Rios v. Comm'r of Corr.

312 A.3d 1059

224 Conn.App. 350

Alberto RIOS

v.COMMISSIONER OF CORRECTION

(AC 46164)

Appellate Court of Connecticut.

Argued November 6, 2023

Officially Released March 26, 2024

Edward Rowley, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellant (respondent).

Judie Marshall, assigned counsel, for the appellee (petitioner).

Alvord, Elgo and Prescott, Js.

PRESCOTT, J.

The present appeal concerns the determination of the habeas court that an amended administrative directive of the respondent, the Commissioner of Correction, as applied to the petitioner, Alberto Rios, violated the ex post facto clause of the United States constitution. The amended administrative directive at issue, which the habeas court concluded constituted a law within the meaning of the ex post facto clause, changed the calculation of credits an inmate may earn under the risk reduction earned credits (RREC) program. That program was created by General Statutes § 18-98e,¹ and allows eligible inmates to earn a certain amount of credit per month toward completion of their sentences.

The respondent appeals from the summary judgment rendered by the habeas court granting the petition for a writ of habeas corpus filed by the petitioner. The respondent also appeals from the court’s denial of his motion to dismiss, in which he asserted that the habeas court lacked jurisdiction over the petitioner’s ex post facto claim and that the petitioner failed to state a claim upon which habeas corpus relief can be granted.

On appeal, the respondent first claims that the court improperly concluded that the amended administrative directive at issue was subject to ex post facto scrutiny because it constitutes a law within the meaning of that clause. The respondent also argues, in the alternative, that, even if the amended administrative directive were subject to scrutiny under the ex post facto clause because it constitutes a law within the meaning of that clause, the court nonetheless improperly concluded that the application of the amended administrative directive to the petitioner violated the ex post facto clause prohibition. We agree with the respondent’s first argument and, accordingly, reverse the judgment of the habeas court.

[1] At the outset, we note that "[t]he ex post facto prohibition forbids the Congress and the [s]tates to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." (Footnote omitted; internal quotation marks omitted.) Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).

The following undisputed facts and procedural history are relevant to our resolution of the respondent’s claims on appeal. The petitioner was convicted, in connection with conduct occurring on April 22, 2013, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault in the second degree in violation of General Statutes § 53a-60, and three counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63. On May 15, 2014, he was sentenced to twenty years of incarceration, suspended after fourteen years, followed by five years of probation.

Pursuant to the RREC program created by § 18-98e, the respondent has the discretion to award RREC to eligible inmates, which credits count toward a completion of their sentences of up to a maximum of five days per month for such things as good behavior, participation in eligible programs and activities, and obedience to institutional rules. The administrative directive of the Department of Correction (department) concerning the earning of RREC that was in effect at the time the petitioner committed the underlying offenses was administrative directive 4.2A (2013 administrative directive). Conn. Dept. of Con-ection, Administrative Directive 4.2A (effective March 22, 2013). That administrative directive provided that risk reduction credit is "[t]ime awarded at the discretion of the [respondent] or designee at the rate of five (5) days per month for participation in programs or activities, good conduct and obedience to departmental rules, unit and/or program rules in accordance with RREC guidelines as determined by the [respondent] or designee." Administrative Directive 4.2A (3) (D) (effective March 22, 2013).

Pursuant to the 2013 administrative directive, once an incarcerated individual signs an offender accountability plan and adheres to the rules and regulations, RREC is calculated and awarded via the department’s computer system at a rate of five days per month. The petitioner earned RREC at the rate of five days per month under the 2013 administrative directive.

On February 1, 2016, the 2013 administrative directive was amended. That amendment, which is reflected in administrative directive 4.2A (2016 administrative directive), provides that "[a]n inmate may earn RREC at the rate of three (3) days per month as an Overall Level 4 inmate, four (4) days per month as an Overall Level 2 or 3 inmate and five (5) days per month as an Overall Level 1 inmate or if the inmate is being supervised in the community on early release supervision throughout the sentenced portion of the inmate’s incarceration." Conn. Dept. of Correction, Administrative Directive 4.2A (6) (effective February 1, 2016).

The petitioner had been earning five days of RREC under the 2013 administrative directive. Under the 2016 administrative directive, the petitioner began earning RREC at a rate of three days per month due to his risk classification as an overall level 4 inmate. On February 1, 2018, the petitioner’s classification changed to an overall level 3 inmate, thereby allowing him to earn RREC at a rate of four days per month. The petitioner earned approximately forty-six fewer days of RREC than he would have received from March 1, 2016, to February 1, 2018, if the 2013 administrative directive had been applied to him during that time period. From February 1, 2018, until the time of the habeas proceedings, the petitioner earned approximately fifty-eight fewer days of RREC pursuant to the 2016 administrative directive.

Accordingly, by virtue of the application of the 2016 administrative directive to the petitioner, he earned approximately 104 fewer days of RREC from the time the 2016 administrative directive was applied to him until the time of the habeas proceedings than he otherwise would have under the 2013 administrative directive. He will remain ineligible to earn five days of RREC per month, which he had been earning pursuant to the 2013 administrative directive, until and unless he reaches the classification of an overall level 1 inmate.

On December 21, 2020, the petitioner filed a petition for a writ of habeas corpus, alleging that "the retroactive application of this [2016] administrative [directive] violates the prohibition against ex post facto laws contained in the [United States] constitution because it dictates a longer period of incarceration and postpones his parole eligibility date to a date later than was originally projected."² The petitioner filed a motion for summary judgment on March 25, 2022, arguing that no genuine issue of material fact existed that the application to him of the 2016 administrative directive violated the ex post facto clause and that he was entitled to judgment as a matter of law.

In response, the respondent filed a motion to dismiss on April 29, 2022, pursuant to Practice Book § 23-29 (1) and (2), arguing that the undisputed facts do not support the petitioner’s claim for relief and that, because those undisputed facts demonstrate that the 2016 administrative directive is not a law for purposes of the ex post facto clause, the petitioner failed to state a claim upon which habeas relief can be granted. The respondent also argued that the habeas court lacked subject matter jurisdiction over the petition.

On December 20, 2022, the habeas court issued a memorandum of decision granting the petitioner’s motion for summary judgment and denying the respondent’s motion to dismiss. The court reasoned that the 2016 administrative directive is a law within the meaning of the ex post facto clause and that the application of the 2016 administrative directive to the petitioner violated the ex post facto clause because it was retroactively applied to the petitioner to create a sufficient risk of prolonging his incarceration. The court determined that no genuine issue of material fact existed and that the petitioner was entitled to judgment as a matter of law. It therefore granted the petitioner’s motion for summary judgment and denied the respondent’s motion to dismiss. The respondent subsequently filed a petition for certification to appeal, which the habeas court granted. This appeal followed.

Our review of the respondent’s claims that the habeas court improperly granted the petitioner’s motion for summary judgment and denied the respondent’s motion to dismiss are subject to plenary review. "On review from the granting of a motion for summary judgment, our task is to determine whether the court correctly determined that the moving party was entitled, as a matter of law, to summary judgment on the basis of the absence of any genuine issues of material fact requiring a trial. Because this inquiry requires a legal determination, our review is plenary." Lawrence v. Commissioner of Correction, 125 Conn. App. 759, 762, 9 A.3d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011); see also Practice Book § 23-37.

Regarding the court’s denial of the respondent’s motion to dismiss, Practice Book § 23-29 provides in relevant part that "[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction; [or] (2) the petition, or a count thereof, fails to state a claim upon which...