WILSON v. WARDEN, 34 Conn. App. 503 (1994)

642 A.2d 724

(12740)Appellate Court of Connecticut

LAVERY, FREEDMAN and SPEAR, Js.

The petitioner, who had been sentenced to three terms of imprisonment, two of which were concurrent and one consecutive, sought a writ of habeas corpus challenging the respondent warden’s calculation of his good time credits. He claimed that his concurrent sentences should have been aggregated so as to entitle him to the enhanced good conduct credit provided by statute (18-7a) to inmates serving the sixth and subsequent years of their sentences. The habeas court granted the writ, and the respondent, on the granting of certification, appealed to this court. Held that the habeas court correctly awarded the petitioner enhanced good time under 18-7a; the plain language of the statute (18-7) applicable to prisoners serving sentences on more than one conviction requires that all multiple sentences be aggregated for the purpose of calculating good time credit.

Argued February 24, 1994

Decision released May 24, 1994

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.; judgment granting the petition, from which the respondent, on the granting of certification, appealed to this court. Affirmed.

Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

Paula Mangini Montonye, assistant public defender, for the appellee (petitioner).

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 time[1] credit by failing to aggregate concurrent

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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]

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Inmates 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

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respondent 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

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(Rev. of 1888) 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 `[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 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.

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Fifth, 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. See 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.

Sixth, the respondent further contrasts the merging of concurrent sentences with the aggregation of consecutive sentences and concludes that 53a-38 (b) limits the broad language of 18-7 to consecutive sentences. We do not agree. The respondent’s conclusion would render 18-7 superfluous: consecutive sentences would

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be aggregated under 53a-38 (b)(2) making 18-7
unnecessary. Statutes should not be construed so that words, phrases or clauses are rendered meaningless. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982).

Seventh, the respondent’s interpretation of 18-7
would yield bizarre results. For example, a five year sentence followed by a five year concurrent sentence imposed on the last day of the prior term would result in an inmate’s serving ten years in jail without receiving enhanced good time credit. Conversely, the same inmate sentenced to two, five year consecutive sentences would receive enhanced good time credit. Statutes should be construed to avoid absurd consequences and bizarre results. Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989).

In sum, the plain language of 18-7 requires that all multiple sentences be aggregated for purposes of calculating good time credit. We must now apply this conclusion to this case: the petitioner’s two concurrent terms are to be considered one continuous term of imprisonment. Thus, he earned enhanced good time credit from the date of the five year anniversary of his first conviction. The remaining question is at what rate should the enhanced good time credit be calculated?

If 18-7 applies, the petitioner should have received seven and one-half days per month. If, however, 18-7a
applies, the trial court properly awarded fifteen days per month. The petitioner meets the requirements for application of both statutes. Application of 18-7 alone would violate the provisions of 18-7a because an inmate, as here, sentenced after October 1, 1976, and before July 1, 1981, would not be granted fifteen days per month. Conversely, application of 18-7a alone would satisfy both statutes: the fifteen days per month would include the seven and one-half days required by

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18-7. Therefore, we conclude that the trial court correctly awarded the petitioner enhanced good time under 18-7a.

The judgment is affirmed.

In this opinion the other judges concurred.