Liistro v. Robinson

• Decision Date: 07 March 1972
• Citation: 170 Conn. 116,365 A.2d 109
• Court: Connecticut Supreme Court
• Parties: Mathias LIISTRO v. Carl ROBINSON, Warden, Connecticut Correctional Institution, Somers. Clifton DOWDY v. Richard WEZOWICZ, Warden, Connecticut Correctional Center, Hartford. . Jan, 27, 1976. Stephen J. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellant (defendant in both cases). Richard S. Cramer, Hartford, for appellee (plaintiff in the first case). Robert T. Statchen, Burlington, for appellee (plaintiff in the second case). House C.J., Loiselle, Dogdanski, Longo and Barber, JJ. HOUSE, Chief Justice. Although these two cases are not, strictly speaking, companion cases, they reached our docket simultaneously, were argued at the same session and involve the same controlling question of law. We have, under the circumstances, decided to consider them in a single written opinion. Both are appeals from judgments of the Superior Court granting petitions for writs of habeas corpus and setting bail in each case in the amount of $25,000 pending the appearance of the petitioning parolees at full parole revocation hearings. The sole assignment of error in each case is that the court erred in concluding that the petitioner was entitled to have the court set bail pending his appearance at a parole revocation hearing before the board of parole. The appeals raise the question as to whether the state violates the equal protection clause of the fourteenth amendment to the constitution of the United States by expressly extending the right to bail to alleged probation violators under § 53a-32 1 of the General Statutes while not similarly granting the right under the provisions of §§ 54-126 and 54-127 2 of the General Statutes to alleged parole violators who are awaiting parole revocation hearings. The facts in each case have been stipulated. Liistro, on

Page 109

365 A.2d 109

170 Conn. 116

Mathias LIISTRO v. Carl ROBINSON, Warden, Connecticut Correctional Institution, Somers.

Clifton DOWDY v. Richard WEZOWICZ, Warden, Connecticut Correctional Center, Hartford.

Supreme Court of Connecticut.

Jan, 27, 1976.

Stephen J. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellant (defendant in both cases).

Richard S. Cramer, Hartford, for appellee (plaintiff in the first case).

Robert T. Statchen, Burlington, for appellee (plaintiff in the second case).

House C.J., Loiselle, Dogdanski, Longo and Barber, JJ. HOUSE, Chief Justice.

Although these two cases are not, strictly speaking, companion cases, they reached our docket simultaneously, were argued at the same session and involve the same controlling question of law. We have, under the circumstances, decided to consider them in a single written opinion. Both are appeals from judgments of the Superior Court granting petitions for writs of habeas corpus and setting bail in each case in the amount of $25,000 pending the appearance of the petitioning parolees at full parole revocation hearings. The sole assignment of error in each case is that the court erred in concluding that the petitioner was entitled to have the court set bail pending his appearance at a parole revocation hearing before the board of parole.

The appeals raise the question as to whether the state violates the equal protection clause of the fourteenth amendment to the constitution of the United States by expressly extending the right to bail to alleged probation violators under § 53a-32 ¹ of the General Statutes while not similarly granting the right under the provisions of §§ 54-126 and 54-127 ² of the General Statutes to alleged parole violators who are awaiting parole revocation hearings.

The facts in each case have been stipulated. Liistro, on March 7, 1972, was sentenced to two concurrent sentences, each for not less than two nor more than five years, for the crimes of robbery and aggravated assault. On July 6, 1973, he was paroled. On October 25, 1974, he was served with a 'Notice of Parole Violation' charging a violation of the conditions of his parole, in that he did not 'completely abstain from the use of alcoholic beverages. . . .' Following a preliminary hearing by the parole division of the Connecticut department of corrections on November 5, 1974, pursuant to Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the hearing officer found probable cause to believe that the petitioner had violated conditions of his parole. On November 27, 1974, Liistro was served with a 'Notice of Revocation Hearing' providing, in part, that a hearing was scheduled before the board of the parole for December 10, 1974, to determine whether parole should be revoked. On December 10, 1974, the hearing was commenced but, on request of petitioner's counsel who discovered that he required more time properly to represent the petitioner, the hearing was continued until the next hearing date on January 14, 1975. Meanwhile, on November 19, 1974, in the Circuit Court the petitioner was found guilty of the crime of disorderly conduct and was sentenced to confinement for twenty days. Upon completion of that sentence, he remained incarcerated in the Connecticut correctional institution, Somers, awaiting his continued hearing before the board of parole. He thereupon filed and was granted the habeas corpus petition seeking to be released on bail until the hearing.

Dowdy, on September 25, 1970, was sentenced to not less than five nor more than twelve years for robbery with violence. On April 30, 1974, he was paroled. On August 8, 1974, he was arrested for violation of the statute concerning possession or sale of controlled substances. He was again arrested on October 21, 1974, this time for robbery in the first degree. Shortly thereafter, on October 29, 1974, Dowdy was served with a 'Notice of Parole Violation' charging a violation of the conditions of his parole in that he had a gun in his possession. Following a preliminary hearing on November 14, 1974, pursuant to Morrissey v. Brewer, supra, the hearing officer found probable cause to believe that the petitioner had violate conditions of his parole. Thereupon, on November 19, 1974, a warrant for reimprisonment was issued ordering the petitioner's arrest and return to custody as a parole violator. A hearing was scheculed before the board of parole for March 11, 1975. The petitioner was incarcerated in the community correctional center, Hartford, awaiting his hearing. At the time he was granted the habeas corpus petition on February 13, 1975, allowing him to be released on bail until the hearing, both criminal charges were still pending, with bond in each case set at $2500 which the petitioner was ready, willing and able to meet.

Certification to appeal in both cases was granted pursuant to § 52-470 of the General Statutes. Following their respective hearings, parole for both petitioners was revoked and subsequently both have been reparoled. Despite the fact that neither petitioner has an immediate interest in the outcome, we have decided to consider the defendants' appeals. The single issue involved is one which is 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310; see Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct 705, 35 L.Ed.2d 147. It directly affects the ongoing parole program of the state's penal system, and could very well affect the petitioners who are now reparoled. Hence, practical relief can follow directly from our decision and 'the public importance of the question involved makes it desirable that we decide the point.' Winnick v. Reilly, 100 Conn. 291, 296, 123 A. 440, 442.

The petitioners claim, and the respective Superior Courts (J. Shea, J., and Alexander, J.) held, that since § 53a-32 of the General Statutes permits bail for alleged probation violators, bail must also be permitted for alleged parole violators in order to satisfy the requirements of the equal protection clause of the fourteenth amendment to the constitution of the United States. The court, in Liistro, relied upon the decision in Gagnon v. Scarpelli, 411 U.S. 778, 93, S.Ct. 1756, 36 L.Ed.2d 656, and United States ex rel. Dereczynski v. Longo, 368 F.Supp. 682 (N.D.Ill., E.D.), affirmed without publish opinion, 506 F.2d 1403 (7th Cir.). The court, in Dowdy, cited the above two cases but rested its analysis on the court's rationale in Liistro.

We begin by observing that if a parolee has a right to bail while awaiting a parole revocation hearing, such a right must flow from the eighth or fourteenth amendments to the federal constitution, the state constitution, state statutes, or the common law. See In re Law, 10 Cal.3d 21, 513 P.2d 621; Genung v. Nuckolls, 292 So.2d 587 (Fla.); State v. Lawrence, Vt.,340 A.2d 67. There is no per se federal constitutional right to bail under these circumstances. See Argro v. United States, 505 F.2d 1374 (3d Cir.); Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir.); Hamilton v. New Mexico, 479 F.2d 343 (10th Cir.); Bloss v. Michigan, 421 F.2d 903, 905 (6th Cir.); In re Whitney, 421 F.2d 337 (1st Cir.); United States ex rel. Fink v. Heyd, 287 F.Supp. 716 (E.D.La.), aff'd, 408 F.2d 7 (5th Cir.), cert. denied, 396 U.S. 895, 90 S.Ct. 192, 24 L.Ed.2d 172. The court in Angro v. United States (p. 1377) did 'think there may be adequate ground to support its (bail) grant in unusual cases, at least in a bona fide inquiry into whether a parole revocation is being conducted pursuant to due process. See Baker v. Sard, 137 U.S.App.D.C. 139, 420 f.2d 1342 (1969); Johnston v. March, 227 F.2d 528 (3 Cir. 1955).' ³ However, neither petitioner in the cases before us claims any violation of his due process rights. There is likewise no per se state constitutional right to bail in Connecticut under these circumstances. State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667; State v. Vaughan, 71 Conn. 457, 460-61, 42 A. 640.

As we have observed, §§ 54-126 and 54-127 of the General Statutes contain to express authorization for the release on bail of alleged parole violators. This court has held that the Superior Court possesses the common-law powers formerly exercised by the Court of King's Bench to 'admit to bail in all cases, on consideration of the nature and circumstances of the case'; State v. Vaughan, supra, 461, 42 A. 640 but, as there noted, '(t)his power continues after conviction and after judgment, so long as the prisoner is in the custody of the court, but in most cases ceases when he is taken in execution.' In the present cases, both petitioners were taken in the execution and were parolees subject not to the further jurisdiction of the court which imposed sentence but to the authorities at the Connecticut correctional institution, Somers, to which institution they were sentenced, and to the jurisdiction of the board of parole, 'an autonomous body . . . within the department of correction for fiscal and budgetary purposes only.' General Statutes § 54-124a et seq. Hence the petitioners' claims are predicated and must and do rely solely upon the equal protection of the laws clause of the fourteenth amendment to the constitution of the United States.

'Equal protection analysis must commence with a determination of whether a legislative classification . . . impinges upon a fundamental right. Where the legislation impinges upon a fundamental right . . . it must be struck down unless justified by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 335, 342, 92 S. Ct. 995, 31 L.Ed.2d 274. Where the statute does not involve fundamental rights . . . the legislation will withstand constitutional attack if the distinction is founded on a rational basis. McGinnis v. Royster, 410 U.S....