McLaughlin v. Bronson

• Citation: 206 Conn. 267,537 A.2d 1004
• Decision Date: 16 February 1988
• Docket Number: No. 13110,13110
• Court: Supreme Court of Connecticut
• Parties: Michael M. McLAUGHLIN v. George BRONSON, Warden.

Page 1004

537 A.2d 1004

206 Conn. 267

Michael M. McLAUGHLIN v. George BRONSON, Warden.

No. 13110.

Supreme Court of Connecticut.

Argued Nov. 6, 1987.

Decided Feb. 16, 1988.

Benjamin Smith, Bridgeport, for appellant (petitioner).

Carl J. Schuman, Asst. Atty. Gen., with whom were L.D. McCallum, Asst. Atty. Gen., Wallingford, and, on the brief, Joseph I. Lieberman, Atty. Gen., New Haven, for appellee (respondent).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, COVELLO and HULL, JJ.

HULL, Associate Justice.

The petitioner, Michael M. McLaughlin, appeals from a decision denying his motion for summary judgment and granting the state's motion for summary judgment in his habeas corpus proceedings. We find no error.

The following facts are undisputed. The petitioner was convicted of murder in 1976 and sentenced to a term of imprisonment of twenty years to life. In 1982, he was sentenced to a consecutive term of nine months for attempted escape. During his incarceration, he married Eileen McLaughlin. In 1985, the petitioner applied to the board of pardons (board) for a commutation of the minimum term of his sentence to time served. On April 1, 1985, the board conducted a hearing at which Mrs. McLaughlin testified, representing that she was a graduate of Princeton and Yale Universities and a third year medical student at Yale. The board, pursuant to General Statutes § 18-26, ¹ granted the commutation making the petitioner immediately eligible for parole. The board of parole (parole board) granted the petitioner parole to his sentence for attempted escape, effective July 15, 1985.

Following these events, the New Haven Register reported that Mrs. McLaughlin had misrepresented her educational achievements. The state thereupon filed with the board an application to revoke the pardon. On June 17, 1985, the parole board suspended the petitioner's parole pending review by the board of pardons.

The board of pardons conducted a hearing on October 7, 1985, at which the petitioner and his wife were present and testified. Mrs. McLughlin acknowledged that her educational claims were a complete fabrication but asserted that, because of psychiatric problems, she believed them to be true at the time she made them. The evidence was inconclusive with respect to the petitioner's knowledge of his wife's misrepresentations. The board revoked the commutation on December 16, 1985. In its memorandum of decision, the board expressed its concern that the environment into which the petitioner would be released was "diametrically opposed" to that which had been anticipated at the April hearing. The board specifically found that the "[p]etitioner is confronted with a wife who has either lied to him for several years or, alternatively, who has severe emotional and psychological problems. This fact, coupled with the inherent difficulty in re-adjusting to civilian life, would place Petitioner in an unusually stressful situation." The board concluded that the factual basis upon which it relied in granting the commutation was substantially different from that presented at the April hearing. Revocation of commutation was made without prejudice to the petitioner's reapplying to the board in April, 1986. On January 7, 1986, the parole board withdrew the petitioner's parole on the ground that his eligibility for parole had been negated by the revocation of his commutation. The petitioner did not reapply for a commutation.

The petitioner sought a writ of habeas corpus on the ground that the board was without jurisdiction to revoke the commutation. The petitioner moved for summary judgment and the state also filed a motion for summary judgment. The trial court granted the state's motion and denied the petitioner's motion, holding that the board had the power to revoke commutations. The petitioner appealed to the Appellate Court and, pursuant to Practice Book § 4023, we transferred the case to this court.

The petitioner advances the following claims of error: (1) the board of pardons was without jurisdiction to revoke the commutation; (2) General Statutes § 18-26 is vague and overbroad; (3) the board of pardons failed to comply with the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189; (4) the parole board violated his right to procedural due process when it revoked his parole without a hearing; and (5) the trial court erred in denying his motion for default. The respondent argues that the second, third and fourth claims of error are not properly before this court because the petitioner failed to raise them in the trial court and does not seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The respondent also contends that the fifth claim of error is not properly before this court because the record contains no ruling by the trial court on that claim and the petitioner did not move for articulation or otherwise act to complete the record. The petitioner disputes each of these arguments. We agree with the respondent that only the first claim of error is reviewable.

I

Whether a board of pardons may revoke an absolute commutation of sentence ² prior to actual release of the prisoner is a question of first impression in Connecticut. General Statutes § 18-26(a) confers upon the board jurisdiction and authority to grant conditional or absolute commutations. As the petitioner correctly notes, the statute makes no express provision for revocation. We disagree with him, however, that the lack of such an express provision deprives the board of authority to revoke a commutation. Rather, we hold that the board may revoke an absolute commutation, prior to actual release of the prisoner, if the factual basis upon which the commutation was granted proves to be erroneous, and the justification for granting the commutation is thereby abrogated.

Commutation of sentence is the substitution of a lesser punishment for that to which a person has been sentenced. Schick v. Reed, 419 U.S. 256, 273, 95 S.Ct. 379, 42 L.Ed.2d 430, reh. denied, 420 U.S. 939, 95 S.Ct. 1150, 43 L.Ed.2d 416 (1975) (Marshall, J., dissenting); Biddle v. Perovich, 274 U.S. 480, 483, 47 S.Ct. 664, 71 L.Ed. 1161 (1927); 59 Am.Jur.2d, Pardon and Parole § 5 (1987). Power to commute a sentence is part of the pardoning power, under which it may be exercised. 59 Am.Jur.2d, Pardon and Parole § 23 (1987). Ordinarily, the pardoning power resides in the executive. Dumschat v. Board of Pardons, 432 F.Supp. 1310, 1312 (D.Conn.1977) (Dumschat I ), aff'd, 593 F.2d 165 (2d Cir.1979), remanded, 618 F.2d 216 (2d Cir.1980), rev'd, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). In Connecticut, the pardoning power is vested in the legislature; Palka v. Walker, 124 Conn. 121, 198 A. 265 (1938); which has delegated its exercise to the board of pardons. Board of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) (Dumschat II ). Granting of a commutation is an act of clemency. State v. Walters, 145 Conn. 60, 72-73, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45 (1958). Section 18-26 creates no right or entitlement that may be claimed by any prison inmate. Dumschat II, supra, 452 U.S. at 467, 101 S.Ct. at 2465. Furthermore, the statute vests in the board unfettered discretion in making its pardon and commutation decisions; it imposes no definitions, no criteria and no mandates giving rise to a duty to commute a sentence or grant a pardon, or creating a constitutional entitlement to an exercise of clemency. Id., 466, 101 S.Ct. at 2465. There exists no right to judicial review of denial of commutation. State v. Walters, supra 145 Conn. at 73, 138 A.2d 786.

The power to revoke a commutation is neither expressly granted nor expressly proscribed by § 18-26. No Connecticut case has before addressed the legality of revocation of an absolute pardon or commutation. In other jurisdictions, it is generally agreed that a pardon or commutation procured by fraud may be revoked. 67A C.J.S., Pardon and Parole § 35; 2 F. Wharton, Criminal Procedure (10th Ed.1918) § 1469. This is consistent with the general rule that judgments and written instruments obtained by fraud are void. Rathbun v. Baumel, 196 Iowa 1233, 1239, 191 N.W. 297 (1922); Adkins v. Commonwealth, 232 Ky. 312, 319-20, 23 S.W.2d 277 (1929). Some courts have upheld revocation in the absence of fraud, but where a mistake had been discovered. See, e.g., People ex rel. Presser v. Lawes, 221 App.Div. 692, 225 N.Y.S. 53 (1927) (governor not informed of prisoner's escape); Ex parte Ray, 18 Okla.Crim.App. 167, 193 P. 635 (1920) (governor misinformed about prisoner's release date).

Some jurisdictions have held that a duly executed and delivered pardon may be revoked by resort to a court of equity; such proceedings serve to protect the valid judgments of the courts and do not interfere with the prerogative of the pardoning authority. Rathbun v. Baumel, supra; Adkins v. Commonwealth, supra. Other courts have stated that the pardoning authority possesses the power to revoke a commutation. People ex rel. Presser v. Lawes, supra 221 App.Div. at 693, 225 N.Y.S. 53 ("Having the power to grant commutation, and to select those to whom it is to be extended, [the governor] may revoke a commutation, once granted, at any time prior to the actual discharge of the prisoner"); Canizio v. State, 8 Misc.2d 943, 947, 169 N.Y.S.2d 185 (1957), citing People ex rel. Presser v. Lawes, supra ("It was long ago held that the Governor may revoke a commutation, once granted, at any time prior to the actual discharge of the prisoner"); Rowell v. Dutton, 688 S.W.2d 474, 476-77 (Tenn.Crim.App.1985) (governor has broad power to grant commutations and has power to revoke commutations, but this power expires at expiration of the sentence). These cases and the others cited by the parties are of little value to this court either because they are distinguishable from the case before us or because they fail to...