Fernandez v. Commissioner of Correction
The collateral consequences of an expired conviction do not render a petitioner in custody under C.G.S. §52-466. In 2001, Luis Fernandez was sentenced to an effective term of 28 years of incarceration following his conviction on several drug related offenses. In 2002, he pleaded guilty to assault in the second degree and was sentenced to one year imprisonment concurrent with his existing sentence. He finished serving the assault sentence in 2003. In 2008, Fernandez learned that no parole hearing was scheduled and his assault conviction forced his parole eligibility date to be based on 85 percent of his 28 year sentence rather than 50 percent. He filed a petition for a writ of habeas corpus challenging his assault conviction. The habeas court dismissed the petition for lack of jurisdiction because the petitioner was not in custody on the assault conviction under C.G.S. §52-466. Fernandez appealed claiming that he was in custody on his assault conviction because he suffered from a present restraint, namely, the noneligibility of review for parole, due to the assault conviction. Alternately, he claimed that the exception to the custody requirement in the 1995 U.S. Supreme Court case of Garlotte v. Fordice applied because the assault conviction sentence merged with the drug conviction sentence to create a continuous stream of custody and invalidation of the assault conviction would advance his parole eligibility date. The Appellate Court affirmed the judgment. The custody requirement in C.G.S. §52-466(a)(1) is jurisdictional. The fact that concurrent sentences are merged for the purpose of calculating the incarceration period did not lead to the conclusion that a shorter sentence, running concurrent with a longer sentence, has not expired until the longer sentence ends. Parole eligibility does not affect a term of incarceration. The change in parole eligibility was a collateral consequence of the assault conviction. The habeas court properly determined that the collateral consequences of the expired conviction were insufficient to render the petitioner in custody for the assault conviction. The Garlotte exception to custody applicable to consecutive sentences did not apply. Concurrent sentences do not create a continuous stream of custody because they do not extend the incarceration term. A reversal of the assault conviction could not shorten the petitioner's term of incarceration. The effective term of imprisonment would remain 28 years.