47 Conn. App. 752 | Conn. App. Ct. | 1998
Opinion
The respondent commissioner of correction appeals from the judgment of the habeas court granting a writ of habeas corpus to the petitioner, Carlos M. Rivera. The court ruled that the respondent did not apply the petitioner’s good time correctly to his multiple sentences and ordered the respondent to credit the petitioner with ninety days of good time credit and nineteen days of jail good time credit. The court then denied the respondent’s petition for certification to appeal. We find that the court did not abuse its discretion in denying the respondent’s timely request for certification to appeal.
The facts are not in dispute. The petitioner has been in the custody of the commissioner of correction since June 17, 1989, when he was arrested and held in lieu of bond on a charge of a violation of General Statutes
The petitioner brought this habeas petition because the respondent, in calculating the petitioner’s good time credit, did not give the petitioner nineteen days of presentence good time and ninety days of good time by failing to construe the multiple sentences as one continuous term for the purposes of calculating good time. The petitioner did not receive jail time good time credit or the good time credits earned on the three year sentence, on the eight year sentence or on the one year consecutive sentence.
The court agreed with the petitioner that on the basis of General Statutes § 18-7 and Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994), the petitioner’s good time credits under sentence no. 1 should be credited to his overall effective sentence of nine years. The court granted the habeas
We must first decide if the habeas court abused its discretion in denying the respondent certification to appeal. “In Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995), the Supreme Court set the standard for deciding abuse of discretion on the issue of certification in such a case. We recognize that [i]n enacting [General Statutes] § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994) . A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Simms v. Warden, supra, 616, quoting Lozada v. Deeds, supra, 432. Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. Simms v. Warden, supra, 616. . . . Copas v. Commissioner of Correction, supra, 150-51.” (Internal quotation marks omitted.) Graham v. Commissioner of Correction, 39 Conn. App. 473, 476, 664 A.2d 1207, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995).
The respondent has not sustained his burden of persuasion that the court’s denial of his certification to appeal was a clear abuse of discretion or that an injustice has been done. Hinton v. Commissioner of Correction, 43 Conn. App. 549, 551, 684 A.2d 733 (1996), cert.
We find that none of the three criteria of Lozada v. Deeds, supra, 498 U.S. 431-32, has been met and, therefore, the court did not abuse its discretion in denying the respondent certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”
General Statutes § 18-98d provides: “Presentence confinement credit for confinement resulting from an offense committed on or after July 1, 1981. (a) Any person who is confined to a community correctional center or a
“(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.
“(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) in excess of the sentence actually imposed.”