Rivera v. Commissioner of Correction

• Decision Date: 15 August 2000
• Docket Number: (SC 15938)
• Citation: 254 Conn. 214,756 A.2d 1264
• Court: Connecticut Supreme Court
• Parties: CARLOS M. RIVERA v. COMMISSIONER OF CORRECTION

254 Conn. 214

756 A.2d 1264

CARLOS M. RIVERA v. COMMISSIONER OF CORRECTION

(SC 15938)

Supreme Court of Connecticut.

Argued April 21, 1999.

Officially released August 15, 2000.

Callahan, C. J., and Borden, Norcott, Katz, Palmer, McDonald, Vertefeuille, Js.¹ Steven R. Strom, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Gregory T. D'Auria, Richard T. Biggar and Madeline Melchionne, assistant attorneys general, for the appellant (respondent).

James Park, certified legal intern, with whom was Brett Dignam, for the appellee (petitioner).

Leonard W. Engel filed a brief for the Connecticut Correctional Ombudsman, Inc., as amicus curiae.

Temmy Ann Pieszak filed a brief for the habeas corpus unit of the office of the chief public defender as amicus curiae.

Opinion

PALMER, J.

The principal issue raised by this certified appeal is whether a prisoner who is serving multiple concurrent and consecutive sentences is entitled to have his total number of earned good time credits² applied to reduce his total effective term of imprisonment. We conclude that he is.

The relevant facts and procedural history are undisputed. "The petitioner [was placed] in the custody of the [respondent] commissioner of correction [(commissioner) on] June 17, 1989, when he was arrested and held in lieu of bond on a charge of a violation of General Statutes [Rev. to 1989] § 21a-277 [a].³ He earned nineteen days of presentence good time when he was sentenced... on August 15, 1989, to a term of three years [imprisonment]. On February 9, 1990, while on supervised home release, the petitioner was arrested on other charges and reincarcerated. His home release status was revoked and he continued to serve time on his original three year sentence. On June 5, 1990, he was sentenced ... to eight years [imprisonment] on one count of a violation of General Statutes [Rev. to 1989] § 53a-122⁴ and eight years [imprisonment] on one count of a violation of General Statutes [Rev. to 1989] § 53a-167c.⁵ Both [sentences] were to run concurrent[ly] [with] each other and concurrent[ly] with the sentence of three years he was already serving. [When his two eight year concurrent sentences were imposed], the petitioner had earned ninety days of [statutory] good time credit on [his original three year sentence] including thirty days while on supervised home release in addition to the nineteen days of [presentence] good time prior to [his three year sentence] for a total of 109 days good time. On September 25, 1991, the petitioner received an additional consecutive one year sentence... for a violation of General Statutes [Rev. to 1989] § 53a-167c (a) (1) [as amended by Public Acts 1990, Nos. 90-157, § 2, and 90-250, § 2].

"The petitioner brought this habeas petition because the [commissioner], in calculating the petitioner's good time credit, did not give the petitioner nineteen days of presentence good time and ninety days of [statutory] good time by failing to construe the multiple sentences as one continuous term [under General Statutes § 18-7⁶] for the purposes of calculating good time. The petitioner did not receive [presentence] good time credit or the [statutory] good time credits earned on the three year sentence, on the eight year sentence[s] or on the one year consecutive sentence.

"The [habeas] court agreed with the petitioner that on the basis of ... § 18-7 and Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994), the petitioner's good time credits under [his original three year sentence] should be credited to his overall effective sentence of nine years. The court granted the habeas petition and awarded the petitioner 109 days of good time credit. The court denied the [commissioner's] petition for certification to appeal [pursuant to General Statutes § 52-470 (b)⁷] because the case was not one of first impression and because if the petitioner were held during the time of appeal, he would lose his 109 days of good time credit." Rivera v. Commissioner of Correction, 47 Conn. App. 752, 753-55, 706 A.2d 1383 (1998).

The commissioner appealed from the judgment of the habeas court to the Appellate Court, claiming that the habeas court improperly had: (1) denied his petition for certification to appeal; and (2) ordered that the 109 days of good time credit earned by the petitioner be applied toward the petitioner's total effective nine year term of imprisonment. The Appellate Court dismissed the commissioner's appeal on the ground that the habeas court had not improperly denied the commissioner's petition for certification to appeal. In so concluding, the Appellate Court explained: "In Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995), the Supreme Court set the standard for deciding abuse of discretion on the issue of certification in such a case. [The Appellate Court] recognize[s] that [i]n enacting ... § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed.2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... Simms v. Warden, supra, 616, quoting Lozada v. Deeds, supra, 432. Thus, if an appeal is not frivolous, the habeas court's failure to grant certification to appeal is an abuse of discretion. Simms v. Warden, supra, 616.... Copas v. Commissioner of Correction, supra, 150-51.... Graham v. Commissioner of Correction, 39 Conn. App. 473, 476, 664 A.2d 1207, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995).

"The [commissioner] has not sustained his burden of persuasion that the [habeas] court's denial of his certification to appeal was a clear abuse of discretion or that an injustice has been done. Hinton v. Commissioner of Correction, 43 Conn. App. 549, 551, 684 A.2d 733 (1996), cert. denied, 239 Conn. 958, 688 A.2d 327 (1997). The habeas court and [the Appellate] [C]ourt are bound by the clear language of General Statutes § 18-7, which provides in relevant part: When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.... It is further clear that this portion of § 18-7 applies to General Statutes [Rev. to 1997] § 18-7a,⁸ which provides for the good time credits for prisoners sentenced after July 1, 1983. McCarthy v. Commissioner of Correction, 217 Conn. 568, 581, 587 A.2d 116 (1991). The Supreme Court's decisions in McCarthy ... and Howard v. Commissioner of Correction, supra, 230 Conn. 20-21, as well as [the Appellate] [C]ourt's decision in Wilson v. Warden, 34 Conn. App. 503, 505, 642 A.2d 724, cert. denied, 230 Conn. 908, 644 A.2d 922 (1994), make it clear that all multiple sentences both concurrent and consecutive, whether imposed at the same time or at different times, must be aggregated for the purpose of calculating good time. [The Appellate Court] agree[s] with the habeas court that the petitioner is not seeking additional presentence confinement credits, and that General Statutes § 18-98d⁹ and the case of Payton v. Albert, 209 Conn. 23, 29-30, 547 A.2d 1 (1988), cited by the [commissioner], deal with the transferability of jail time credit¹⁰ and do not apply to this case.

"We find that none of the three criteria of Lozada v. Deeds, supra, 498 U.S. 431-32, has been met and, therefore, the [habeas] court did not abuse its discretion in denying the [commissioner] certification to appeal." (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, supra, 47 Conn. App. 755-57. Accordingly, the Appellate Court dismissed the commissioner's appeal. Id., 757.

We granted the commissioner's petition for certification to appeal, limited to the following two issues: "(1) Whether the Appellate Court properly concluded that the [habeas] court did not abuse its discretion in denying the [commissioner's] certification to appeal to the Appellate Court?" And "(2) [w]hether the Appellate Court properly concluded that [presentence] good time and statutory good time earned on a sentence must be shifted from an earlier sentence and credited to subsequently imposed concurrent sentences?" Rivera v. Commissioner of Correction, 245 Conn. 901, 719 A.2d 1164 (1998). This appeal followed. Although we conclude that the Appellate Court improperly upheld the habeas court's denial of the commissioner's petition for certification to appeal, we nevertheless agree with the determinations of the Appellate Court and the habeas court that the petitioner is entitled to have his total effective term of imprisonment reduced by the 109 days of presentence and statutory good time credit that he had earned while incarcerated in connection with his original three year sentence.

I

The petitioner is no longer incarcerated, having served his sentences less the 109 days good time credit that the habeas court had ordered the commissioner to award to the petitioner. The petitioner claims that, because he is no longer confined, this case is moot and, therefore, we must dismiss the appeal. Because "[m]ootness implicates the court's subject matter jurisdiction... [it] is ... a threshold matter for us to resolve."¹¹ Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996). We disagree that the case is moot.

"It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the...