Johnson v. Commissioner of Correction

• Citation: 786 A.2d 1091,258 Conn. 804
• Decision Date: 01 January 2002
• Docket Number: (SC 16440)
• Court: Supreme Court of Connecticut
• Parties: DWAYNE JOHNSON v. COMMISSIONER OF CORRECTION

258 Conn. 804

786 A.2d 1091

DWAYNE JOHNSON v. COMMISSIONER OF CORRECTION

(SC 16440)

Supreme Court of Connecticut.

Argued April 24, 2001.

Officially released January 1, 2002.

Sullivan, C. J., and Borden, Katz, Palmer and Zarella, JS. Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellants (respondents).

Scott B. Grover, certified legal intern, with whom was Timothy H. Everett, for the appellee (petitioner).

Opinion

PALMER, J.

This appeal requires us to decide whether Public Acts 1995, No. 95-255, § 1 (P.A. 95-255),¹ which amended General Statutes (Rev. to 1995) § 54-125a² by increasing from 50 percent to 85 percent the portion of a sentence that certain violent offenders must serve before becoming eligible for parole, applies retroactively to those offenders who committed their offenses prior to the effective date of P.A. 95-255, § 1, and, if so, whether such retroactive application violates the ex post facto clause of the United States constitution.³ The petitioner, Dwayne Johnson, brought this habeas corpus action against the respondents, the board of parole (board) and the commissioner of correction (commissioner),⁴ claiming that his rights under the ex post facto clause were violated when the board, in applying P.A. 95-255, § 1, retroactively, denied him eligibility for parole until his completion of 85 percent, rather than 50 percent, of his sentence. The habeas court agreed with the petitioner's constitutional claim and rendered judgment ordering that the petitioner shall be eligible for parole consideration upon completion of 50 percent of his sentence.

On appeal, the respondents contend that the habeas court: (1) lacked subject matter jurisdiction over this action because the petitioner's claim gives rise to no cognizable liberty interest, which, according to the respondents, is a prerequisite to jurisdiction; and (2) improperly determined that the retroactive application of P.A. 95-255, § 1, violates the ex post facto clause. We conclude that the habeas court had jurisdiction over this action. We also conclude, however, that P.A. 95-255, § 1, applies prospectively only and, therefore, is not applicable to the petitioner's sentence. Although we disagree with the habeas court's conclusion that P.A. 95-255, § 1, applies retroactively, we nevertheless agree with the habeas court that the petitioner is eligible for parole consideration upon completion of 50 percent of his sentence. We, therefore, affirm the judgment of the habeas court.

The memorandum of decision of the habeas court sets forth the following undisputed facts and procedural history. "On November 10, 1995, the petitioner committed acts for which he was charged with the crimes of assault in the first degree [in violation of General Statutes § 53a-59],⁵ carrying a pistol without a permit [in violation of General Statutes (Rev. to 1995) § 29-35],⁶ and reckless endangerment in the first degree [in violation of General Statutes § 53a-63].⁷

"The petitioner [pleaded] guilty to those [charges] on September 24, 1996. On November 12, 1996, he was sentenced to a total effective sentence of [fifteen] years [imprisonment], suspended after ten years ... and three years probation. The petitioner has been in custody serving his sentence since that date.

"When the petitioner committed the crimes on November 10, 1995, the parole eligibility requirements set forth in [General Statutes (Rev. to 1995)] § 54-125a mandated that inmates serve 50 percent of their sentences before they could become eligible for parole consideration.

"[The] General Assembly amended [General Statutes (Rev. to 1995)] § 54-125a ... [in] 1995 .... The new law⁸ mandates that persons convicted of certain violent crimes serve 85 percent of their sentences before becoming parole eligible.

"[This state's] parole laws are discretionary and do not grant inmates the automatic right to demand or receive a parole hearing at any time.

"[Public Act 95-255, § 1, which implements] ... the so-called `85 percent rule' became effective on July 1, 1996.

"The petitioner was notified by the [board in August, 1998] that he must serve 85 percent of his sentence before he will be considered for parole.

"[At the hearing on the petitioner's petition for a writ of habeas corpus], a supervisor with [the board's] hearing division ... testified that the new standards were applied to the petitioner's case because he was sentenced after July 1, 1996 [for a crime or crimes committed after July 1, 1981]. [According to the supervisor], violent offenders sentenced after July 1, 1996 are considered as falling under the new law, while offenders sentenced before July 1, 1996, are treated under the prior law. [Under the board's interpretation of P.A. 95-255, an] inmate's date of sentencing, and not the date of his or her crime, controls this determination. There are more than 800 inmates in Connecticut's correctional system who, like the petitioner, were sentenced after July 1, 1996, for violent offenses committed before that date." Johnson v. Warden, Superior Court, judicial district of New London, Docket No. 99-0549240 (September 29, 2000) (28 Conn. L. Rptr. 279, 280).

After concluding that the retroactive application of P.A. 95-255, § 1, to the petitioner's sentence violated the petitioner's rights under the ex post facto clause, the habeas court ordered the board to "review the petitioner's eligibility for parole after he completes 50 percent of his sentence, in a manner consistent with the eligibility reviews accorded prior to July 1, 1996, to all other similarly situated inmates." Id. (28 Conn. L. Rptr. 283). The habeas court granted the respondents' petition for certification to appeal, and the respondents appealed to the Appellate Court. We then granted the commissioner's motion to transfer the appeal to this court pursuant to Practice Book § 65-2. Thereafter, this court ordered the parties to file supplemental briefs on the following issue: "In light of Vincenzo v. Warden, [26 Conn. App. 132, 599 A.2d 31 (1991)], did the trial court lack subject matter jurisdiction because the petitioner had no liberty interest in a claim for release on parole?"

On appeal, the respondents assert that: (1) because the petitioner has no right to parole, constitutional or otherwise, his claim does not give rise to a cognizable liberty interest and, consequently, the habeas court lacked subject matter jurisdiction over this action; and (2) the habeas court improperly determined that the retroactive application of P.A. 95-255, § 1, to the petitioner's sentence violated the ex post facto clause. The petitioner maintains that: (1) the habeas court had subject matter jurisdiction over this action; and (2) contrary to the conclusion of the habeas court, P.A. 95-255, § 1, has prospective application only. The petitioner further contends that, even if the habeas court properly concluded that the legislature intended that P.A. 95-255, § 1, would apply retroactively, the habeas court also properly concluded that such retrospective application violates the ex post facto clause. We conclude that the habeas court had jurisdiction over this action and, further, that P.A. 95-255, § 1, applies prospectively only.⁹ Because the petitioner was sentenced for crimes committed before the date on which P.A. 95-255, § 1, had taken effect, it is not applicable to the petitioner's sentence, and, therefore, the petitioner is eligible for parole consideration upon completion of 50 percent of his sentence.

I

The respondents first contend that the habeas court lacked subject matter jurisdiction over this action because the petitioner's claim that he is eligible for parole after serving 50 percent of his sentence does not give rise to a protected liberty interest. We reject the respondents' claim.

We begin our analysis by noting that, "[u]nlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver.... Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.... The court must fully resolve it before proceeding further with the case.... Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings.

"We [next take] note of the basic purpose underlying what is one of the most extraordinary and unique legal remedies in the procedural armory of our law.... Although it is true that the United States Supreme Court has not always followed an unwavering line in its conclusions as to the availability of [t]he [writ of habeas corpus] ... from the time the writ originated in seventeenth century England, its central purpose has been to test the legality of detention. English legislation and common law have been recognized by the United States Supreme Court as authoritative guides in applying the writ in the federal courts. McNally v. Hill, 293 U.S. 131, 136-37, 55 S. Ct. 24, 79 L. Ed. 238 (1934), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968). "In applying federal habeas statutes, the United States Supreme Court has said that [t]he purpose of the proceeding defined by the statute was to inquire into the legality of the detention .... There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law. McNally v. Hill, [supra, 293 U.S. 136-37]; see also Engle v. Isaac, 456 U.S. 107, 136, [102 S. Ct. 1558, 71 L. Ed. 2d 783] (1982) (Stevens, J., concurring in part and dissenting in part) (relief available to a prisoner only if he is held in custody in violation of the constitution or laws or treaties of the United States); Preiser v. Rodriguez, 411 U.S. 475,...