State of Connecticut v. Deshawn Johnson (2012)

MEMORANDUM OF DECISION RE MOTION TO MODIFY MITTIMUS

In March 2001, this court sentenced the petitioner, DeShawn Johnson, to the custody of the Commissioner of Correction for a period of ten years for violating General Statutes § 21a–277(a) (illegal manufacture or distribution of a controlled or narcotic substance with the intent to sell).   Pending before the court is the petitioner's motion to modify mittimus.   He has filed this motion as a pro-se or self-represented party.   Relying on General Statutes § 52–228 ¹ and Practice Book § 17–3,² the petitioner seeks to modify the mittimus ³ on the ground that he is entitled to receive credit against his sentence for time that he served in New York prison.

Specifically, the petitioner alleges that after he began serving his sentence, he was released on parole and his parole supervision was transferred to New York authorities.   While in New York, he absconded.   Subsequently, he was returned to custody on a parole violation warrant and held by New York authorities for a period of time before returning to Connecticut.   The Connecticut Board of Pardons & Paroles revoked the petitioner's parole and ordered him returned to the custody of the commissioner.   The petitioner claims that the board's calculation of the time that he is still required to serve on his sentence fails to reflect credit for the time he spent incarcerated in New York while being held on the parole violation warrant.   In the present motion, he seeks an order from the sentencing court directing a modification of his mittimus to reflect this credit.

The parties' submissions do not indicate whether the petitioner's claim for this credit was explicitly presented to the board of pardons & paroles for consideration or, if so, how the board either addressed the claim or explained its rejection of the claim.   The court issued two scheduling orders directing the state to respond to the motion, but, except for filing an objection stating that it “opposes any modification inconsistent with the Board of Pardons and Paroles' findings,” the state has essentially ignored the court's orders to specifically respond to the merits of the petitioner's claim.   The court would hold a hearing to allow the parties to address the petitioner's claim more fully, except for the court's conclusion that it lacks jurisdiction to entertain the motion.

A motion to modify the judgment mittimus is not the procedurally appropriate way for the petitioner to assert a claim that he is entitled to a credit to reduce the time he must serve in order to satisfy his sentence.   The mittimus is essentially a clerical document evidencing conviction, sentence and commitment.   See generally Commissioner of Correction v. Gordon, 228 Conn. 384, 391–2, 636 A.2d 799 (1994).   The mittimus accurately reflects the offense the petitioner committed, the sentence imposed and his commitment to the custody of the commissioner of correction.   The petitioner does not allege that his sentence was illegal or that the judgment mittimus was flawed.

“Connecticut ․ has long regarded the mittimus merely as a clerical document by virtue of which a person is transported to and rightly held in prison ․ We have observed that a mittimus after conviction in a criminal case is similar to an execution after judgment in a civil case;  it is final process and carries into effect the judgment of the court.”  (Citations omitted;  internal quotation marks omitted.)  Commissioner of Correction v. Gordon, supra, 228 Conn. 392.

“In a criminal case the imposition of sentence is the judgment of the court ․ When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution.   At this point jurisdiction of the court over the prisoner terminates ․ [T]he court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.”  (Citations omitted;  internal quotation marks omitted.)  State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006).   See also State v. Das, 291 Conn. 356, 362, 968 A.2d 367 (2009) (“jurisdiction of the sentencing court terminates once a defendant's sentence has begun”);  State v. Luzietti, 230 Conn. 427, 431–32, 646 A.2d 85 (1994) (trial court lost jurisdiction over case when judgment mittimus was issued).

The court finds that its sentence has been put into effect.   Thus, the petitioner's custody has been transferred to the commissioner of correction and this court's jurisdiction over the petitioner and his case have ended.   This court, therefore, lacks authority to consider the merits of the petitioner's claim regarding the board's calculation of the time he is required to serve in order to complete his sentence.   The petitioner may have recourse under the habeas corpus statute, General Statutes § 52–466, but this court expresses no opinion on that subject.   Cf., Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000) (considering habeas corpus claim for jail time credit).

Therefore, for the foregoing reasons, the petitioner's motion to modify mittimus is dismissed.

So ordered this 19th day of January 2012.

STEVENS, J.

FOOTNOTES

FN1. Section 52–228, which governs civil judgments, provides:  “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the party recovering the judgment may have the amount of the judgment decreased by remittitur to the amount which is due, provided reasonable notice has been given to the adverse party or his attorney.   The court may thereupon order the record of the judgment to be corrected, and affirm the judgment for the amount to which it has been decreased.”.  FN1. Section 52–228, which governs civil judgments, provides:  “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the party recovering the judgment may have the amount of the judgment decreased by remittitur to the amount which is due, provided reasonable notice has been given to the adverse party or his attorney.   The court may thereupon order the record of the judgment to be corrected, and affirm the judgment for the amount to which it has been decreased.”

FN2. Practice Book § 17–3, which also governs civil judgments, provides:  “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the excess may be remitted by the party recovering the judgment, at any time, reasonable notice being first given to the adverse party or that party's attorney;  and the judicial authority may thereupon order the record of such judgment to be corrected, and affirm the same for the amount to which it has been remitted.”.  FN2. Practice Book § 17–3, which also governs civil judgments, provides:  “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the excess may be remitted by the party recovering the judgment, at any time, reasonable notice being first given to the adverse party or that party's attorney;  and the judicial authority may thereupon order the record of such judgment to be corrected, and affirm the same for the amount to which it has been remitted.”

FN3. The petitioner has attached a copy of the judgment mittimus to his motion..  FN3. The petitioner has attached a copy of the judgment mittimus to his motion.

Stevens, Barry K., J.