Moscone v. Manson

• Decision Date: 28 July 1981
• Citation: 185 Conn. 124,440 A.2d 848
• Court: Connecticut Supreme Court
• Parties: Mark MOSCONE v. John R. MANSON, Commissioner of Correction.

Page 848

440 A.2d 848

185 Conn. 124

Mark MOSCONE v. John R. MANSON, Commissioner of Correction.

Supreme Court of Connecticut.

Argued June 11, 1981.

Decided July 28, 1981.

L. D. McCallum, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellant (defendant).

Ellen B. Lubell, Danbury, habeas corpus attorney, with whom, on the brief, were Basil T. Tsakonas and Jerrold H. Barnett, Public Defenders, for appellee (plaintiff).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PETERS, Associate Justice.

This is a petition for habeas corpus challenging the calculation of the petitioner's statutory good time credits. The state has appealed from the judgment of the trial court ordering that these credits be calculated according to the law in effect at the time of the petitioner's resentencing, General Statutes § 18-7a, rather than the law in effect at the time of his original sentencing, General Statutes § 18-7.

The parties have stipulated to the following facts: The petitioner, Mark Moscone, was sentenced, on July 19, 1974, to a term of imprisonment of not less than nine years nor more than eighteen years for the crime of rape. Upon appeal to this court, the petitioner's conviction was set aside and the case was remanded for a new trial. State v. Moscone, 171 Conn. 500, 370 A.2d 1030 (1976). Thereafter, the petitioner pleaded guilty to the same offense, and was, on April 12, 1977, resentenced to a term of imprisonment of not less than seven nor more than fourteen years. The defendant, John R. Manson, the commissioner of correction, has calculated the petitioner's current sentence as if it had commenced on July 19, 1974, the date of the original sentence. The petitioner is entitled to additional statutory good time credits if his sentence is calculated according to the rules provided by General Statutes § 18-7a, which went into effect on October 1, 1976, after the date of his original sentence but prior to the date of his resentence.

The governing statutes are, on the one hand, General Statutes §§ 18-7 and 18-7a, and, on the other hand, General Statutes § 53a-38. For present purposes, the two former sections are notable because they prescribe different formulae by which to calculate good time credit depending upon whether a prisoner was sentenced before or after October 1, 1976. ¹ In Frazier v. Manson, 176 Conn. 638, 651-52, 410 A.2d 475 (1979), we held that this difference in treatment had a sufficiently rational basis to withstand constitutional attack. The latter section, § 53a-38, does not, in terms, address good time credits. It provides, in subsection (c): "When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such a person for the same offense or for an offense based upon the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence." Credit for time previously served is constitutionally mandated by the double jeopardy clause of the fifth amendment of the United States constitution which is enforceable in state courts through the fourteenth amendment. North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656 (1969); Benton v. Maryland, 395 U.S. 784, 794-96, 89 S.Ct. 2056, 2062-63, 23 L.Ed.2d 707 (1969).

The issue raised by the present litigation is not § 53a-38's provision of credits for time previously served, a provision which can readily be accommodated to either version of good time credits. Rather, the defendant commissioner argues that the opening words of § 53a-38(c) require that, for all purposes, and not just in relation to time-served credits, a resentence "shall be calculated as if it had commenced at the time the vacated sentence commenced." The trial court refused to accord so expansive a reading to § 53a-38, and we agree with its interpretation.

It is true that, read literally, § 53a-38 appears to adopt an unconditional principle of relation back for all vacated sentences. It is also true that this court will not ordinarily construe a statute whose meaning is plain and unambiguous. Delevieleuse v. Manson, --- Conn. ---, pp. ---, --- A.2d ----, pp. ----, ---- (42 Conn.L.J., No. 51, pp. 1, 3) (1981); Frazier v. Manson, supra, 176 Conn. 638, 642, 410 A.2d 475; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 29, 357 A.2d 498 (1975). This rule of statutory construction does not apply however if, as in this case, a literal reading places a statute in constitutional jeopardy. We are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is both effective and constitutional. Wagner v. Connecticut Personnel Appeal Board, 170 Conn. 668, 674, 368 A.2d 20 (1976); Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 507-508, 356 A.2d 139 (1975); Amsel v. Brooks, 141 Conn. 288, 295, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S.Ct. 125, 99 L.Ed. 693 (1954).

The constitutional problem posed by § 53a-38(c), if read as the defendant commissioner proposes, is best illustrated by an examination of three factually related hypothetical cases. Assume that, on April 12, 1977, three prisoners were sentenced to identical prison terms upon conviction of identical crimes. Prisoner A, if this is his initial conviction for this offense, is unaffected by § 53a-38(c) and is entitled to good time calculated according to § 18-7a. Prisoner B's case differs from that of prisoner A because prisoner B was previously sentenced under a conviction vacated upon appeal, has now been resentenced and has commenced serving his sentence. If prisoner B was admitted to bail, and therefore never taken into custody, during the time that his trial and his appeal were pending, then he too is unaffected by § 53a-38(c) and entitled to good time calculated according to § 18-7a. This result follows from the conjunction of language in two subsections of § 53a-38. Under § 53a-38(c), "the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced " (emphasis added), while under § 53a-38(a), a sentence commences only "when the prisoner is received in the custody or institution to which he was sentenced." Prisoner B, since his vacated sentence never commenced, does not fall within § 53a-38(c). Prisoner B's case is thus statutorily indistinguishable from that of prisoner A. Prisoner C's case resembles that of prisoner B because he too was previously sentenced under a conviction subsequently vacated upon appeal. Prisoner C may, however, be subjected to different treatment, if he was incarcerated while his appeal was pending, because then he indeed did commence to serve the sentence subsequently vacated. According to the defendant commissioner, the fact that prisoner C commenced serving time necessarily invokes § 53a-38(c), and that subsection ineluctably relegates prisoner C to good time credits calculated according to § 18-7 rather than § 18-7a. This result follows regardless of the reason for denial of bail to prisoner C. The prisoner who was financially able to delay incarceration pending appeal is, according to this construction of § 53a-38(c), afforded more generous calculation of good time credits than is the prisoner who, for reasons of indigency, could not make bond.

Just before the turn of the century, Anatole France commented on "the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." The Red Lily, p. 95 (Stephens translation) (1896). Today, although poverty is not in and of itself a "suspect classification" for the purposes of the equal protection clauses of the federal and the state constitutions, ² constitutional principles of basic fairness do impose limitations upon the power of a state legislature to enact statutes that directly discriminate between the rich and the poor. See Tribe, American Constitutional Law, §§ 16-33 to 16-57 (1978). In Frazier v. Manson, supra, we upheld the rationality of a comprehensive revision of the good time credit system, although it discriminated among prisoners depending upon the date of their sentencing. But that discrimination did not single out for unfavorable treatment those who were indigent. Just as the state may not constitutionally deprive a poor person of reasonable access to the courts in criminal or quasi-criminal proceedings; see Little v. Streater, --- U.S. ----, ----, 101 S.Ct. 2202, 2211, 68 L.Ed.2d 627 (1981); Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1955); or make "maximum confinement (after conviction) contingent upon one's ability to pay," Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970), so a state, once it elects to give any prisoners good time credit, cannot constitutionally give less credit to those who lack the financial resources to be at liberty while their appeal is pending. ³

In order to avoid constitutional difficulties, therefore, we construe § 53a-38(c) as did the trial court, as anticipating the constitutional mandate of North Carolina v. Pearce. That case rests, the Supreme Court held, 395 U.S. at 721, 89 S.Ct. at 2078, "upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." The earlier sentence, now vacated, is void except that credit must be given under the new sentence for time served under the earlier one. Id., 718, 89 S.Ct. at 2077. Viewed from the perspective of North Carolina v. Pearce, the operative center of § 53a-38(c) is its final clause that "time served ... shall be credited," and the earlier language is intended only to identify what prior time is eligible for the credit. In other words, to assure a...