Steve v. Commissioner of Correction

• Decision Date: 26 September 1995
• Court: Connecticut Court of Appeals
• Parties: Carl STEVE v. COMMISSIONER OF CORRECTION. 13825.

Page 168

665 A.2d 168

39 Conn.App. 455

Carl STEVE v. COMMISSIONER OF CORRECTION.

13825.

Appellate Court of Connecticut.

Argued June 2, 1995.

Decided Sept. 26, 1995.

Deborah DelPrete Sullivan, Assistant Public Defender, for appellant-appellee (petitioner).

L.D. McCallum, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellee-appellant (respondent).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

LAVERY, Judge.

This is an appeal by the petitioner, Carl Steve, from a judgment of the habeas court that granted him partial relief on his claim that the respondent commissioner of correction had miscalculated the credits on his criminal sentence. The respondent cross appeals. The petitioner claims that the habeas court was incorrect (1) in not ordering the respondent to credit the petitioner fully for time served or credited against a vacated sentence, and (2) in denying the petitioner the seven day job credit and outstandingly meritorious performance award credit for the vacated sentence to reduce the five year threshold for enhanced good conduct credit. The respondent, in a cross appeal, claims that the habeas court was incorrect in determining that a prisoner serving multiple concurrent sentences is entitled to have time served on a vacated sentence calculated as postconviction confinement on a subsequent sentence for the same crime or a crime based on the same act. We agree in part with the petitioner and do not agree with the respondent. We reverse the judgment in part.

The following facts are undisputed. On June 13, 1985, the petitioner was arrested in three criminal cases, judicial district of Waterbury docket numbers CR4-118626, CR4-118627 and CR4-118628, and held in lieu of $135,000 bond, which he was unable to post. On October 22, 1985, in CR4-118626, after a jury trial, the petitioner was found guilty of robbery in the first degree and assault in the first degree. In that case the petitioner was first sentenced to the custody of the respondent on December 6, 1985, for a total effective sentence of twenty years, execution suspended after sixteen years, and five years probation. The petitioner appealed the judgment of conviction in CR4-118626.

On December 30, 1985, in CR4-118628, the petitioner entered a plea of guilty to the crime of assault in the first degree and was sentenced to the custody of the respondent for a term of imprisonment of ten years, to be served concurrent with the sentence imposed in CR4-118626. On December 30, 1985, all counts in CR4-118627 were nolled. The petitioner did not appeal his conviction in CR4-118628.

On August 4, 1987, the judgment of conviction of both counts in CR4-118626 was set aside and the case was remanded for a new trial. State v. Steve, 11 Conn.App. 699, 529 A.2d 229 (1987). Upon certification, the state appealed the decision of the Appellate Court to the Supreme Court, which, on June 21, 1988, affirmed the decision of the Appellate Court. State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988).

On July 21, 1988, in CR4-118626, the petitioner entered pleas of nolo contendere to robbery in the first degree, and assault in the first degree and was sentenced to twenty years, execution suspended after ten years and five years probation, on each count, to run concurrently, for a total effective sentence of twenty years, execution suspended after ten years and five years probation.

From December 30, 1985, through and including June 21, 1988, while the appeal in CR4-118626 was pending, and from June 21, 1988, through and including July 21, 1988, the petitioner was serving the sentence in CR4-118628.

Upon resentencing and recommitment of the petitioner in CR4-118626, the respondent calculated the new sentence as commencing on the date it was imposed, July 21, 1988, with all time in confinement from June 13, 1985, to July 21, 1988, treated as presentence confinement and credited pursuant to the provisions of General Statutes § 18-98d. ¹ In so doing, the respondent gave the petitioner no credit in CR4-118626 from December 30, 1985, through July 20, 1988, because, during that time, the petitioner, was also serving the sentence in CR4-118628.

The habeas court in its analysis considered five time periods, but only two are pertinent to this appeal. The first is the time spent in custody after imposition of the concurrent sentence in CR4-118628, but before the original sentence in CR4-118626 was vacated by the favorable decision on appeal. The second is the time spent in custody in CR4-118626 after the appeal, but before the resentencing. The habeas court found that the petitioner was entitled to be credited for the time spent in custody serving the vacated sentence before it was overturned on appeal. It awarded the petitioner all jail credit plus any ancillary credit, such as "good time credit," earned by the petitioner in CR4-118626 from December 30, 1985, through August 4, 1987, the date this court reversed the petitioner's conviction. State v. Steve, supra, 11 Conn.App. 699, 529 A.2d 229.

The habeas court denied any credit to the petitioner after his successful challenge on appeal. That is, the court denied any credit while the state petitioned the Supreme Court for certification, which was subsequently granted, and while the Supreme Court appeal proceeded. The habeas court found that during this period of time the petitioner was in custody awaiting a new trial as a result of the Appellate Court's reversal and that the "vacated sentence ceased being served once the appeal reversed the underlying conviction." As to the petitioner's second claim, the habeas court held that only good conduct credit was to be allowed. He was not to receive a deduction of time for periods of employment under General Statutes § 18-98a or an outstandingly meritorious performance award under General Statutes § 18-98b.

Before deciding the two issues raised by the petitioner on the appeal, we will decide the respondent's cross appeal because, if we agree with the respondent, that determination will be dispositive of the entire appeal. The respondent claims that the petitioner is entitled only to presentence confinement credit on his vacated sentence. Section 18-98d limits the presentence credit "to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement." (Emphasis added.) The respondent claims that since the petitioner was sentenced to a ten year concurrent sentence on December 30, 1985, he was entitled to credit for presentence confinement on the vacated sentence only from the date of arrest until December 30, 1985, when the concurrent sentence was imposed. The respondent claims that prior to 1981, the department of correction, in accordance with General Statutes § 53a-38(c), ² recalculated sentences imposed after successful appeals by prisoners as commencing when the vacated sentence commenced. He further claims that our Supreme Court and this court, in a long line of cases, have ruled that a new sentence commenced when it was imposed, not when the vacated sentence was originally imposed, and that time served on a vacated sentence should not be calculated as "time served" sentence credit, but rather should be calculated as presentence confinement. The respondent cites Moscone v. Manson, 185 Conn. 124, 440 A.2d 848 (1981), Sutton v. Lopes, 202 Conn. 343, 521 A.2d 147 (1987), Casey v. Commissioner of Correction, 215 Conn. 695, 577 A.2d 1051 (1990), and Raucci v. Warden, 30 Conn.App. 190, 619 A.2d 886 (1993), cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993), as binding precedent. The petitioner claims, however, that to treat the time served on the vacated sentence as presentence confinement, together with the lack of credit by virtue of § 18-98d, is a violation of his rights under the federal and state constitutional protection against double jeopardy as set forth in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The habeas court agreed with the petitioner that the time served on the vacated sentence up to the time of our reversal in State v. Steve, supra, 11 Conn.App. 699, 529 A.2d 229, was postconviction confinement. The trial court based its decision on Wright v. Commissioner of Correction, 216 Conn. 220, 578 A.2d 1071 (1990). In Wright, the respondent treated the inmate's service of a vacated sentence as presentence confinement. While serving the sentence that was later vacated, the inmate had accumulated employment and outstandingly meritorious performance credit under §§ 18-98a ³ and 18-98b, ⁴ respectively. Because such credits may be earned only while an inmate is in a postconviction status, the respondent refused to award those credits against a new sentence imposed on reconviction. Id., at 222-23, 578 A.2d 1071. The inmate filed a habeas corpus petition, and the habeas court ordered the respondent to reinstate the credits. Id., at 223, 578 A.2d 1071. On appeal, our Supreme Court held that while the respondent correctly treated the vacated sentence as presentence confinement, the failure to include the earned credits to reduce the new sentence amounted to a violation of the prohibition against double jeopardy. Id., at 226, 578 A.2d 1071.

We find that the holding in Wright v. Commissioner of Correction, supra, 216 Conn. 220, 578 A.2d 1071, applies to the facts in the present case. To conclude otherwise would be to deny credit "for punishment already exacted." Id., at 226, 578 A.2d 1071. Had the petitioner not appealed or had been unsuccessful on appeal, the respondent would have awarded full credit on the original sentence because it would be postconviction jail time. Because the petitioner was successful in overturning the convictions the respondent is regarding the service of the...