Wilson v. Warden

642 A.2d 724, 34 Conn. App. 503, 1994 Conn. App. LEXIS 171
CourtConnecticut Appellate Court
DecidedMay 24, 1994
Docket12740
StatusPublished
Cited by11 cases

This text of 642 A.2d 724 (Wilson v. Warden) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Warden, 642 A.2d 724, 34 Conn. App. 503, 1994 Conn. App. LEXIS 171 (Colo. Ct. App. 1994).

Opinion

Lavery, J.

The respondent state prison warden appeals from the trial court’s judgment granting a writ of habeas corpus to the petitioner, Joseph Wilson. The trial court ruled that the respondent had incorrectly calculated good time1 credit by failing to aggregate con[504]*504current sentences. On appeal, the respondent asserts that concurrent sentences should not be aggregated for the purpose of calculating good time credit and, therefore, the trial court improperly awarded the petitioner additional good time credit. We affirm the decision of the trial court.

The facts of this case are undisputed. The petitioner was convicted of burglary in 1970 and sentenced to serve not less than six nor more than fifteen years in prison. Seven years later, while still serving this first sentence,2 the petitioner was convicted of first degree assault and conspiracy for which he received a sentence of fifteen to thirty years. In 1978, while serving the first two sentences, the petitioner was convicted of first degree robbery and sentenced to be incarcerated for ten to twenty years. The first two sentences were concurrent; the third sentence was consecutive.

Connecticut inmates serving sentences imposed prior to October 1,1976, receive statutory good time credit that shortens their sentences by five days for each month of the sentence. General Statutes § 18-7.3 [505]*505Inmates also receive enhanced good conduct credit of two and one-half additional days per month that the sentence exceeds five years. General Statutes § 18-7. Inmates serving sentences imposed after October 1,1976, receive statutory good time credit of ten days for each month of their sentences. General Statutes § 18-7a (a).4 They also receive enhanced good time credit of five additional days for every month that the sentence exceeds five years.5 General Statutes § 18-7a (a).

The respondent awarded the petitioner enhanced good conduct credit from the five year anniversary of his first sentence until he commenced serving his concurrent second sentence. At that time, the respondent treated the petitioner as a newly confined prisoner and awarded him only standard good conduct credit.6 The [506]*506respondent based this calculation on the theory that concurrent sentences are not aggregated like consecutive sentences. See McCarthy v. Commissioner of Correction, 217 Conn. 568, 581, 587 A.2d 116 (1991) (holding that consecutive sentences must be aggregated). Thus, when the petitioner began serving his second sentence, he had not yet served five years on that sentence and had not yet earned the right to any enhanced good conduct credit.

The petitioner argues that concurrent sentences should not be treated differently from consecutive sentences. Under his theory, because he had served five years, he was entitled to enhanced good time credit for the remainder of his incarceration. He seeks to have this court affirm the trial court’s award of 300 additional days of good conduct credit.7

General Statutes § 18-7 provides in pertinent part that ‘ ‘[w]hen any prisoner is held under more than one conviction, the several terms of imprisonment 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.) The respondent argues that this provision applies solely to consecutive sentences. We conclude, however, that this language requires that concurrent sentences be construed as one term.

First, the plain language of the statute makes clear that it is intended to control all prisoners serving more than one conviction. It does not distinguish between concurrent and consecutive sentences. The distinction between concurrent and consecutive sentences has existed for more than a century. See General Statutes [507]*507(1888 Rev.) § 1496. Had the legislature intended to limit the language of § 18-7 to consecutive sentences, it could have done so.

Second, our Supreme Court’s recent treatment of this language demonstrates that § 18-7 requires aggregation. In McCarthy v. Commissioner of Correction, supra, 217 Conn. 570-81, the court determined that sentences imposed under § 18-7a should be aggregated in accordance with the language of § 18-7 even though § 18-7a lacks the aggregation language. The court never addressed whether consecutive sentences imposed under § 18-7 should be aggregated; it accepted as a given that § 18-7 required aggregation. See id., 574.

Third, McCarthy did not limit the aggregation language of § 18-7 to consecutive sentences alone. The court considered the aggregation issue in the context of consecutive sentences because that was the nature of the multiple sentences the appellant was serving. Id., 570. Thus, the court’s ruling that § 18-7 requires aggregation of consecutive sentences imposed under § 18-7a cannot be read to imply that only consecutive sentences are to be aggregated.

Fourth, other existing statutes manifest the legislature’s intent that all multiple sentences be construed as one continuous term. Id., 576. “For example, General Statutes § 18-98b requires that '[wjhen any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award ....’” Id., 576-77. General Statutes § 53a-37 essentially requires a sentencing court to aggregate both consecutive and concurrent sentences by requiring the court to state the total “effective” sentence imposed.

[508]*508Fifth, the respondent argues that General Statutes § 53a-38 (b) (1) demonstrates that the aggregation language of General Statutes § 18-7 does not apply to concurrent sentences. Section 53a-38 (b) (1) provides that concurrent sentences “merge in and are satisfied by discharge of the term which has the longest term to run.” Section 53a-38 (b) (2) provides, however, that consecutive sentences aggregate. The respondent contrasts the merging of concurrent sentences with the aggregation of consecutive sentences and concludes that § 53a-38 (b) restricts aggregation to consecutive sentences.

The respondent obviously interprets “merge” to mean replace.8 Thus, an inmate serving a subsequent concurrent term is treated as if he had never served any prior sentence; the earlier term becomes irrelevant. Our Supreme Court, however, has twice rejected such an interpretation. S ee Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988) (suggesting that multiple merged terms coexist but are intermingled and satisfied by discharge of the longer); State v. Clemons, 168 Conn. 395, 409, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975) (rejecting argument that subsequent concurrent sentences replace earlier sentences). Concurrent sentences remain “separate terms of imprisonment which the legislature has permitted to be served at one time.” State v. Clemons, supra, 409.

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1996 Conn. Super. Ct. 4072 (Connecticut Superior Court, 1996)
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Bluebook (online)
642 A.2d 724, 34 Conn. App. 503, 1994 Conn. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-warden-connappct-1994.