incarceration. In his habeas petition, he claimed that he was entitled to receive time served credit toward his twenty-five year sentence for the time period between the date his original felony murder conviction was reversed and the date his double jeopardy challenge was finally determined in federal court. Held that the habeas court properly denied the petition; the petitioner, who was no longer incarcerated on the felony murder conviction and was serving time for his conviction on the burglary charge alone during the subject time period, could not receive credit for that time in light of the statute (§ 18-89d) that eliminates credit for time spent in custody while serving a sentence on another charge after a successful appeal and while awaiting retrial, and to allow the petitioner a credit for time spent on his collateral double jeopardy attack in federal court after the underlying conviction was clearly vacated and he was no longer incarcerated for it would be contrary to case law that permits a credit for time served only until the date the successful appeal reversing the conviction becomes final.

Procedural History

Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court granted the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

Ernest F. Teitell, with whom was Karen A. Anderson, for the appellant (petitioner).

Richard T. Biggar, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general, for the appellee (respondent).

Foti, DiPentima and Dupont, Js.

Opinion

FOTI, J.

The petitioner, Terrence Boyd, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the respondent commissioner of correction correctly calculated the petitioner's sentence. We affirm the judgment of the habeas court.

The facts relevant to this appeal are as follows. Following a jury trial, the petitioner was convicted of one count of felony murder in violation of General Statutes § 53a-54c, one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and one count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (1). On January 21, 1988, the petitioner was sentenced to forty-five years incarceration on the felony murder conviction, fifteen years on the burglary conviction and five years on the larceny conviction, all sentences to run concurrently, for a total effective sentence of forty-five years.

On March 6, 1990, our Supreme Court reversed the petitioner's felony murder conviction because of defects in his probable cause hearing and remanded the case for further proceedings. See State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990), on appeal after remand, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992). The conviction of burglary and larceny, however, was not overturned, and the petitioner continued serving the sentences for those crimes.

On remand of the felony murder conviction, the trial court found probable cause to try the petitioner for felony murder. The petitioner then filed a motion to dismiss the information, claiming that the double jeopardy clause barred the state's efforts to reprosecute him for felony murder. The court denied his motion. The petitioner then filed an interlocutory appeal to this court, seeking to dismiss the case on double jeopardy grounds. The appeal was then transferred to our Supreme Court. On April 21, 1992, our Supreme Court affirmed the trial court's denial of the petitioner's motion to dismiss the information. See State v. Boyd, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992).

On March 23, 1993, the petitioner filed a petition for a writ of habeas corpus with the United States District Court for the District of Connecticut, again arguing that his reprosecution for felony murder would violate the double jeopardy clause. The District Court denied the petition, and the United States Court of Appeals for the Second Circuit affirmed. See Boyd v. Meachum, 77 F.3d 60 (2d Cir. 1996). The United States Supreme Court denied certiorari on October 7, 1996. See Boyd v. Armstrong, 519 U.S. 838, 117 S. Ct. 114, 136 L. Ed. 2d 66 (1996).

On January 3, 1997, the petitioner was discharged from the fifteen year sentence for burglary, but the new felony murder charge was still pending. On September 15, 1998, the petitioner pleaded guilty to the new felony murder charge and was sentenced to twenty-five years incarceration. On April 5, 2000, the petitioner filed the present petition for a writ of habeas corpus, claiming that he was entitled to receive time served credit toward his twenty-five year sentence. On November 15, 2002, the habeas court denied the petitioner's petition for a writ of habeas corpus, noting that Steve v. Commissioner of Correction, 39 Conn. App. 455, 469, 665 A.2d 168, cert. denied, 235 Conn. 929, 667 A.2d 555 (1995), applied and that the "applicable statute is [General Statutes] § 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." This appeal followed.

There are no factual issues in dispute; at issue is whether the petitioner is entitled to credit for the time between March 6, 1990, the date his felony murder conviction was reversed, and October 7, 1996, the date his double jeopardy challenge was finally determined in the federal court system. Accordingly, "[t]he conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review . . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record." (Internal quotation marks omitted.) King v. Commissioner of Correction, 80 Conn. App. 580, 584, 836 A.2d 466 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1191 (2004).

Resolution of the petitioner's claim calls for this court to interpret § 18-98d and to review our decision in Steve v. Commissioner of Correction, supra, 39 Conn. App. 455. Specifically, we must determine whether § 18-98d,¹ "which eliminates credit for time spent in custody while serving a sentence on another charge after the successful appeal and while awaiting retrial;" id., 469; applies to the situation presented here and prohibits the petitioner from receiving credit for the time between March 6, 1990, and October 7, 1996.

In Steve, the petitioner was arrested on June 13, 1985, in two² criminal cases, but was unable to post bond.³ On October 22, 1985, Steve was convicted of robbery in the first degree and assault in the first degree under docket number CR4-118626, and was sentenced to a term of twenty years incarceration. Id. On December 30, 1985, Steve pleaded guilty to a separate charge of assault in the first degree under docket number CR4-118628 and was sentenced to a term of ten years, to be served concurrently with the sentence imposed in CR4-118626. Id., 457-58. This court then set aside the conviction of robbery in the first degree and assault in the first degree under docket number CR4-118626 and remanded the case for a new trial. Id., 458. Our Supreme Court affirmed on June 21, 1988. State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988). On July 21, 1988, while the case was on remand, the petitioner entered pleas of nolo contendere to the robbery and assault charges and was sentenced to twenty years incarceration. Steve v. Commissioner of Correction, supra, 39 Conn. App. 458.

On appeal, this court concluded that the time served on the vacated sentence between December 30, 1985, the date the petitioner pleaded guilty and was sentenced under docket number CR4-118628, and July 1, 1988,⁴ the date the petitioner successfully appealed from his conviction under docket number CR4-118626, must be treated and credited as postconviction confinement and not as presentence confinement. Id., 463. The Steve court noted that the "constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense." (Internal quotation marks omitted.) Id.

The petitioner in Steve next argued that even though he was serving time under docket number CR4-118628, he should still receive credit toward his sentence under docket number CR4-118626 for the period...