Whistnant v. Comm'r of Corr.

JERRY LEWIS WHISTNANT v. COMMISSIONER OF CORRECTION

AC 42894

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued March 12, 2020

August 4, 2020

DiPentima, C. J., and Moll and Flynn, Js.^*

Syllabus

The petitioner, who had been convicted on a guilty plea in 2009, of the crime of robbery in the first degree in connection with a robbery he committed in 2008, sought a writ of habeas corpus, claiming, inter alia, a violation of the ex post facto clause of the United States constitution. In 2011, the legislature enacted a statute (§ 18-98e) that permitted certain inmates, including the petitioner, to earn risk reduction credit toward the reduction of their sentences, at the discretion of the respondent, the Commissioner of Correction, and amended the statute (§ 54-125a (b) (2)) governing parole eligibility to permit risk reduction credit to be applied to advance the parole eligibility date of inmates convicted of certain violent offenses. In 2013, the legislature enacted an amendment (P.A. 13-3, § 59) to § 54-125a (b) (2) that removed the language that permitted the risk reduction credit earned under § 18-98e to advance the parole eligibility date of violent offenders. The petitioner claimed, inter alia, that the 2013 amendment, as applied retroactively to him, violated the ex post facto clause of the federal constitution. The habeas court rendered judgment declining to issue a writ of habeas corpus pursuant to the applicable rule of practice (§ 23-24 (a) (1)) on the ground that it lacked subject matter jurisdiction. Thereafter, the habeas court denied the petitioner's petition for certification to appeal, and the petitioner appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for certification to appeal, as the petitioner failed to demonstrate that his claims were debatable among jurists of reason, that a court could have resolved the issues in a different manner or that the questions were adequate to deserve encouragement to proceed further.

2. The petitioner's claim that the habeas court improperly failed to conduct a hearing before declining to issue a writ of habeas corpus under Practice Book § 23-24 (a) (1) was outside the scope of this court's appellate review; pursuant to the applicable statute (§ 52-470 (g)), this court's review was confined to the issues presented in the petitioner's petition for certification to appeal, which incorporated two grounds for appeal, and, because neither ground indicated that the petitioner sought to challenge the habeas court's judgment on the basis that the court did not conduct a hearing, review pursuant to State v. Golding (213 Conn. 233) was unavailable because permitting a petitioner, in an appeal from a habeas judgment following the denial of a petition for certification to appeal, to seek Golding review of a claim that was not raised in, or incorporated into, the petition for certification to appeal would circumvent the requirements of § 52-470 (g) and undermine the goals that the legislature sought to achieve in enacting it.

3. The petitioner could not prevail on his claim that the habeas court improperly concluded that it lacked subject matter over the claims in his habeas petition:

a. The habeas court lacked subject matter jurisdiction over the petitioner's claim that the retroactive application of the 2013 amendment to § 54-125a (b) (2) to him violated the ex post facto clause of the federal constitution, the petitioner having failed to raise a cognizable ex post facto claim in the habeas petition; the petitioner made no claim that legislation regarding eligibility for parole consideration became more onerous after the date of his criminal behavior but, rather, claimed that new legislation enacted in 2011, after his criminal conduct, conferred a benefit on him that was taken away in 2013, which did not implicate the ex post facto prohibition because the changes that occurred between 2011 and 2013 had no bearing on the punishment to which the petitioner's criminal conduct exposed him when he committed the robbery in 2008, and, with regard to parole eligibility, the 2013 amendment merely returned the petitioner to the same position that he was in at the time of his offense.

b. The habeas court lacked subject matter jurisdiction over the petitioner's claim that the retroactive application of the 2013 amendment to § 54-125a (b) (2) to him violated his right to due process, as the petitioner lacked a vested liberty interest in the risk reduction credit that he had earned that, following the enactment of the 2013 amendment, was no longer being applied to advance his parole eligibility date.

Procedural History

Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Bhatt, J., rendered judgment declining to issue a writ of habeas corpus; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).

Opinion

MOLL, J. The petitioner, Jerry Lewis Whistnant, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court declining to issue a writ of habeas corpus for lack of subject matter jurisdiction pursuant to Practice Book § 23-24 (a) (1).¹ On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal, (2) declined to issue the writ of habeas corpus pursuant to § 23-24 (a) (1) without conducting a hearing, and (3) concluded that it lacked subject matter jurisdiction over the claims raised in his petition for a writ of habeas corpus. We conclude that the habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal, and, therefore, we dismiss the appeal.

The following facts, procedural history, and statutory history are relevant to our disposition of the appeal. On September 27, 2008, the petitioner was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).² On May 8, 2009, after the petitioner pleaded guilty to the charge, the trial court, Alexander, J., sentenced him to fifteen years of incarceration, followed by three years of special parole. The petitioner did not appeal from the judgment of conviction. As a result of his conviction, the petitioner remains in the custody of the respondent, the Commissioner of Correction.

At the time that the petitioner committed the robbery on September 27, 2008, General Statutes (Rev. to 2007) § 54-125a (b) (2), as amended during a special session in January, 2008; see Public Acts, Spec. Sess., January, 2008, No. 08-1, § 5; provided in relevant part: "A person convicted of . . . (B) an offense, other than [certain parole ineligible offenses], where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed. . . ."³ The crime of robbery in the first degree fell within this class of violent offenses. See Holliday v. Commissioner of Correction, 184 Conn. App. 228, 231 n.2, 194 A.3d 867 (2018) ("robbery in the first degree . . . involves the [use] or threaten[ed] . . . immediate use of physical force upon another person" (internal quotation marks omitted)), cert. granted on other grounds, 335 Conn. 901, 225 A.3d 960 (2020). Therefore, at the time that he had committed the robbery, the petitioner was ineligible for parole until he had served no less than 85 percent of his sentence.

In 2011, about three years after his commission of the robbery and long after his May 8, 2009 date of conviction, while the petitioner was incarcerated, thelegislature enacted No. 11-51, § 22, of the 2011 Public Acts (P.A. 11-51), later codified in General Statutes § 18-98e. Pursuant to § 18-98e (a), certain inmates, including the petitioner, convicted of crimes committed on or after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the [respondent]," for certain positive, statutorily described behavior. The respondent has the discretion to "cause the loss of" such credit, including credit yet to be earned, for good cause. General Statutes § 18-98e (b). Additionally, in 2011, the legislature amended § 54-125a (b) (2) to provide in relevant part: "A person convicted of . . . (B) an offense, other than [certain parole ineligible offenses], where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e." (Emphasis added.) General Statutes (Rev. to 2011) § 54-125a (b) (2), as amended by Public Acts 2011, No. 11-51, § 25. Thus, following the enactment of § 18-98e and the 2011 amendment to § 54-125a (b) (2), the petitioner was eligible to earn risk reduction credit to advance both the end date of his sentence and his parole eligibility date. See Perez v. Commissioner of Correction, 326 Conn. 357, 364, 163 A.3d 597 (2017).

In 2013, the legislature enacted No. 13-3, § 59, of the 2013 Public Acts (P.A. 13-3), which amended, inter alia, § 54-125a (b) (2) by removing the language permitting risk reduction credit earned under § 18-98e to advance the parole eligibility...