87363 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On August 22, 2008, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended by appointed counsel on February 9, 2010.   The amended petition raises a single claim:  that the respondent has failed to credit the petitioner with one hundred and forty-two days of presentence confinement credits he is entitled to receive.   The respondent's return denies that the petitioner is entitled to the credits he seeks and asserts as a defense that the respondent has correctly calculated the petitioner's sentences of confinement.

The matter came before this court for a trial on the merits on May 27, 2010.   Eleven judgment mittimuses were entered into evidence, as well as several Department of Correction (DOC) documents and the transcript of the July 7, 2008 sentencing transcript.   Additionally, the court heard testimony presented by the petitioner and DOC Records Specialist II Joanne Leboeuf.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.   For the reasons stated more fully below, the petition for a writ of habeas corpus is denied.

FINDINGS OF FACT

1. The petitioner was the defendant in a case in the judicial district of New Haven under docket number CR02-3271 (New Haven case), in which he was charged with burglary in the second degree, in violation of General Statutes § 53a-102.

2. The petitioner pleaded guilty in the New Haven case and, on September 18, 2002, was sentenced to a term of ten years, execution suspended after the service of six years, with three years conditional discharge (New Haven sentence).   The judgment mittimus indicates that the petitioner was to receive presentence confinement credit from March 6, 2002 through September 18, 2002.   Respondent's Exhibit A. The petitioner received these credits and they are not at issue in the instant matter.

3. On or about April 1, 2005, the petitioner was released to supervised parole.   Petitioner's Exhibit 2, at pg. 3. In accordance with General Statutes § 54-125a (f), any person released on parole remains in the custody of the Commissioner of Correction.

4. While released to parole, the petitioner committed several new offenses, as evidenced by four judgment mittimuses indicating offense dates of either 2005 or 2006.   Respondent's Exhibits G, H, I and J. See also Petitioner's Exhibit 1 (Transcript, July 7, 2008).

5. The petitioner was classified by DOC on November 8, 2006 as an absconder from parole.   Petitioner's Exhibit 2, at pg. 3. Upon being classified as a parole absconder, the petitioner ceased having time on parole release computed as part of his term of imprisonment.   See General Statutes § 18-18;  Asherman v. Meachum, 213 Conn. 38, 48-49, 566 A.2d 663 (1989).

5. According to the petitioner's testimony, he was arrested in New York and bond was set by the New York court.   Per the petitioner, he posted that bond.

6. The petitioner was returned to Connecticut and was reincarcerated on February 15, 2008, to continue serving the sentence interrupted by absconding from parole.   Stated somewhat differently, the petitioner's status again was that of a sentenced prisoner confined to a correctional facility.   However, the petitioner was also held simultaneously in presentence confinement on charges accumulated while on parole.

7. On July 7, 2008, the petitioner was sentenced in docket number CR05-212334, in the judicial district of Fairfield at Bridgeport (Bridgeport case), in accordance with a plea agreement, to a term of two and one-half years to serve, consecutive to present sentences then being served (Bridgeport sentence).   Respondent's Exhibit K.

8. Upon receiving the petitioner into custody on the July 7, 2008 mittimus, the respondent designated the time from the date the petitioner became a parole absconder until he returned to custody in Connecticut as “dead time” that did not count toward any term of imprisonment.

9. The court will discuss additional facts as needed.

DISCUSSION

The petitioner here seeks as relief one hundred and forty-two days of presentence confinement credit for the time period of February 15 to July 7, 2008.   During that time period, the petitioner was both a sentenced prisoner and held in presentence confinement.   The petitioner acknowledges that this time is designated as “dead time,” yet asks nevertheless to be given credit.   The relief sought by the petitioner simply is not available.

“Section 18-98d governs the issuance of jail credit to prisoners incarcerated prior to sentencing.   Subsection (a) creates a right to credit for days spent in prison prior to sentencing.  General Statutes § 18-98d(a)(1) provides in relevant part:  ‘Any person who is confined ․ under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed ․’ ․ The statute also excludes from this credit any time that a prisoner spends incarcerated for a prior conviction before sentencing on a separate, pending charge.   See General Statutes § 18-98d(a)(1)(B).  Finally, subsection (c) of § 18-98d ․ charges the respondent with the responsibility for correctly applying presentence confinement credit to a prisoner's sentence.”  (Emphasis added.)  Washington v. Commissioner of Correction, 287 Conn. 792, 800-01, 950 A.2d 1220 (2008).

The presentence confinement credit the petitioner seeks is foreclosed by General Statutes § 18-98d(a)(1)(B).  At the habeas corpus trial, the petitioner argued that the respondent should not have performed any presentence confinement credit calculations impacting the Bridgeport sentence, which is a consecutive sentence, until such time as the New Haven sentence was fully executed.   This argument is entirely without foundation or merit and displays a fundamental misunderstanding about the statutes governing presentence confinement credit and DOC's statutory duty to ensure each person eligible to receive such credit receives the correct reduction of a sentence.  General Statutes § 18-98d(a)(1)(B) and (c).

By operation of General Statutes § 18-98d(a)(1)(B), the petitioner was ineligible to earn presentence confinement on the Bridgeport case while he was a sentenced prisoner for the New Haven case.   The fact that the Bridgeport sentence was ordered to run consecutively is irrelevant to the petitioner's ineligibility to have the one hundred and forty-two days posted to the Bridgeport sentence.   Stated somewhat differently, if the respondent were to perform calculations and post the credits after the New Haven sentence is fully executed, the respondent would violate General Statutes § 18-98d(a)(1)(B) by awarding the petitioner presentence confinement credit for a time period he was a sentenced prisoner on the New Haven sentence.   The petitioner would not, thereby, receive the correct reduction is his sentence.

Based upon the foregoing, the court concludes that the respondent has correctly calculated and applied presentence confinement credits to the petitioner's sentences at issue.

Conclusion

The petitioner has failed to prove he is entitled to the presentence confinement credit he is seeking.   Therefore, judgment shall enter denying the petition for a writ of habeas corpus.   Counsel for the petitioner shall prepare a judgment file, which shall be filed with the clerk within thirty days of the date of this decision.

It is so ordered.

T. Santos, J.

Santos, Thelma A., J.