Byrd v. Comm'r of Corr.
| Decision Date | 10 October 2017 |
| Docket Number | AC 38491 |
| Citation | 177 Conn.App. 71,171 A.3d 1103 |
| Court | Connecticut Court of Appeals |
| Parties | Howard BYRD v. COMMISSIONER OF CORRECTION |
Temmy Ann Miller, assigned counsel, for the appellant (petitioner).
Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence O'Neill, assistant attorney general, for the appellee (respondent).
Lavine, Mullins and West, Js.
The petitioner, Howard Byrd, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus (petition).1 He asserts a number of claims on appeal, but his primary claim is that the habeas court improperly concluded that it did not have subject matter jurisdiction over his ex post facto claim alleged in count one of his petition. We conclude that the habeas court properly determined that it lacked subject matter jurisdiction over both counts of his petition2 and, therefore, did not abuse its discretion by denying the petitioner's petition for certification to appeal.3 Accordingly, we dismiss the appeal.4
The facts and procedural history of this case present us with a tangled web of litigation. On September 13, 2010, the petitioner was arrested and was held in pre-sentence confinement by the respondent, the Commissioner of Correction, for a crime that took place on that same day. On January 27, 2012, he pleaded guilty to burglary in the first degree in violation of General Statutes § 53a–101 (a) (1), and the trial court, Kavanewsky, J., sentenced him to eight years imprisonment, five years of which was mandatory, followed by eight years of special parole.
In 2010, the year in which the petitioner committed the criminal act underlying his conviction, there was no statutory provision that permitted inmates to earn "good time credits" to reduce the length of their sentences. In addition, due to the violent nature of the offense for which he was convicted, the petitioner was not eligible for parole consideration before serving 85 percent of his sentence. See General Statutes (Rev. to 2013) § 54–125a (b).
In 2011, after the petitioner committed the criminal act but before he was sentenced, the General Assembly passed Number 11–51 of the 2011 Public Acts (P.A. 11–51), codified at General Statutes § 18–98e. Section 18–98e (a) provides that certain inmates who were convicted of crimes committed after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction ...." At the same time, the General Assembly amended § 54–125a (b), providing that a person convicted of a violent crime would not be eligible for parole consideration "until such person has served not less than [85 percent] of the definite sentence imposed less any risk reduction credit earned under the provisions of [ section 18–98e ]." (Emphasis added.) P.A. 11–51, § 25.
Thus, when the petitioner was sentenced in 2012, he was entitled to earn and be awarded, within the discretion of the respondent, risk reduction credits that would reduce the length of his sentence and also advance the date of his first eligibility for parole consideration. See Petaway v. Commissioner of Correction, 160 Conn.App. 727, 730, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). In fact, the respondent credited the petitioner with risk reduction credits for each month that he was eligible to earn such credits.
In 2013, however, the General Assembly again amended § 54–125a (b) by removing the phrase "less any risk reduction credit earned under the provisions of section 18–98e." See Public Acts 2013, No. 13–3, § 59. The 2013 version, which is in effect today, requires inmates who were convicted of a violent offense to serve 85 percent of their sentences before they become eligible for parole consideration. In the present case, therefore, the petitioner may earn and be awarded risk reduction credits, but such credits can no longer be used to advance the date on which he is eligible to be considered for parole. Notably, the petitioner has not lost any risk reduction credits he has earned, and he may still reduce the total length of his sentence of incarceration.
On August 7, 2014, the petitioner, self-represented, filed the operative petition. In count one, he alleged that even though the 2013 version of § 54–125a (b) prevents "risk reduction earned credit(s) to be applied toward parole eligibility dates, his sentence ... must be [commutated] under [the 2011 version of § 54–125a (b) ], as that was the enforceable law at the time he became sentenced." In count two, he alleged that he suffered from a heart disease and that "[d]ue to [the] ... stress ... [stemming] from the petitioner having to struggle with his disease and litigation ... [t]he petitioner not only seeks the return of all [risk reduction credits] to be properlycalculated toward his parole eligibility date but ... respectfully moves this court to grant relief [and] remedy by the granting of additional credits, and conditional medical parole."
On August 11, 2014, before the respondent responded to the petitioner's petition, the petitioner filed a motion for summary judgment.5 In the motion, he alleged that (1) there was no issue of material fact that his "claim is entirely based on the language of the sovereign law that was in effect at the time [he] became sentenced," (2) there was no issue of material fact that he was "entitled to have all ‘earned risk reduction credits' be applied toward [his] parole eligibility," and (3) "[a]s the new law was passed after [he] was sentenced," applying the 2013 version of § 54–125a (b) to him violated "Article I, section 10 of the United States Constitution ...."
On November 3, 2014, the respondent filed a cross motion for summary judgment. In his motion, he argued that the respondent was entitled to a judgment as a matter of law because "there exists no constitutional right to receive [risk reduction credits] or to have these credits applied to reduce an inmate's parole eligibility date ... [and] there exists no constitutional right to parole." The respondent also filed a memorandum of law in support of his motion for summary judgment, in which he relied heavily on the decision of the habeas court, Kwak, J., in Petaway v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV–13–4005684 (April 7, 2014), aff'd, 160 Conn.App. 727, 125 A.3d 1053 (2015). The respondent attached Judge Kwak's order to his motion.6
On August 17, 2015, the habeas court, Fuger, J., held a hearing to address both parties' motions for summary judgment. Following argument from both parties, the habeas court issued its oral decision. In ruling for the respondent, the habeas court wholly adopted and relied on Judge Kwak's reasoning in Petaway.
On August 24, 2015, the petitioner filed a petition for certification to appeal, which the habeas court denied. On April 27, 2016, the petitioner filed in this court a motion for permission to file a late motion for articulation of the habeas court's ruling. On May 25, 2016, this court denied the petitioner's motion but, sua sponte, ordered that the habeas court "articulate whether it intended to dismiss the petition ... for lack of jurisdiction or whether it intended to render summary judgment in favor of the [respondent], and the factual and legal basis for the court's decision." In addition, this court, sua sponte, ordered the habeas court to "articulate whether it has disposed of the second count of the petitioner's ... petition."
On June 21, 2016, the habeas court filed its articulation. It clarified that when it made its oral ruling on August 17, 2015, it intended to dismiss count one of the petition for lack of subject matter jurisdiction. It also stated that it disposed of count two for lack of subject matter jurisdiction because the petitioner failed to state a claim upon which relief could be granted.
On July 5, 2016, the petitioner filed in this court a motion for review of the habeas court's articulation. On July 19, 2016, this court granted the petitioner's motion for review but denied his relief requested. This appeal followed.
On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification to appeal because it committed a number of procedural errors in rendering its decision and improperly concluded that it lacked subject matter jurisdiction. Before we proceed on the merits of the petitioner's claims on appeal, however, it is the obligation of this court to first determine whether the habeas court abused its discretion by denying the petitioner's certification to appeal because it did not have subject matter jurisdiction over the petitioner's petition.
"[B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Citations omitted; internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, 159 Conn.App. 162, 164–65, 122 A.3d 709 (2015).
We will, therefore, conduct a plenary review of the petitioner's petition to determine whether the habeas court properly concluded that it lacked subject matter jurisdiction to consider the petition.
The petitioner argued in count one of his petition that the application of the 201...
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