Mitchell v. Commissioner of Correction

893 A.2d 445, 94 Conn. App. 210, 2006 Conn. App. LEXIS 108
Connecticut Appellate Court·Decided March 14, 2006·No. AC 25491·Published·Cited by 3 cases

Opinion

Opinion

LAVERY, C. J.

The petitioner, Jerry Mitchell, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the respondent, the commissioner of correction, failed to aggregate his multiple sentences when calculating statutory good time credit, thereby forfeiting statutory good time credit, under General Statutes § 18-7, from his earlier sentences in violation of his constitutional rights to due process and equal protection. Because the petitioner has failed to furnish an adequate record for review, we affirm the judgment of the habeas court.

The parties stipulated to the following facts. The petitioner was sentenced to an indeterminate term of eighteen to thirty-six months incarceration on a conviction of burglary in the third degree (sentence one) on July 26, 1978. The respondent credited the petitioner 180 days of statutory good time on the eighteen month minimum and 360 days on the thirty-six month maxi[212]*212mum of sentence one, and the petitioner was released on parole on October 25, 1979. On November 13, 1979, the petitioner was readmitted to the respondent’s custody on new criminal charges and subsequently was convicted of assault in the second degree. The court sentenced the petitioner on April 25, 1980, to a term of four to eight years incarceration to serve (sentence two). As to that sentence, the respondent credited the petitioner 480 days of good time for the four year minimum and 1140 days of credit for the eight year maximum.

While serving sentence two, the petitioner was given a furlough from Gates Correctional Institution in late May or early June, 1983, and then was listed as “absent without leave ... or escape from his furlough” on June 6,1983. On June 27,1983, the petitioner was readmitted to the respondent’s custody and listed as “escapee returned with new charges”; he subsequently was convicted of felony murder for a crime committed on June 24, 1983.1 On March 2, 1984, the petitioner was sentenced to forty years to serve (sentence three).2

Because sentence three was for a crime committed on June 24, 1983, the corresponding good time credit was calculated according to General Statutes § 18-7a (b) .3 As the court recounted, the petitioner “received [213]*213the benefit of forty years worth of good time [credit], posted ‘up front’ . . . resulting in a reduction of 5760 days for statutory good time . . . .” The parties stipulated, and the court’s memorandum of decision reflects, that the respondent “did not credit sentence three with credits that had previously been posted to [the prior two sentences].”

On May 8, 2003, the petitioner filed a habeas petition seeking a correction of his good time credit. The petitioner subsequently filed a motion for summary judgment, which, after briefing and a hearing, the court denied. The court rendered judgment denying the habeas petition and thereafter granted the petition for certification to appeal. This appeal followed.

Good time credit is a creation of legislative grace. Accordingly, we first address the statutory framework from which the petitioner’s claim arises.4 General Statutes § 18-7 provides in relevant part: “Any prisoner sentenced to a term of imprisonment prior to October 1, 1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence . . . provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all or any portion of the time earned. . . . When any prisoner is held under more than one conviction, the several terms of imprison-[214]*214merit imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. . . .” (Emphasis added.)

In McCarthy v. Commissioner of Correction, 217 Conn. 568, 581, 575, 587 A.2d 116 (1991), our Supreme Court held that the one continuous term language of § 18-7 applies to consecutive sentences governed by § 18-7a (a).5 The court likewise concluded in Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994), that the petitioner’s sentences, whether consecutive or concurrent and regardless of when they had been imposed, must be treated as one continuous term for purposes of applying statutory good time credit earned under § 18-7a (c).6 See also Rivera v. Commis[215]*215sioner of Correction, 254 Conn. 214, 236-37, 756 A.2d 1264 (2000) (aggregation requirement of § 18-7 applies to all subsections of § 18-7a); Wilson v. Warden, 34 Conn. App. 503, 509, 642 A.2d 724 (plain language of § 18-7 requires all multiple sentences be aggregated for purposes of calculating good time credit), cert. denied, 230 Conn. 908, 644 A.2d 922 (1994). In light of the foregoing, it is clear that all multiple sentences both concurrent and consecutive, whether imposed at the same time or at different times, must be aggregated for the purpose of calculating good time. It is undisputed that the petitioner was held under more than one conviction following the felony murder conviction and sentencing.

Because the present case involves a break in the petitioner’s confinement, the respondent argues that aggregation is not required. The respondent has provided the court no authority for that assertion. At its essence, the respondent’s argument attempts to rewrite § 18-7. Specifically, it would have us hold that aggregation is required only when a prisoner is continuously held under more than one conviction. We decline that invitation.

Our Supreme Court has stated that the “statutory language of §§ 18-7a and 18-7 is clear and unambiguous and, therefore, courts cannot, by construction, read into such statutes provisions which are not clearly stated.” Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); see also Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988); Moscone v. Manson, 185 Conn. 124, 133, 440 A.2d 848 (1981). Our focus is properly on the meaning of what the legislature did say, rather than what it meant to say. Delevieleuse v. Manson, 184 Conn. [216]*216434, 438, 439 A.2d 1055 (1981). Section 18-7 requires aggregation whenever a prisoner is held under more than one conviction.

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Mitchell v. Commissioner of Correction, 893 A.2d 445, 94 Conn. App. 210, 2006 Conn. App. LEXIS 108 (Colo. Ct. App. 2006).

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