313199 v. Warden (2010)

MEMORANDUM OF DECISION ON PETITIONER'S AND RESPONDENT'S MOTIONS FOR SUMMARY JUDGMENT

The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed on December 19, 2009.   After the appointment of a special public defender, the petition was amended on December 22, 2009.   The amended petition asserts a single claim:  that the petitioner's right to due process has been violated because he fails to qualify for statutory good time credits on his sentences.   On January 12, 2010, the respondent filed a motion for summary judgment, accompanied by a memorandum of law and supporting documents, including mittimuses, transcripts, substitute informations and an affidavit.   One day later, on January 13, 2010, the respondent filed a return the amended petition denying that the petitioner is entitled to relief and that the respondent has correctly calculated his sentences of confinement.

On January 15, 2010, the petitioner filed a cross-motion for summary judgment, accompanied by a memorandum of law.   On January 25, 2010, the petitioner filed a reply to the return denying, amongst other assertions in the return, that the respondent has correctly calculated his sentences of confinement.

The parties appeared before this court on January 28, 2010, for a hearing on the motions for summary judgment.   For the reasons stated more fully below, the respondent's motion for summary judgment is granted, and the petitioner's cross-motion for summary judgment is denied.

APPLICABLE LEGAL STANDARD

Practice Book § 23-37 provides that “[a]t any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Citation omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

FINDINGS OF FACT

The parties do not disagree on the relevant facts.   The petitioner was the defendant in four criminal cases, CR 03-324531, CR 03-325480, CR 03-324710 and CR 03-325942, in the judicial district of Waterbury.   The charges in those dockets included sexual assault in the first degree, with a victim under thirteen years of age;  illegal sexual contact with a victim less than sixteen years of age;  risk of injury to a child;  and other charges, involving victims including his own biological child and children whose step-father he became upon marrying their mother.   The state alleged that the offenses were committed frequently and repeatedly against the children on diverse dates beginning in 1993 and continuing at least into 1999.

On May 10, 2006, the petitioner withdrew his prior pleas and elections and pleaded guilty under the Alford ¹ doctrine in CR 03-324531, CR 03-325480, CR 03-324710 and CR 03-325942.   In docket number ending 531, the prosecutor indicated that the victim in that docket, KB, whose birth date is January 19, 1987, complained about an offense that occurred in 1995, when KB would have been about eight years old.   Transcript (May 10, 2006), at pg. 3. The court, Iannotti, J., discussed the offense date with counsel because it would impact the mandatory minimum sentence the court would have to impose.   Id., at pgs. 3-5.   The prosecutor then recited the facts in support of the conviction.  Id., at pg. 5.

In docket number ending 710, which involved two different victims, CL and DM, whose birth dates respectively are December 1990 and June 8, 1992, the allegations were that the offenses occurred when CL was between ages five and nine years of age (i.e., 1995-1999) and DM was between ages three and seven (i.e., 1995-1999).  Id., at pg. 6. Docket number ending 480, which involved a fourth victim, JL, whose date of birth is July 10, 1998, also had offense dates spanning the 1995-1999 time frame.  Id.

Judge Iannotti then again addressed whether the offense date would require either a one-year, two-year or ten-year mandatory minimum due to changes to the mandatory minimum sentence.  Id., at pg. 7. The petitioner was thoroughly canvassed by the court on all charges.  Id., at pgs. 7-14.   The court reiterated that the offense dates for the risk of injury charges went back to 1995.  Id., at pg. 10.   The petitioner, after discussion with his attorney, entered his guilty pleas in accordance with the Alford doctrine.  Id., at pg. 12.   The court, after finding the pleas were knowingly and voluntarily made with the assistance of competent counsel, and that there were factual bases, accepted the pleas.  Id., at pg. 14.   The matter was continued to June 14, 2006, for sentencing in accordance with the plea agreement.

On June 14, 2006, the court imposed the following sentences:  in docket number ending 531, a total effective sentence of twenty years to serve, suspended after the service of twelve years, of which one year is a mandatory minimum, followed by ten years probation;  in docket number ending 710, a total effective sentence of ten years to serve, concurrent with docket number 531;  in docket number ending 480, a total effective sentence of ten years to serve, concurrent with all other sentences;  and in docket number ending 942, a total effective sentence of ten years to serve, concurrent with all other sentences.   The total effective sentence for all four dockets was twenty years to serve, suspended after the service of twelve years, of which one year is a mandatory minimum, followed by ten years of probation.   The state entered nolles on any remaining counts and files.   Transcript (June 14, 2006), at pgs. 12-13.   The judgment mittimuses for all four Waterbury dockets indicate as a date of offense “Diverse days 1993-1999” for all sentenced counts.

The petitioner also was the defendant in a criminal case, CR 03-0020253, in the judicial district of New Britain.   The petitioner was sentenced on June 29, 2006, on one count of risk of injury to a minor, in violation of General Statutes § 53-21(a)(1), to a total effective sentence of twenty years to serve, execution suspended after the service often years, followed by ten years probation, to run concurrent with present sentences.   The judgment mittimus for the New Britain sentence indicates that the offense date was “1999-2002.”

Upon receiving the petitioner into custody on these five mittimuses, the Department of Correction determined the presentence confinement credits for each docket and applied such credits accordingly.²  Based upon the judgment mittimuses, the Department of Correction determined that the petitioner was not eligible to receive statutory good, time credits on all five dockets because the petitioner was sentenced on all dockets for offenses that occurred on or after October 1, 1994.

The Department of Correction has determined that the petitioner's current controlling sentence, the sentence imposed in docket number ending 531 committing the petitioner for twenty years to serve, suspended after the service of twelve years, of which one year is a mandatory minimum, results in an estimated release date in September 2015.

Additional facts will be discussed as necessary to resolve the claims.

DISCUSSION

The petitioner makes several claims and arguments in support of his claim that he is entitled to statutory good time credits.   In his amended petition, the petitioner asserts that because the petitioner was convicted by plea, the state was not put to proving the specific dates upon which the offenses were committed.   Because the state alleged the offenses were committed between 1993 and 1999, the respondent had the option of designating a date prior to October 1, 1994, as the operative offense date.   Selection of a date preceding October 1, 1994, would permit the petitioner to earn good time credits.

The petitioner goes on to claim that a date preceding October 1, 1994, would be less onerous than what the petitioner presently is serving.   The petitioner claims that because the determination that he is good time ineligible is a more onerous sentence, the rule of lenity requires that he have the opportunity to serve a sentence under which he receives good time credits.   Citing to State v. Rawls, 198 Conn. 111, 121-22, 502 A.2d 374 (1985), the petitioner argues that the rule of lenity applies to his sentences because General Statutes “ §§ 18-7a and 18-100d are clearly ambiguous as applied by the respondent in that there was no more logical or factual basis to designate a date subsequent to September 30, 1994 as the operative offense date than there was to designate a date in 1993 or in 1994 prior to October 1, 1994.”   Amended Petition, at pg. 3.

In the memorandum in support of his cross-motion for summary judgment, the petitioner concedes, as he must, that he is not entitled to good time credits on the New Britain sentence because the entire offense range, 1999-2002, is after October 1, 1994.   The petitioner emphasizes that the relief he seeks only pertains to the Waterbury sentences.   Memorandum of Law, at pg. 4.

The petitioner then posits the following argument:  “[The] respondent Department of Correction does not go behind the judgment mittimuses it receives from the sentencing court when classifying an inmate and determining whether they are entitled to statutory good time.   The question presented to this court is whether a mittimus specifying an offense date of 1993-1999 justifies respondent in concluding that the inmate is not entitled to statutory good time on that conviction.”  Id., at pgs. 4-5.   Again citing to State v. Rawls, the petitioner argues that the rule of lenity must be applied to his Waterbury sentences because there is an ambiguity as to whether he has been convicted of an offense committed on or after October 1, 1994.  Id., at pg. 5.

The petitioner then addresses the respondent's reliance on George M. v. Commissioner of Correction, 290 Conn. 653, 967 A.2d 179 (2009), “in which our Connecticut Supreme Court held that the petitioner was not entitled to relief because he failed to prove, in habeas court, his allegation that he was not convicted of an offense committed on or subsequent to October 1, 1994.   That was a proper holding.”   Memorandum of Law, at pg. 5. The petitioner then speculates that the petitioner in George M. “might well have prevailed if he had drafted his allegations differently, as petitioner herein has done.   Here petitioner has alleged only that respondent has acted arbitrarily by designating October 1, [1994] as the operative date for purposes of applying § 18-100d when classifying him.   Petitioner contends that this [is] improper because there are ambiguities in the statute.”  Id.

“Petitioner herein does not allege he has not been convicted of an offense committed on or after October 1, 1994.   Rather he asserts he was convicted of a single instance of the offense charged in each docket, committed on a date not specifically known between 1993 and 1999. § 18-100d requires respondent to ascertain a specific date in order to determine whether petitioner is entitled to statutory good time.   The statute is ambiguous as to how that date shall be ascertained, entitling petitioner, pursuant to the rule of lenity, to have a date ascertained that results in the more lenient punishment.”  (Emphasis added.)  Id., at pgs. 6-7.

The court first notes that the Waterbury judgment mittimuses are not ambiguous:  all four mittimuses, which indicate “Diverse days 1993-1999” as the offense date, clearly encompass offense dates subsequent to October 1, 1994.   While all of 1993 and a majority of 1994 precede October 1, 1994, dates subsequent to October 1, 1994 and all of 1995, 1996, 1997, 1998 and 1999 obviously do not precede October 1, 1994.   The respondent has quite readily and correctly determined that the petitioner stands convicted of offenses that occurred after October 1, 1994, and is not good time eligible on all four Waterbury sentences.   Contrary to the petitioner's claim, the respondent does not have the “option” to choose a date that precedes October 1, 1994, when there are five entire calendar years subsequent to that date on the mittimuses.   The respondent has done nothing that can be understood to be arbitrary.

The petitioner's claims and arguments all flow from one critically flawed assertion:  that he was convicted of a single instance of the offense charged in each docket, committed on a date not specifically known between 1993 and 1999.   Simply put, the court fails to see how such a factual assertion can be made given the underlying record.   At the time the petitioner pleaded guilty, albeit under Alford, the factual bases for the convictions, as recited by the prosecutor, do not encompass any dates preceding October 1, 1994.   The fact that the petitioner voluntarily pleaded under Alford does not permit him to now argue that his Waterbury offense dates preceded October 1, 1994.

Based upon the foregoing, the court concludes that the petitioner is not entitled judgment as a matter of law.   Therefore, the respondent's motion for summary judgment is granted;  the petitioner's cross-motion for summary judgment is denied.   Counsel for the petitioner shall prepare and file with the clerk a judgment file within thirty days of the date of this memorandum of decision.

Nazzaro, J.

FOOTNOTES

FN1. “Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ․ A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ․ (Citation omitted;  emphasis added;  internal quotation marks omitted.)  State v. Daniels, 248 Conn. 64, 66-67 n.2, 726 A.2d 520 (1999).   The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty.   By entering such a plea, a defendant may be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary ․” (Footnote omitted.)  State v. Faraday, 268 Conn. 174, 204-05, 842 A.2d 567 (2004)..  FN1. “Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ․ A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ․ (Citation omitted;  emphasis added;  internal quotation marks omitted.)  State v. Daniels, 248 Conn. 64, 66-67 n.2, 726 A.2d 520 (1999).   The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty.   By entering such a plea, a defendant may be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary ․” (Footnote omitted.)  State v. Faraday, 268 Conn. 174, 204-05, 842 A.2d 567 (2004).

FN2. There is no dispute in this matter regarding the calculation and application of presentence confinement credits, so the court will not address them in detail..  FN2. There is no dispute in this matter regarding the calculation and application of presentence confinement credits, so the court will not address them in detail.

Nazzaro, John J., J.