Petaway v. Comm'r of Corr.

• Decision Date: 27 October 2015
• Docket Number: No. 36772.,36772.
• Citation: 160 Conn.App. 727,125 A.3d 1053
• Court: Connecticut Court of Appeals
• Parties: William PETAWAY v. COMMISSIONER OF CORRECTION.

160 Conn.App. 727

125 A.3d 1053

William PETAWAY

v.COMMISSIONER OF CORRECTION.

No. 36772.

Appellate Court of Connecticut.

Argued April 14, 2015.

Decided Oct. 27, 2015.

Temmy Ann Pieszak, New Haven, resource attorney for habeas corpus matters, for the appellant (petitioner).

Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).

BEACH, MULLINS and BISHOP, Js.

BISHOP, J.

Practice Book § 23–24 provides in relevant part that when a petition for a writ of habeas corpus is filed, the court, on review of the petition, "shall issue the writ unless it appears that: (1) the court lacks jurisdiction...." In this matter, the habeas court, in the performance of its function pursuant to § 23–24, declined to issue the petitioner, William Petaway, a writ of habeas corpus, reasoning that it lacked jurisdiction over the claims set forth in his petition concerning the change in his eligibility date for parole consideration. On appeal, the petitioner claims that the court incorrectly concluded that it lacked jurisdiction on the basis of his assertion that a 2013 statutory change that operates to delay his earliest date of parole eligibility violates the constitutional protection afforded to him against the ex post facto application of penal statutes. We affirm the judgment of the habeas court.

The following procedural history and factual underlayment are pertinent to our review of the petitioner's claim. On August 19, 2005, the petitioner was sentenced to twelve and one-half years imprisonment on the basis of his conviction for robbery in the first degree, arising from an incident that took place on October 20, 2003. The petitioner's conviction was affirmed by this court. State v. Petaway, 107 Conn.App. 730, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008). The petitioner remains in the custody of the respondent, the Commissioner of Correction.

In 2003, at the time of the petitioner's criminal conduct, and in 2005, when he was convicted, there was no statutory provision that permitted inmates to earn credits toward reducing the length of their sentences.¹ Also, due to the nature of the offense for which he was convicted, the petitioner, at the time of his conviction, was not eligible for parole consideration before serving 85 percent of his sentence. See General Statutes § 54–125a (b).

On July 9, 2013, the petitioner filed a petition for a writ of habeas corpus in which he acknowledged that at the time of his conviction there was no statutory provision that permitted inmates to earn good time credit to reduce their sentences.² He alleged, as well, that in 2011, the General Assembly enacted No. 11–51, § 22, of the 2011 Public Acts, later codified in General Statutes § 18–98e. This legislation provided that certain prisoners convicted for crimes committed after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction" for certain specified positive behaviors. General Statutes § 18–98e (a). This legislation was enacted in conjunction with a revision to § 54–125a (b) regarding parole, which provided in relevant part that a person convicted of a violent crime would not be eligible for parole consideration "until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18–98e. "(Emphasis added.) General Statutes (Rev. to 2013) § 54–125a (b). Accordingly, as of the date of the 2011 enactments, the petitioner was eligible, at the respondent's discretion, to earn risk reduction credit toward his sentence and also toward the date of his first eligibility of parole consideration. Pursuant to this legislation, the Department of Correction did, in fact, award the petitioner credits, measured in days, toward his sentence as well as toward his earliest parole eligibility date.

The 2011 revision to § 54–125a (b), however, was short lived. In 2013, the General Assembly again amended § 54–125a (b). The 2013 enactment provided that a violent offender, such as the petitioner, must serve 85 percent of the definite sentence imposed before becoming eligible for parole. See General Statutes § 54–125a (b). The effect of this change is that the credits that an inmate may earn toward his sentence no longer operate to advance that person's earliest parole eligibility date. It is the change in the legislation between 2011 and 2013 that the petitioner alleges violates his constitutional protection against ex post facto legislation. We are not persuaded.

At the outset, we set forth the standard of review. It is well settled that "[a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record."(Internal quotation marks omitted.) State v. Williamson, 155 Conn.App. 215, 219, 109 A.3d 924 (2015).

Next, we consider the nature of the prohibition against ex post facto laws. In Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), the United States Supreme Court referred to its 1798 opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), in which Justice Samuel Chase, speaking for the majority, outlined the nature of an ex post facto law as follows: "[First]. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [Second]. Every law that aggravates a crime, or makes it greater than it was, when committed. [Third]. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [Fourth]. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." (Emphasis omitted.)

A review of Justice Chase's discussion of the nature of an ex post facto law reveals, as a significant common feature, that for a law to violate the prohibition, it must feature some change from the terms of a law in existence at the time of the criminal act. That feature is entirely sensible, as a core purpose in prohibiting ex post facto laws is to ensure fair notice to a person of the consequences of criminal behavior. As explained by the United States Supreme Court, laws that impose a greater punishment after the commission of a crime than annexed to the crime at the time of its commission run afoul of the ex post facto prohibition because such laws implicate the central concerns of the ex post facto clause: "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). None of those concerns pertains to the appeal at hand.

Here, the petitioner makes no claim that legislation regarding eligibility for parole consideration became more onerous after the date of his criminal behavior. Rather, he claims that new legislation enacted in 2011, several years after his criminal conduct and subsequent incarceration, conferred a benefit on him that was then taken away in 2013. Such a claim, however, does not implicate the ex post facto prohibition because the changes that occurred between 2011 and 2013 have no bearing on the punishment to which the petitioner's criminal conduct exposed him when he committed a robbery in 2003.

In support of his claim, the petitioner relies on our Supreme Court's opinion in Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091 (2002). The petitioner's reliance is misplaced. In Johnson, o...