Mancinone v. Warden, Conn. State Prison

• Decision Date: 08 February 1972
• Citation: 294 A.2d 564,162 Conn. 430
• Court: Connecticut Supreme Court
• Parties: Henry MANCINONE, Jr. v. WARDEN, CONNECTICUT STATE PRISON. Michael DiLORETO v. WARDEN, CONNECTICUT STATE PRISON.

Page 564

294 A.2d 564

162 Conn. 430

Henry MANCINONE, Jr. v. WARDEN, CONNECTICUT STATE PRISON.

Michael DiLORETO v. WARDEN, CONNECTICUT STATE PRISON.

Supreme Court of Connecticut.

Feb. 8, 1972.

Igor I. Sikorsky, Jr., Sp. Public Defender, for appellant (plaintiff) in the first case.

Stephen J. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (defendant) in the first case and for appellant (defendant) in the second case.

Arnold H. Klau, Sp. Public Defender, for appellee (plaintiff) in the second case.

Before HOUSE, C. J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ.

HOUSE, Chief Justice.

Although these are not companion cases in the sense that we usually employ that term, they do involve the same basic issue and question of interpretation of statutes concerning the imposition of sentences to the state prison. In substantially similar circumstances the trial courts reached conflicting conclusions, and the records of other cases already decided in the trial courts have indicated a continuing diversity of interpretation of the controlling statutes. Counsel have represented that others are 'waiting in the wings,' that '(p)resently utter confusion reigns and different inmates receive differing results' and '(t)he Department of Correction would also appreciate a rule which would clarify and simplify jail time credit.'

The appeal of Henry Mancinone, Jr., concerns the interpretation of what was originally 1967 Public Act No. 869, which became § 18-98 of the General Statutes and was in effect for the period from July 1, 1968, to October 1, 1969. ¹ The 1969 session of the General Assembly amended the statute by § 2 of Public Act No. 735 and as amended, effective October 1, 1969, the statute now appears in the 1969 Supplement to the General Statutes as § 18-98. ² As will be noted, the amendment substituted 'a community correctional center' for 'jail,' added 'if such person has conformed to the rules of the institution,' following '(t)he commissioner of correction shall' and substituted 'supervising officer of the correctional center' for 'deputy jailer of the jail' following 'days to which the . . ..'

The DiLoreto appeal concerns the interpretation of General Statutes § 18-98 as it read prior to October 1, 1969, ¹ and § 18-97 as it read at the same time. ³ Also involved in both cases are three statutes in effect at the time concerning parolees: §§ 54-126, ⁴ 54-127 ⁵ and 54-128. ⁶

The facts in these two cases are not in dispute. Mancinone, on October 3, 1967, was sentenced to the state prison for a term of not less than one year nor more than three years. On July 8, 1968, he was released on parole. On December 27, 1968, he was arrested on a charge of breaking and entering with violence and confined in the correctional center in Litchfield. On December 30, 1968, pursuant to the provisions of General Statutes § 54-127, ⁵ a parole violation warrant was issued and lodged at the correctional center in Litchfield ordering his arrest and return to prison under his sentence of October 3, 1967. He was held there on the breaking and entering charge, bail being set at $15,000, which he was unable to obtain. After December 30, 1968, when the parole violation warrant was lodged, he could not have been released from custody even if he had posted the bail required on the breaking and entering charge but would have been retained in custody as a parole violator. On April 24, 1969, on the breaking and entering charge, he received a sentence of not less than two nor more than four years in the state prison to run concurrently with the first sentence on which he had been paroled. The court concluded that from December 30, 1968, when the parole violation warrant was issued and lodged, Mancinone was in lawful custody under the sentence of October 3, 1967, that he was entitled to and received credit on that sentence for the 118 days he was in custody, and that the provisions of § 18-98 do not apply to a parole violator who is confined and against whom a parole violation warrant has been lodged because even if such a parole violator were able to raise bail he would not be released from custody. The court, accordingly, overruled Mancinone's claim of law that he was entitled to credit of 118 days on his sentence of April 24, 1969, notwithstanding the fact that he did receive credit for those days on his previous sentence of October 3, 1967. Whether this was a correct ruling is the sole issue presented for our decision on Mancinone's appeal.

In its memorandum of decision, the court observed: 'The court finds that the plaintiff was given credit for the time he spent in Litchfield and, therefore, lost no credit time by reason of his incarceration. To decide that he was entitled to additional credit on his subsequent conviction would be rewarding him beyond what he is entitled and the court is unable to reasonably construe the provisions of § 18-98 to accomplish that result, and finds it difficult to believe that the legislature intended to do so.'

The facts in the DiLoreto case are somewhat similar. On March 25, 1964, he was sentenced by the Superior Court to jail and also to a term in the state prison for not more than three years as a maximum and not less than one year as a minimum. Execution of the state prison sentence was suspended and he was placed on probation for three years, to commence on his release from jail. On September 29, 1967, the suspension of execution of the sentence was revoked and he was committed to the state prison to serve the prison sentence. At the same time, on another charge, he was also sentenced to the state prison for a term of not more than two years and not less than one year to run concurrently with the 1964 sentence. On September 27, 1968, he was paroled on both sentences. On February 7, 1969, while on parole, he was arrested and charged with robbery with violence, theft of a motor vehicle and larceny. He was confined at the correctional center in Bridgeport and on March 7, 1969, a parole violation warrant was issued and lodged at the correctional center ordering his arrest and return to the state prison under his earlier sentences. He was unable to furnish bond from February 7 to May 16, 1969. On May 16, 1969, in the Superior Court for Fairfield County, he was found guilty of the crime of robbery with violence and sentenced to imprisonment for a term of not more than nine years and not less than four years, to be served concurrently with the unexpired portion of the earlier sentences. Commutation time for the ninety-eight days between the arrest on February 7, 1969, and the issuance of the mittimus on May 16, 1969, was duly noted on the mittimus issued May 16, 1969, and DiLoreto was credited with that time on the sentence on which he had been paroled. He was, however, denied any commutation credit on the sentence imposed on May 16, 1969. In the present habeas corpus proceeding which was instituted in December, 1970, the court concluded that the lodging of the parole violation warrant at the jail did not revoke or suspend the parole and, accordingly, under the provisions of General Statutes § 18-98 as it read in May, 1969, as a matter of statutory right, since DiLoreto was unable to obtain bail, he was entitled to commutation time for the days from February 7, 1969, to May 16, 1969, on the sentence imposed on the latter date. In so concluding, the court overruled the respondent's claim of law that the provisions of §§ 18-97 and 18-98 do not apply to a parolee who is arrested while on parole and who is denied or unable to obtain bail, if a parole violation warrant is issued and lodged against him pursuant to the provisions of § 54-127 of the General Statutes.

Although §§ 18-97 and 18-98 both concern situations where one is held in custody pending trial on a criminal charge, there are two basic differences in the circumstances in which either statute will apply. Section 18-97 applies only to cases where the accused has been in custody 'under a mittimus.' Section 18-98 applies whether or not custody is pursuant to the direction of a mittimus. Section 18-98 is applicable only if the accused 'has been denied bail or has been unable to obtain bail.' Section 18-97 has no such requirement. Although an accused might be entitled to the benefit of the provisions of both statutes, this is not necessarily so. An obvious example is a situation where an accused, although able to furnish bail, declines to do so. In such a circumstance he would not qualify for the benefits of § 18-98 since he was not 'unable to obtain bail.' If, however, he was thereupon committed for want of bail he would be entitled to the benefit of § 18-97 since he would then be in custody 'under a mittimus.'

In considering the relevant statutes, we find no ambiguity or reason to seek any legislative intent not plainly indicated in the language used. 'We must construe and apply the statute as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions.' Granniss v. Weber, 107 Conn. 622, 630, 141 A. 877, 879. Under the provisions of § 18-97 any person receiving a sentence 'shall receive credit towards any portion . . . of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such . . . sentence is imposed.' The decisive criterion is that the person must have spent days 'in custody under a mittimus.' Similarly, under the provisions of § 18-98 the decisive criterion is that the person be one 'who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned.' It may well be, as counsel for DiLoreto argues, that in adopting these...