Washington v. Commissioner of Correction

• Decision Date: 15 July 2008
• Docket Number: No. 18057.,18057.
• Citation: 287 Conn. 792,950 A.2d 1220
• Court: Connecticut Supreme Court
• Parties: Armel WASHINGTON v. COMMISSIONER OF CORRECTION.

950 A.2d 1220

287 Conn. 792

Armel WASHINGTON v. COMMISSIONER OF CORRECTION.

No. 18057.

Supreme Court of Connecticut.

Argued February 5, 2008.

Decided July 15, 2008.

Tejas Bhatt, assistant public defender, with whom were Jennifer L. Bourn, deputy assistant public defender and, on the brief, Lisa A. Vanderhoof, former special deputy assistant public defender, for the appellant (petitioner).

Richard T. Biggar, assistant attorney general, with whom were Rita M. Shair, senior assistant state's attorney and, on the brief, Richard Blumenthal, attorney general, Henri Alexandre, assistant attorney general, and John Davenport, senior assistant state's attorney, for the appellee (respondent).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The central issue raised in this appeal is whether the interpretation of General Statutes § 18-98d, first announced in a trilogy of cases in 2004, can be applied retroactively to prisoners in custody as of the date of that decision without offending their constitutional or statutory rights. See Hunter v. Commissioner of Correction, 271 Conn. 856, 860 A.2d 700 (2004); Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004); Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004). In Harris, we concluded that when a defendant is sentenced for multiple crimes on different days, and the sentences are ordered to be served concurrently, § 18-98d(a) mandates that any presentence confinement credit be applied only once regardless of whether the defendant was incarcerated prior to sentencing on a single charge or simultaneously on multiple charges. Harris v. Commissioner of Correction, supra, at 823, 860 A.2d 715. On appeal, the petitioner, Armel Washington, claims that the retroactive application of Harris, Cox and Hunter to recalculate his release date (1) deprived him of his statutory right to receive presentence confinement credit toward his sentences, (2) deprived him of due process of law because the retroactive application of these cases operated as an ex post facto law by improperly enlarging the punishment for his crimes after their commission, and (3) violated the prohibition against double jeopardy because, at the time the respondent, the commissioner of correction, recalculated his sentences, his previously estimated release date on one sentence already had passed. Additionally, the petitioner argues that the trial court delegated its sentencing authority to the respondent in violation of the separation of powers doctrine and that his trial counsel provided ineffective assistance by mistakenly advising the petitioner as to the availability of presentence confinement credit and by failing to secure the application of that credit to the petitioner's second sentence. After consideration of these claims, we find no impropriety and, therefore, affirm the judgment of the habeas court.

The factual backdrop to this appeal, although somewhat complex, is undisputed and aptly described in the habeas court's memorandum of decision. "The petitioner was the defendant in a criminal case ([Docket No CR99-0482356-S], hereinafter `docket 1') in the judicial district of New Haven. The petitioner was arrested and arraigned in [the] docket 1 case on July 23, 1999. The petitioner posted bond that same day and was released.

"The petitioner also was the defendant in a [second] criminal case ([Docket No. CR00-0488977-S], hereinafter `docket 2') in [geographical area number six in the] judicial district of New Haven. The petitioner was arrested and arraigned in [the] docket 2 [case] on March 9, 2000. The petitioner did not post bond and was held in lieu of bond by the respondent. On March 30, 2000, the petitioner posted bond and was released.

"On April 26, 2000, the petitioner became the defendant in two [additional] criminal cases ([Docket Nos. CR00-0289698-T and CR00-0289699-T] ... `dockets 3 and 4,' respectively) in the judicial district of Waterbury. The petitioner did not post bond [in] either [of the] docket 3 or 4 [cases], and was held in lieu of bond by the respondent.

"On May 17, 2000, the petitioner's bonds in both dockets 1 and 2 were raised so that the petitioner was again held in lieu of bond on those two dockets in addition to dockets 3 and 4.

"On June 14, 2001, the petitioner entered ... guilty pleas in dockets 1 and 2. The [trial] court ... accepted the pleas after canvassing the petitioner. The agreed upon total effective sentence for dockets 1 and 2 was three years [imprisonment], to run concurrently with the sentences the petitioner then expected to be imposed in dockets 3 and 4. [The trial court] continued the matters for sentencing to allow the petitioner to resolve dockets 3 and 4 in [the] Waterbury cases and [to] be sentenced there first. The petitioner thereafter would return to New Haven for sentencing [in] dockets 1 and 2.

"Dockets 3 and 4 were not resolved as anticipated. Consequently, the petitioner returned to New Haven on October 31, 2001, for sentencing [in] dockets 1 and 2. [The trial court] imposed the total effective sentence previously indicated, namely three years.... The total effective sentence was comprised of a one year sentence in docket 1, as well as a three year sentence in docket 2, to run concurrently.

"Upon receiving the mittimi for the docket 1 and 2 sentences, the respondent calculated the presentence confinement credit to be applied to each docket.

"On April 14, 2003, the petitioner was sentenced by the court ... [in dockets 3 and 4]. In accordance with a plea agreement, the petitioner was sentenced to seven years [imprisonment], of which five years is a mandatory minimum, to run concurrently with sentences then being served [in connection with dockets 1 and 2].¹ The judgment mittimus contain[ed] no order pertaining to presentence confinement credit.

"The time sheet maintained by the respondent for docket 1 shows that, on October 31, 2001, the respondent posted 364 days of presentence confinement credit to the docket 1 sentence. While the petitioner had been held in lieu of bond [in] docket 1 from May 17, 2000, until he was sentenced on October 31, 2001, the one year sentence was less than the time held in lieu of bond. Consequently, the petitioner essentially discharged upon sentencing [in] the docket 1 [case]. The time held in lieu of bond satisfied the petitioner's term of incarceration for that docket....

"The time sheet maintained by the respondent for docket 2 shows that, on October 31, 2001, the respondent posted 554 days of presentence confinement credit to the docket 2 sentence. The 554 days represent the time periods of March 9, 2000, through March 30, 2000, and May 17, 2000, through October 31, 2001. The application of that credit resulted in a release date from the docket 2 sentence of April 25, 2003....

"The time sheet maintained by the respondent for docket 3 shows that, upon being sentenced on April 14, 2003, the respondent initially did not post any presentence confinement credit to docket 3. A subsequent posting, dated April 24, 2003, shows, however, that the respondent credited 553 days of presentence confinement credit to docket 3. The 553 days represent the time period of April 26, 2000, through October 31, 2001. The application of that credit resulted in a release date from the docket 3 sentence of October 7, 2008....

"The time sheet for docket 2 shows that, on April 24, 2003, the respondent posted a reduction of 532 days of presentence confinement credit. That posting bears the following notation: `5/17/00-10/31/01 MOVED TO SEQ 6 & 7.' As a result of this reduction, the release date from the docket 2 sentence changed from April 25, 2003, to October 8, 2004.² ...

"The time sheets for dockets 2 and 3 show postings dated February 23, 2005, accompanied by the following entry: `SC 11/04 JC REVIEW.' On November 30, 2004, the Connecticut Supreme Court released a trio of decisions pertaining to the application of presentence confinement credit, namely [Harris, Cox and Hunter]. Thus, the entry `SC 11/04 JC REVIEW' signifies that the respondent conducted a review of jail credit (i.e., presentence confinement credit) as a result of, and pursuant to, the November, 2004 Supreme Court decisions in Harris, Cox and Hunter ....

"As a result of the jail credit review performed on dockets 2 and 3, any jail credits moved to docket 3 were removed and again applied to the docket they had first been applied to immediately after sentencing. Consequently, 532 days of presentence confinement credit were moved from docket 3 to docket 2, thereby advancing the release date on docket 2 from October 8, 2004, to April 25, 2003....

"The removal of 532 days of presentence confinement credit from docket 3 altered the release date [of] that sentence from October 7, 2008, to March 23, 2010. The only presentence confinement credit remaining on docket 3 was the credit for twenty-one days for the time period of April 26, 2000, to May 17, 2000....

"The petitioner has been continuously confined, held either in lieu of bond or as a sentenced prisoner, from April 26, 2000, to the present." (Citations omitted.) Additional facts will be set forth as necessary.

The habeas court concluded that the petitioner could not demonstrate any injustice to warrant the issuance of habeas relief and, therefore, rendered judgment denying the habeas petition. Thereafter, the petitioner sought certification to appeal, which the habeas court granted as to all of the petitioner's claims. On the granting of certification, the petitioner appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

We begin by setting forth the appropriate standard of review. "Although a habeas court's findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review.... [When] the material facts are not...