author: PALMER, J.

text:
    WILLIAM A. CONNELLY v. COMMISSIONER OF CORRECTION
    (SC 16277)
    McDonald, C. J., and Norcott, Katz, Palmer and Sullivan, Js.

      Argued November 30, 2000
    officially released October 9, 2001

      William A. Connelly, pro se, the appellant (petitioner).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).

       The listing of justices reflects their seniority status on this court as of the date of argument.
      Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion officially was released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

   Opinion

PALMER, J.

The sole issue raised by this appeal is whether the habeas court properly rejected the claim of the petitioner, William A. Connelly, that the forty year prison sentence he received following his conviction of two counts of kidnapping in the second degree in violation of General Statutes (Rev. to 1989) § SSa-94 and two counts of assault in the second degree in violation General Statutes (Rev. to 1989) § 53a-60 was the product of judicial vindictiveness in violation of his constitutional right to due process. We affirm the judgment of the habeas court.

The relevant facts and unusual procedural history of this case are set forth in State v. Connelly, 46 Conn. App. 486, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998), in which the Appellate Court affirmed the petitioner’s kidnapping and assault convictions. Id., 513. “On November 10, 1989, the [petitioner] and his brother Brian Connelly resided at their mother’s house in the town of Newington. Their mother, at that time, was hospitalized. The [petitioner’s] other brothers, Timothy Connelly and Edward Connelly, and sister, Maureen Briggs, thought that their mother should be placed in a nursing home. The [petitioner] disagreed.

“That morning, Edward and Timothy arrived at their mother’s house to clean out a room that Timothy had been using as an office. While they were moving the room’s contents, the mail arrived, and Edward brought it in. The [petitioner] accused Edward of taking mail that did not belong to him because the [petitioner] believed that an envelope containing a large check had arrived for Brian. Edward and Timothy were in a bedroom. From the hallway, the [petitioner] argued with them about the mail. He then pulled a gun from his clothing and fired a shot, which struck no one and lodged in the back wall of the bedroom. The [petitioner] entered the bedroom, locked the door, and ordered Edward and Timothy to get down on the floor. He asked Brian, who was in the hallway, to telephone the Federal Bureau of Investigation (FBI). When Brian refused, the [petitioner] tried to place the call himself but instead reached the Newington police department.

“Newington police officer Michael Tkac responded to the telephone call. The [petitioner] told Tkac that he was holding Edward and Timothy for mail fraud, and that he would release them only to the FBI. Other officers, including a special weapons and tactics police team, arrived at the house. The [petitioner] demanded that the FBI, Attorney Edward Daly, and a court reporter arrive by 1 p.m. or else he would shoot Edward. At 12:50 p.m., the FBI had not arrived, and the [petitioner] shot Edward in the wrist, breaking a bone. The [petitioner] set another deadline of 3 p.m., threatening to shoot Timothy if the persons he requested had not arrived. The [petitioner] asked for certain documents from his briefcase, which were passed under the door to him. At approximately 2:50 p.m., the [petitioner] shot Timothy in the hand, injuring bones and ligaments.” Id., 488-89.

“[0]n April 20, 1990, in a trial to the court, Dunn, J., the [petitioner] was found not guilty by reason of [lack of capacity due to mental disease or defect] of . . . two counts of kidnapping in the second degree and two counts of assault in the second degree arising out of the . . . incident. He was then committed [by the trial court, Holzberg, J.] to the custody of the commissioner of mental health . . . for a period of ten years, subject to periodic [review] by the psychiatric security review board. The [petitioner] did not appeal from either . . . [the judgment of] acquittal [by reason of lack of capacity due to mental disease or defect] or his commitment to the custody of the commissioner of mental health.” (Citation omitted.) Id., 490.

In 1993, the petitioner filed a petition for a writ of habeas corpus seeking, inter alia: (1) to vacate the trial court’s judgment of acquittal by reason of lack of capacity due to mental disease or defect and to have the case remanded to the trial court for further proceedings; and (2) to be released from the custody of the commissioner of mental health and to be transferred to the custody of the commissioner of correction. Id. “The [petitioner] claimed in his habeas petition that his confinement was illegal because, among other things ... he was not canvassed regarding the waiver of his right to a jury trial. The record in the habeas proceeding reveals that his [habeas] attorney cautioned him that, if he were to prevail on his habeas petition, he would be exposed to incarceration by the commissioner of correction. The habeas court, Higgins, J., on August 16,1994, pursuant to General Statutes § 52-493, ordered that the [trial court’s] judgment of acquittal by reason of [lack of capacity due to mental disease or defect] be vacated and issued a writ of habeas corpus. ... In affording the [petitioner] relief, the habeas court relied on [his] claim that his constitutional right to a trial by jury was violated because he had not waived his right to a jury trial on the record.” Id., 490-91.

In January, 1995, the petitioner was retried on the same charges of which he previously had been acquitted by reason of lack of capacity due to mental disease or defect, namely two counts of second degree kidnapping and two counts of second degree assault. Id., 492. A jury found the petitioner guilty of all charges, and the trial court, Scheinblum, J., rendered judgment in accordance with the jury’s verdict and sentenced the petitioner to a total effective sentence of forty years imprisonment. On appeal, the Appellate Court affirmed the second trial court’s judgment of conviction. Id., 513.*

Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he claimed that the second trial court had imposed a forty year prison sentence in retaliation for his successful habeas challenge to his insanity acquittal and attendant period of commitment. In support of his claim, the petitioner relied primarily on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and its progeny, which hold that, in some circumstances, an increased sentence after retrial for the same charges gives rise to a rebuttable presumption of judicial vindictiveness. See, e.g., Wasman v. United States, 468 U.S. 559, 564-65, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984). The petitioner requested that his second sentence of forty years be vacated and the original sentence of ten years be reinstated. The habeas court, Hon. Thomas H. Corrigan, judge trial referee, rejected the petitioner’s claim and dismissed the petitioner’s habeas petition, concluding that a presumption of vindictiveness is not warranted when the second sentence follows an insanity acquittal and period of commitment, as in the present case, rather than a conviction and sentence of imprisonment. Judge Corrigan also concluded that, because Judge Scheinblum had articulated “logical, nonvindictive reasons for the [forty year] sentence,” the petitioner had failed to establish that that sentence was the product of actual vindictiveness. The petitioner appealed from the judgment dismissing his habeas petition to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal, the petitioner renews his constitutional due process claim. We conclude that the petitioner’s claim is without merit and, therefore, affirm the judgment of the habeas court.

We begin our analysis of the petitioner’s claim with a review of the applicable precedent. In North Carolina v. Pearce, supra, 395 U.S. 711, “the United States Supreme Court examined the constitutional constraints imposed on a court which metes out a greater sentence upon retrial than that which the defendant originally received. After holding that neither the equal protection clause nor the double jeopardy provision imposes an absolute bar to a harsher sentence upon reconviction, the court considered the impact of the due process clause on such a position. Id., 723-26. Where a conviction has been set aside, the action of a court in imposing a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a flagrant violation of due process of law. Id., 723-24. Due process requires that vindictiveness must not [play a part in] resentencing that results from a successful attack on a defendant’s conviction. Id., 725. A defendant’s fear of such vindictive behavior may unconstitutionally deter the exercise of the right to appeal or to attack collaterally a conviction, and thus, due process requires that a defendant be free from such apprehension. Id. To ensure that retaliatory motivation does not [play a part in] the resentencing process, whenever a court imposes a harsher sentence following a new trial, the court must state its reasons upon the record. Id., 726.

“The United States Supreme Court has subsequently examined the applicability of the Pearce presumption of vindictiveness. See, e.g., Texas v. McCullough, 475 U.S. 134, [136, 138, 141] 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, [supra, 468 U.S. 569-70] (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing and sentencing after retrial rebuts presumption); United States v. Goodwin, 457 U.S. 368, [380-81], 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (pretrial decision by prosecutor to modify charges does not warrant presumption of prosecutorial vindictiveness in pretrial setting); Bordenkircher v. Hayes, 434 U.S. 357, [358, 365], 98 S. Ct. 663, 54 L. Ed. 2d 604 ... (1978) (prosecutor’s action in carrying through on statement made during plea negotiations to bring additional charges against defendant if he refused to plead guilty to offense originally charged did not violate due process clause); Blackledge v. Perry, [417 U.S. 21, 28-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)] (prosecutor [violated due process clause when he brought] more serious charge against defendant prior to trial de novo in response to defendant’s exercise of statutory right to appeal); Chaffin v. Stynchcombe, 412 U.S. 17, [28], 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) ([when jury charged with responsibility of] resentencing [defendant] . . . potential for abuse in sentencing is minimal [and] Pearce does not apply); Colten v. Kentucky, 407 U.S. 104, [112, 116], 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (prophylactic rule announced in Pearce not appropriate in context of two-tier system which allowed for trial de novo in court of general criminal jurisdiction following trial or guilty plea in an inferior court; likelihood of vindictiveness not present).

“The decision in . . . Pearce . . . was only premised on the apparent need to guard against vindictiveness in the resentencing process. . . . [I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right ... it [is] necessary to presume an improper vindictive motive. Given the severity of such a presumption, however— which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct—[the presumption applies] only in cases in which a reasonable likelihood of vindictiveness exists. . . . The Pearce requirements thus do not apply in every case [in which] a convicted defendant receives a higher sentence on retrial. Like other judicially created means of effectuating the rights secured by the [United States constitution] . . . [the United States Supreme Court has] restricted application of Pearce to areas where its objectives are thought most efficaciously served .... Texas v. McCullough, supra, [475 U.S.] 138.

“The violation of due process [found in cases] such as Pearce and Perry does not arise from the possibility that a defendant may be discouraged from exercising legal rights, but instead from the danger that the State might be retaliating against the accused for lawfully attacking his conviction. Bordenkircher v. Hayes, supra, [434 U.S.] 363. [Wjhere the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness. . . .

“The United States Supreme Court recently revisited this issue in Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). Smith clarified the scope of the Pearce rule, stating that [w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, [the court’s] subsequent cases have made clear that its presumption of vindictiveness do[es] not apply in every case [in which] a convicted defendant receives a higher sentence on retrial. . . . Id., 799. The court further explained that the application of the Pearce rule is limited to circumstances where its objectives are thought most efficaciously served, [namely] those [circumstances] in which there is a reasonable likelihood . . . that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. ... Id. On the basis of this conclusion, the court reasoned that when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to . . . vindictiveness on the part of the sentencing judge. . . ,

“[Accordingly] there is no basis for a presumption of vindictiveness where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea .... [Id.], 801-803.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Coleman, 242 Conn. 523, 535-39, 700 A.2d 14 (1997).

In light of the foregoing precedent, the petitioner can prevail on his claim of presumptive judicial vindictiveness under Pearce and its progeny only if all of the following conditions are met: (1) the sentence he received following his second trial is greater than the sentence he received after his first trial; (2) the circumstances culminating in the greater sentence give rise to a reasonable likelihood that the sentence is the product of actual vindictiveness on the part of the sentencing judge; and (3) that judge failed to articulate reasons sufficient to justify the greater sentence. We agree with Judge Corrigan that the petitioner has failed to meet this burden. We also conclude that Judge Corrigan properly determined that the petitioner had failed to establish that his sentence was the product of actual vindictiveness.

“[B]efore undertaking a Pearce analysis, we must determine whether the [second] sentence imposed . . . was, in fact, greater than the sentence originally imposed. ... In determining whether the sentence was more severe, [i]t is the actual effect of the new sentence as a whole on the total amount of punishment lawfully imposed by [the judge] on the defendant . . . which is the relevant inquiry .... Further [more], [i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact [on the defendant].” (Citations omitted; internal quotation marks omitted.) State v. Faria, 254 Conn. 613, 622-23, 758 A.2d 348 (2000).

As Pearce and its progeny make clear, the petitioner cannot prevail on his judicial vindictiveness claim unless he makes a threshold showing that the forty year sentence imposed by Judge Scheinblum is greater than the sentence that he had received following his first trial. In common parlance, the petitioner’s forty year sentence reasonably may be considered “greater,” or more severe, than the ten year period of commitment imposed after the petitioner’s first trial. For purposes of the comparison required by Pearce, however, equating a term of imprisonment with a period of commitment is like comparing apples with oranges. A commitment following an insanity acquittal is not a sanction, and its purpose, therefore, is entirely different from that of a criminal sentence. “As a general matter, the confinement of insanity acquittees, although resulting initially from an adjudication in the criminal justice system, is not punishment for a crime. The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. . . . As he was not convicted, he may not be punished. His confinement rests on his continuing illness and dangerousness. Jones v. United States, 463 U.S. 354, 368-69, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983).” (Internal quotation marks omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 683-84, 578 A.2d 1025 (1990). Thus, unlike a defendant who has been convicted of a crime, a defendant who has been found not guilty by reason of lack of capacity due to mental disease or defect is not criminally responsible for his or her unlawful conduct and, consequently, certain important goals of sentencing, including punishment and deterrence, are inapplicable. See Jones v. United States, supra, 369 (“There simply is no necessary correlation between severity of the offense and length of time necessary for recovery. The length of the acquittee’s hypothetical criminal sentence therefore is irrelevant to the purposes of his commitment.”) Therefore, the considerations that motivated Judge Holzberg to impose a ten year period of commitment following the petitioner’s insanity acquittal are wholly different from the factors considered by Judge Scheinblum when he imposed the forty year sentence in connection with the petitioner’s judgment of conviction. In light of this “fundamental distinction between . . . incarceration pursuant to a criminal sentence and . . . commitment following an insanity acquittal”; Copeland v. Warden, 225 Conn. 46, 49, 621 A.2d 1311 (1993); it is difficult, if not impossible, meaningfully to compare the two as contemplated by Pearce because, in such circumstances, “a sentence increase cannot truly be said to have taken place.” (Internal quotation marks omitted.) Texas v. McCullough, supra, 475 U.S. 140. Therefore, it is highly questionable whether the petitioner’s successful challenge to his insanity acquittal provides a proper predicate for application of the Pearce rule.

Even if we assume, for purposes of the comparison mandated by Pearce, that the sentence imposed on the petitioner after his second trial is greater than the period of commitment he received following his insanity acquittal, the petitioner has not demonstrated that the Pearce presumption applies to the present case. When a different judge presides at the second trial, as in the present case, the likelihood of vindictiveness is minimal: that judge has “no personal stake in the prior conviction and no motivation to engage in self-vindication”; Chaffin v. Stynchcombe, supra, 412 U.S. 27; because “it is not the court that is asked to do over what it thought it had already done correctly.” Golten v. Kentucky, supra, 407 U.S. 116-17; see also State v. Coleman, supra, 242 Conn. 544 n.24 (when different judge imposes subsequent sentence, probability that sentence will be viewed as vindictive is substantially reduced). Thus, the United States Supreme Court has stated that the Pearce “presumption is . . . inapplicable [when] different sentencers [have] assessed the varying sentences that [the defendant] receive[s]. . . . [W]hen different sentencers are involved, [i]t may often be that the [second sentencer] will impose a punishment more severe than that received from the [first]. But it no more follows that such a sentence is a vindictive penalty for seeking a [new] trial than that the [first sentencer] imposed a lenient penalty.” (Citation omitted; internal quotation marks omitted.) Texas v. McCullough, supra, 475 U.S. 140, quoting Colten v. Kentucky, supra, 117. Therefore, as long as the record reflects a reasonable, nonvindictive basis for the greater sentence, there is no reason to presume that it is the product of a retaliatory motive. See Texas v. McCullough, supra, 140. Finally, “it is not necessary that the second sentencing judge rely on and provide facts not available at the time of the first sentence to support the more severe sentence”; Macomber v. Hannigan, 15 F.3d 155, 157 (10th Cir. 1994); see Rock v. Zimmerman, 959 F.2d 1237, 1257 (3d Cir.), cert. denied, 505 U.S. 1222, 112 S. Ct. 3036, 120 L. Ed. 2d 905 (1992) (Pearce presumption is inapplicable when “the second sentence is imposed by a different sentencer and the record provides an affirmative assurance that the harsher sentence reflects simply a fresh look at the facts and an independent exercise of discretion”); Gauntlett v. Kelley, 849 F.2d 213, 217 (6th Cir. 1988) (when “resentencing judge [relies] on objective information . . . justifying the increased sentence . . . the information [need] not relate to conduct of the defendant that occurred after the initial sentence” [citation omitted; internal quotation marks omitted]); because “trial judges must be accorded broad discretion in sentencing . . . .” Texas v. McCullough, supra, 140.

Although the defendant in McCullough originally was convicted and sentenced by a jury and, following a retrial before a second jury, was found guilty and sentenced by the trial judge; id., 135-36; the court’s reasoning is no less applicable to the facts of the present case: when a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindictive reasons for the sentence, there simply is no sound basis to presume that that sentence is the product of judicial vindictiveness. Thus, courts uniformly have con-eluded, under the federal constitution, that a presumption of vindictiveness is not warranted in such circumstances. See, e.g., Macomber v. Hannigan, supra, 15 F.3d 157; United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993); United States v. Cheek, 3 F.3d 1057, 1064 (7th Cir. 1993); Rock v. Zimmerman, supra, 959 F.2d 1257; United States v. Perez, 904 F.2d 142, 146 (2d Cir. 1990); Gauntlett v. Kelley, supra, 849 F.2d 217; Commonwealth v. Hyatt, 419 Mass. 815, 821, 647 N.E.2d 1168 (1995); State v. Hurlburt, 135 N.H. 143, 147, 603 A.2d 493 (1991); People v. Young, 94 N.Y.2d 171, 178, 723 N.E.2d 58, 701 N.Y.S.2d 309 (1999); see also Hurlburt v. Cunningham, 996 F.2d 1273, 1274 n.2 (1st Cir. 1993) (“research indicates that decisions by the [federal] circuit courts of appeals after McCullough have uniformly held that the Pearce presumption does not apply to the two-sentencer situation”).

The record of the sentencing hearing before Judge Scheinblum reflects a wholly logical, nonvindictive basis for the forty year sentence. Immediately before imposing sentence, Judge Scheinblum observed that, although he would have preferred that the petitioner receive psychiatric treatment, he had no choice but to incarcerate the petitioner because the evidence adduced at trial indicated that he is a dangerous individual who steadfastly has refused psychiatric help notwithstanding his lengthy period of commitment at Whiting Forensic Institute (WTúting) in Middletown. Furthermore, the presentence investigation report prepared in connection with the petitioner’s sentencing, which Judge Scheinblum expressly stated that he had read, fully supports Judge Scheinblum’s conclusions. That report states in relevant part: “[The petitioner] has refused all attempts of rehabilitation offered by the [s]tate .... His psychiatric condition that resulted in the [kidnapping and assault] offensefs] in 1989 is most probably the same today .... [The petitioner] continues to pose a real potential threat toward any target of his paranoia. Due to the serious nature of the offenses for which he was convicted and his outright refusal [of] mental health assistance, one can only consider the safety of the victims, other family members [and] any other individual involved with [the petitioner].” The report also indicated that several members of the petitioner’s family were afraid of the petitioner and that they would relocate if and when the petitioner was released from custody. Finally, the record of the sentencing hearing indicates that, although the petitioner regretted the harm that he had caused his victims, he nevertheless believed that he was justified in acting as he did and, further, that his actions were precipitated by the victims’ wrongdoing.

Thus, at the time of sentencing, the petitioner, for the first time, stood convicted of several serious crimes of violence. The facts adduced at the sentencing hearing indicated that the petitioner: (1) was unwilling to accept responsibility for his misconduct; (2) lacked remorse for the crimes; (3) refused to acknowledge his mental illness; (4) rejected all attempts to treat that illness; and (5) represented a danger to the victims and others as a result of his untreated psychiatric condition. These facts provide a sound and logical basis for the prison term imposed by Judge Scheinblum. Finally, the foregoing facts strongly support Judge Corrigan’s conclusion that the petitioner failed to establish actual vindictiveness. The petitioner, moreover, adduced no evidence to suggest that the forty year sentence was imposed in retaliation for his successful attack on his insanity acquittal, or for any other improper reason. In the absence of any such evidence, Judge Corrigan properly rejected the petitioner’s claim of actual vindictiveness.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-94 provides in relevant part: “(a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”
      “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).

       General Statutes (Rev. to 1989) § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical iryury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       The due process clause of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       See General Statutes § 53a-13 (a) (“[i]n any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law”). Simply for ease of reference, we use the terms “lack of capacity due to mental disease or defect” and “insanity” interchangeably throughout this opinion.

       The petitioner was confined at the Whiting Forensic Institute in Middletown.

       “A person committed to the custody of the commissioner of mental health, after a trial in which a verdict of not guilty by reason of [lack of capacity due to] mental disease or defect has been [returned], may appeal from the commitment order. General Statutes § 17a-597; State v. Warren, 169 Conn. 207, 363 A.2d 91 (1975).” State v. Connelly, supra, 46 Conn. App. 490 n.3.

         General Statutes § 54-82b (b) provides: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”
      Practice Book § 42-1 provides: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.”

       General Statutes § 52-493 provides: “Order in the nature of prerogative writs. Any court having cognizance of writs of habeas corpus, mandamus, quo warranto, prohibition or ne exeat may, in any action pending before it, make any order, interlocutory or final, in the nature of any such writ, to the extent of its jurisdiction, so far as it may appear to be an appropriate form of relief.”

       The petitioner, a college graduate who apparently also attended law school, represented himself at the second trial. The petitioner’s pro se status at that trial is not an issue in this appeal.

       The claims raised by the petitioner in connection with his direct appeal to the Appellate Court are not a subject of this appeal.

       The petitioner filed petitions for certification to appeal to this court from the judgment of the Appellate Court, which were denied. State v. Connelly, 244 Conn. 907, 908, 713 A.2d 829 (1998). Thereafter, the petitioner filed a petition for a writ of certiorari to the United States Supreme Court, which also was denied. Connelly v. Connecticut, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

       Judge Corrigan granted the petitioner’s petition for certification to appeal to the Appellate Court from the judgment of the habeas court dismissing the petitioner's petition for a writ of habeas corpus.

       The petitioner, who represented himself before the habeas court, also represents himself on appeal.

       Although the petitioner also alleges a due process violation under article first, § 8, of the constitution of Connecticut, he has not provided any independent analysis of that, claim. We, therefore, confine our analysis to his claim under the federal constitution. See, e.g., State v. Schiappa, 248 Conn. 132, 136-37 n.9, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

       The state asserted in the habeas court that the petitioner was not entitled to review of his judicial vindic.1 iveness claim because he had failed to establish sufficient reason why he did not raise that claim in his direct appeal from the judgment of conviction. See Jackson v. Commissioner of Correction, 227 Conn. 124, 131, 629 A.2d 413 (1993) (in collateral attack on conviction, petitioner must establish cause for failure to raise claim on direct appeal and actual prejudice). The habeas court, however, rejected the petitioner’s claim of judicial vindictiveness on the merits without addressing the issue of procedural default. The state renews its claim of procedural default on appeal, essentially as an alternative ground for affirmance. In light of our determination that Judge Corrigan properly rejected the petitioner’s claim of judicial vindictiveness on the merits, we need not consider the state’s claim of procedural default.

       The United States Supreme Court provided the following explanation in support of its conclusion: “Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial. A guilty plea must be both voluntary and intelligent . . . because it is the defendant’s admission in open court that he committed the acts charged in the indictment .... But the sort of information which satisfies this requirement will usually be far less than that brought out in a full trial on the merits.
      “As this case demonstrates ... in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. . . . Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present. ... In [such] cases . . . [therefore, the court] think[s] there are enough justifications for a heavier second sentence that it cannot be said to be more likely than not that a judge who imposes one is motivated by vindictiveness.” (Citations omitted; internal quotation marks omitted.) Alabama v. Smith, supra, 490 U.S. 801-802.

       In Coleman, we invoked our “supervisory authority [over the administration of justice] to require trial courts to explain, upon request by a defendant, their reasons for imposing a greater sentence after trial than previously had been imposed under the terms of a plea agreement.” (Emphasis added.) State v. Coleman, supra, 242 Conn. 542. This requirement applies even when the two sentences are imposed by different judges, as in the present case. See id. The petitioner, who did not request such an explanation from the trial court, makes no claim that he is entitled to a new sentencing hearing under the rule that we adopted in Coleman.

       In Texas v. McCullough, supra, 475 U.S. 134, the defendant was tried before a jury and convicted of murder. Id., 135. In accordance with Texas law, the defendant elected to be sentenced by the jury, which imposed a term of imprisonment of twenty years. Id., 135-36. Thereafter, however, the trial judge granted the defendant’s motion for a new trial on the ground of prosecutorial misconduct. Id., 136. The defendant was retried before a jury, and the same judge who had presided over the defendant’s first trial also presided at the retrial. Id. The second jury also found the defendant guilty of murder, and this time the defendant requested that the judge determine his sentence. Id. The judge imposed a term of imprisonment of fifty years. Id. In response to the defendant’s postconviction motion, the judge explained why the sentence that she imposed was longer than that set by the jury in the first trial. Id. In particular, the judge stated that she had been influenced by the testimony of two witnesses who had not testified at the first trial, and, in addition, that she had learned, for the first time on retrial, that the defendant had been released from prison only four months prior to committing the murder for which he had been convicted. Id. Finally, the judge acknowledged that, if she had sentenced the defendant after his first trial, she would have imposed a term of more than twenty years imprisonment. Id. On appeal, the Texas Court of Criminal Appeals concluded that the Pearce presumption applied and resentenced the defendant to twenty years imprisonment. Id. On appeal to the United States Supreme Court, that court concluded that, because the twenty year and fifty year sentences were imposed by two different sentencing authorities, “there was no realistic motive for vindictive sentencing [and, consequently] the Pearce presumption was inappropriate.” Id., 139. In concluding that a presumption of vindictiveness was unwarranted, the court added: “[T]he second sentencer provides an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more, particularly since trial judges must be accorded broad discretion in sentencing . . . .” Id., 140.

       We note that, in Pearce, the judge who imposed sentence after retrial was not the same judge who had imposed sentence after the first trial. See Texas v. McCullough, supra, 475 U.S. 140 n.3. In McCullough, however, the United States Supreme Court expressly rejected the contention that, on the basis of the court’s holding in Pearce, a presumption of vindictiveness is created in such circumstances: “Pearce itself apparently involved different judges presiding over the two trials, a fact that has led some courts to conclude by implication that the presumption of vindictiveness applies even where different sentencing judges are involved. See, e.g., United States v. Hawthorne, 532 F.2d 318, 323 [3d Cir.], cert. denied, 429 U.S. 894 [97 S. Ct. 254, 50 L. Ed. 2d 177] (1976). That fact, however, may not have been drawn to the Court’s attention and does not appear anywhere in the Court’s opinion in Pearce. Clearly the Court did not focus on it as a consideration for its holding. See Hardwick v. Doolittle, 558 F.2d 292, 299 [5th Cir. 1977], cert. denied, 434 U.S. 1049 [98 S. Ct. 897, 54 L. Ed. 2d 801] (1978). Subsequent opinions have also elucidated the basis for the Pearce presumption. [The court] held in Chaffin v. Stynchcombe, [supra] 412 U.S. [27] . . . for instance, that the presumption derives from the judge’s personal stake in the prior conviction ... a statement clearly at odds with reading Pearce to answer the two-sentencer issue. We therefore decline to read Pearce as governing this issue.” (Citation omitted; internal quotation marks omitted.) Texas v. McCullough, supra, 140-41 n.3.

       We note that it is undisputed that the petitioner does not believe that he suffers from a mental illness and that he consistently has refused treatment for that illness.

       Indeed, one of the petitioner’s brothers appeared at the sentencing hearing and personally advised Judge Scheinblum that he was fearful of the petitioner and would relocate upon the petitioner’s release from custody.

       We note that, in light of these facts, the petitioner could not prevail even if the Pearce presumption did apply to the facts of the present case. The United States Supreme Court has held that, when the Pearce presumption applies, “a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.” Wasman v. United States, supra, 468 U.S. 572. During the five year period from the date of his commitment to Whiting until the date of his sentencing by Judge Scheinblum, the petitioner consistently had refused to acknowledge or accept treatment for a serious mental illness that causes him to be a danger to others. This fact alone provided ample reason for Judge Scheinblum to conclude that a sentence in excess of ten years—the length of the commitment period fixed by Judge Holzberg—was appropriate.

       We acknowledge that the petitioner’s forty year sentence is a lengthy one. We note, however, that both the prosecutor and the senior probation officer who prepared the presentence investigation report for Judge Scheinblum recommended that the petitioner receive a sentence of fifty years, the statutory maximum. Moreover, on direct appeal, the Appellate Court rejected the petitioner’s claim that his sentence was excessive, concluding that the forty year prison term was within the limits fixed by statute for the offenses of which the petitioner was found guilty and did not constitute an abuse of discretion. See State v. Connelly, supra, 46 Conn. App. 503-504. The. Appellate Court also noted that “a petition for sentence review . . . is the appropriate vehicle by which to have [his] claim evaluated.” (Internal quotation marks omitted.) Id., 504.
      Thereafter, the petitioner filed an application for a reduction in his sentence with the sentence review division of the Superior Court. The sentence review division denied the petitioner’s application. In concluding that the petitioner’s sentence was not excessive, the sentence review division explained: “[The] [petitioner was convicted of serious felony charges involving the shooting of two innocent hostages. The maximum sentence which could be imposed for these violations was fifty years in prison. The prime index of the gravity of a particular crime is the length of the statutorily authorized prison sentence that a defendant convicted of the crime may be required to serve. . . . The officer who prepared the presentence investigation [report] recommended a fifty year sentence.
      “At the time of the sentencing, [the] petitioner made a concerted effort, to convince the court that he was not a threat to anyone and that he was an excellent candidate for rehabilitation. The record clearly indicates, however, that at sentencing, [the] petitioner still clung to his conspiracy theory and maintained that the victims were at fault. He has never shown any remorse for his criminal conduct, but has attempted to give reasons for the crime[s], [The] [petitioner indicated that he would not cooperate with any type of psychiatric help and resisted any recommitment to Whiting. [On the basis of these facts, the] petitioner confused a need for psychiatric treatment with a finding of competency. Under the circumstances the court could clearly determine that petitioner was, in fact, a threat to the public and his former victims.”

       We also note that the petitioner, on direct appeal from the judgment of conviction, had claimed that Judge Scheinblum was biased against him. The Appellate Court rejected that claim, however, concluding that its “thorough review of the record [did] not reveal any bias of the court.” State v. Connelly, supra, 46 Conn. App. 506.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM A. CONNELLY v. COMMISSIONER OF CORRECTION
    (SC 16281)
    McDonald, C. J., and Norcott, Katz, Palmer and Sullivan, Js.

      Argued November 30, 2000
    officially released October 9, 2001

      Gregory T. DAuria, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

      William A. Connelly, pro se, the appellee (petitioner).

      Monte P. Radler, supervisory assistant public defender, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.

       The listing of justices reflects their seniority status on this court as of the date of argument.
      Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion officially was released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

   Opinion

PALMER, J.

The primary issue raised by this appeal is whether an insanity acquittee who succeeds in having his acquittal vacated and, following a retrial, is convicted and sentenced to a term of imprisonment, is entitled, under General Statutes § 53a-38 (c), to credit toward his prison sentence for the period that he was confined in a mental health facility pursuant to a commitment order issued as a result of his insanity acquittal in accordance with what is now General Statutes § 17a-582. We answer the question in the affirmative.

The facts and procedural history of this case are undisputed. On November 10, 1989, the petitioner, William A. Connelly, became involved in an altercation that resulted in his arrest on kidnapping and assault charges. Following his arrest on November 10, 1989, the petitioner was confined at the Newington police department until November 13, 1989, at which time he was transferred to the custody of the respondent, the commissioner of correction (commissioner). The petitioner remained in the custody of the commissioner, in lieu of bail, until April 20, 1990. On that date, the petitioner, who had been charged with two counts of kidnapping in the second degree in violation of General Statutes (Rev. to 1989) § 53a-94 and two counts of assault in the second degree in violation of General Statutes (Rev. to 1989) § 53a-60, was tried to the court, Dunn, J., and found not guilty by reason of lack of capacity due to mental disease or defect. See General Statutes § 53a-13. The petitioner was transferred to Whiting Forensic Institute (Whiting) in Middletown for an examination pursuant to what is now § 17a-582 (a). On October 26, 1990, following the completion of that examination, the petitioner was committed by the court, Holzberg, J., to the custody of the commissioner of mental health for a period of ten years, subject to periodic review by the psychiatric security review board. Judge Holzberg directed that the petitioner be confined at Whiting. See General Statutes § 17a-599.

In 1993, the petitioner filed a petition for a writ of habeas corpus seeking to have the habeas court vacate the trial court’s judgment of acquittal by reason of lack of capacity due to mental disease or defect. On August 16, 1994, the habeas court, Higgins, J., granted the petition on the ground that the record did not affirmatively establish that the petitioner had been advised of his right to a jury trial. The habeas court vacated the trial court’s judgment of acquittal by reason of lack of capacity due to mental disease or defect and issued a writ of habeas corpus. On September 9, 1994, the petitioner was transferred from Whiting to the custody of the commissioner. In January, 1995, the petitioner was retried by a jury before Scheinblum, J., on the same charges of which he previously had been acquitted by reason of lack of capacity due to mental disease or defect, namely two counts each of kidnapping in the second degree and assault in the second degree. On January 26, 1995, the petitioner was found guilty on all counts, and, on March 3,1995, the trial court sentenced him to a total effective sentence of forty years imprisonment. The judgment of the trial court was affirmed by the Appellate Court. State v. Connelly, 46 Conn. App. 486, 513, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he claimed, inter alia, that the commissioner improperly had refused to grant him credit toward his forty year sentence for the period of time from April 20, 1990, to September 9, 1994, during which he was confined at Whiting pursuant to the first trial court’s order of commitment following his insanity acquittal. In particular, the petitioner claimed that he was entitled to such credit under § 53a-38 (c), which provides that, when a sentence has been vacated and a new sentence has been imposed for the same offense or for an offense based on the same act, the time served under the vacated sentence shall be credited against the new sentence. The petitioner further claimed that the commissioner improperly denied him good time credit under General Statutes § 18-7a (c) for the time that he was confined at Whiting. Finally, the petitioner asserted that the commissioner improperly had refused to grant him presentence confinement credit under General Statutes § 18-98d (a) for the three days that he was incarcerated at the Newington police department immediately following his arrest.

The habeas court, Hon. Thomas H. Corrigan, judge trial referee, agreed with the petitioner’s claims and ordered the commissioner to credit the petitioner’s sentence for all of the time to which he claimed he was entitled under §§ 53a-38 (c), 18-7a (c) and 18-98d (a). The commissioner appealed from the judgment of the habeas court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the commissioner claims that the habeas court erroneously concluded that the petitioner was entitled to time credited toward his forty year sentence. We conclude that the petitioner is entitled to credit toward his sentence for the time that he was confined at Whiting and, in addition, that he is eligible for consideration by the commissioner as to whether he is entitled to statutory good time credit in connection with his confinement there. We also conclude, however, that the petitioner is not entitled to presentence confinement credit toward his sentence for the three days that he was confined at the Newington police department following his arrest.

The petitioner’s claims raise issues of statutoiy construction, over which our review is plenary. See, e.g., Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Our resolution of those claims is governed by well established principles. “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 327-28, 692 A.2d 713 (1997). Guided by these principles, we turn, first, to the issue of whether the petitioner is entitled to credit, under § 53a-38 (c), for the time that he was confined at Whiting following his insanity acquittal.

As with all issues of statutoiy construction, we begin with the pertinent statutoiy language. General Statutes § 53a-38 (c) provides: “WTien a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.” Under its plain terms, § 53a-38 (c) applies to a vacated sentence of imprisonment) it contains no mention of a commitment order issued in connection with a vacated insanity acquittal. Although there is no dispute that both of the petitioner’s trials involved the same conduct and the same charges, the commitment order issued by Judge Holzberg as a result of the petitioner’s insanity acquittal is not a “sentence.” Indeed, we consistently have noted the “fundamental distinction between . . . incarceration pursuant to a criminal sentence and . . . commitment following an insanity acquittal”; Copeland v. Warden, 225 Conn. 46, 49, 621 A.2d 1311 (1993); accord Connelly v. Commissioner of Correction, 258 Conn. 374, 388, 780 A.2d 890 (2001); because commitment, unlike a criminal sentence, is not a sanction or penalty but, rather, a vehicle pursuant to which the court can ensure that a defendant who has engaged in unlawful conduct but has been found not guilty by reason of lack of capacity due to mental disease or defect will receive treatment for his or her mental disease or defect. See Connelly v. Commissioner of Correction, supra, 387. Strict application of the literal language of § 53a-38 (c), therefore, would preclude a determination that the petitioner is entitled to credit for the time that he was confined at Whiting following his insanity acquittal and subsequent commitment pursuant to § 17a-582.

For several reasons, however, we are persuaded that such a strict construction of § 53a-38 (c) is not warranted. First, it is by no means clear that the legislature, in enacting § 53a-38 (c), contemplated the scenario presented by this case. Because a defendant bears the burden of establishing the affirmative defense of lack of capacity due to mental disease or defect under § 53a-13; see footnote 1 of this opinion; and because proof of that affirmative defense reheves the defendant of criminal responsibility for his unlawful conduct, it is rare for an insanity acquittee to challenge his or her acquittal; even rarer is the case in which that challenge is successful, as in the present case. It, therefore, is highly unlikely that the legislature anticipated such a situation when it enacted § 53a-38 (c).

Furthermore, we believe that a literal interpretation of § 53a-38 (c) would result in an inequity that the legislature likely would not have intended. Although the purpose of an order of commitment issued as a result of an insanity acquittal is significantly different from that of a prison sentence imposed as a result of a criminal conviction; see, e.g., Connelly v. Commissioner of Correction, supra, 258 Conn. 387; the effect of such a commitment on the acquittee is no less a deprivation of liberty than that of a prison sentence. Indeed, the United States Supreme Court has aptly characterized the involuntary confinement for treatment of mental illness as a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972); accord Vitek v. Jones, 445 U.S. 480, 491, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). In fact, “[t]he United States Supreme Court has recognized involuntary commitment to a mental institution ... as involving more than a loss of freedom from confinement . . . due to its stigmatizing consequences, and the potential exposure to invasive, compulsory medical and psychiatric treatment.” (Citation omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 412-13, 645 A.2d 965 (1994), quoting Vitek v. Jones, supra, 492. We note, moreover, that the loss of liberty is all the more profound when the institution to which the patient has been committed is a maximum security facility such as Whiting. See footnote 8 of this opinion and accompanying text.

For these reasons, “our state law has, for certain purposes, likened [insanity] acquittees to prisoners who have been transferred to a mental hospital during the pendency of their jail sentence. We have noted that both classes of hospital inmates are being deprived of their liberty primarily for the protection of society . . . and [that] both have the same need for treatment.” (Internal quotation marks omitted.) State v. Metz, supra, 230 Conn. 417. Moreover, a sentenced prisoner who has been transferred from a penal institution to a mental health facility such as Whiting receives full credit toward his sentence for the time that he is confined at that facility. See generally, e.g., Murray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987). Indeed, a defendant convicted of a crime who is found to be suffering from a psychiatric disability may be transferred to Whiting by the commissioner immediately after sentencing and, depending upon his response to treatment, may be required to serve the balance of his sentence there. At the very least, it is troubling that, under the inteipretation of § 53a-38 (c) advanced by the commissioner, a sentenced defendant who is transferred to Whiting will receive full credit for all of the time that he is confined at Whiting whereas the petitioner will receive no credit for any time that he was confined there even though the petitioner’s confinement at Whiting, like that of the hypothetical prisoner who serves all or part of his sentence at Whiting, was the direct result of his prosecution for crimes that he ultimately was found guilty of committing.

“[W]e will not undertake an examination of [a statutory provision] with blinders on regarding what the legislature intended [it] to mean. ... In interpreting a statute, common sense must be used .... The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. . . . We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. . . . When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid [it].” (Citations omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 306-307, 732 A.2d 144 (1999).

Section 53a-38 (c) contains no express prohibition against an award of credit when the confinement following a first trial resulted from a commitment order issued as a result of a judgment of acquittal by reason of insanity that subsequently is vacated and not from a sentence imposed after a subsequently vacated conviction. Moreover, we believe that the fundamental purpose of § 53a-38 (c) is to afford an inmate credit toward his current sentence for the time that he was confined as a direct result of his initial trial on the same charges. It would be consistent with this basic statutory purpose to award the petitioner credit toward his forty year sentence for the period of time that he was confined at Whiting as a result of his acquittal by reason of insanity on the same charges for which he ultimately was convicted. We also believe that it is the fairer, more reasonable construction of § 53a-38 (c), and, therefore, the one that the legislature most likely intended. Accordingly, we agree with the habeas court that the petitioner is entitled to credit, under § 53a-38 (c), for the time that he was confined at Whiting, specifically, the period of time between April 20, 1990, and September 9, 1994.

The petitioner also is eligible to be considered for an award of good time credit under § 18-7a (c) for the duration of his commitment to Whiting because any time for which credit is to be granted under § 53a-38 (c) is treated as if that time actually had been served in connection with the sentence imposed after a retrial for the same charges. Consequently, on remand, the habeas court shall require the commissioner to determine whether the petitioner’s conduct at Whiting merits an award of good time credit pursuant to § 18-7a (c).

Finally, we must decide whether the petitioner also is entitled to presentence confinement credit toward his sentence for the three days that he was incarcerated at the Newington police department after his arrest. General Statutes § 18-98d (a), upon which the petitioner relies, provides in relevant part that presentence confinement credit shall be granted to any person who commits a crime on or after July 1, 1981, and who is “confined to a community correctional center or a correctional institution . . . under a mittimus or because such person is unable to obtain bail or is denied bail . . . .” (Emphasis added.) The Newington police department is neither a community correctional center nor a correctional institution. See General Statutes (Rev. to 1989) § 1-1 (w). If the legislature had intended to grant credit for presentence confinement in a local or municipal jail or police department, it easily could have expressed that intent by omitting “community correctional center or a correctional institution” from § 18-98d (a). See, e.g., State v. Davis, 255 Conn. 782, 791, 772 A.2d 559 (2001). Indeed, the statutory interpretation urged by the petitioner would require us to read those words out of § 18-98d (a). We will not construe § 18-98d (a) in such a manner, at least in the absence of a compelling reason to do so, because “[i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Hartford Hospital v. Dept. of Consumer Protection, 243 Conn. 709, 718, 707 A.2d 713 (1998).

The petitioner contends that interpreting § 18-98d (a) as written would violate double jeopardy principles. In particular, he maintains that the double jeopardy clause of the fifth amendment to the United States constitution, as applied to the states through the fourteenth amendment, requires that he be granted credit for all of the time that he was confined prior to trial, including the three days that he was incarcerated at the Newington police department. This claim is without merit. For purposes of the petitioner’s claim under § 18-98d (a), principles of double jeopardy mandate only that “punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense.” (Internal quotation marks omitted.) North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); see also footnote 16 of this opinion. In other words, “in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence.” (Emphasis added.) North Carolina v. Pearce, supra, 716-17. Under § 18-98d (a), a defendant is not entitled to any credit toward his original sentence for presentence confinement in a local jail or police department and that presentence confinement time does not comprise any of the “time served under the original sentence.” Id., 717. Consequently, the denial of presentence confinement credit for such time upon conviction after retrial simply does not implicate the protections of the double jeopardy clause.

The petitioner has failed to articulate any reason to ignore the unambiguous language of § 18-98d (a) limiting credit for presentence confinement to those persons who have been confined, prior to sentencing, at a “community correctional center or a correctional institution . . . .” General Statutes § 18-98d (a). We, therefore, reject the petitioner’s claim that he is entitled to presentence credit for the three days that he was confined at the Newington police department.

The judgment is affirmed insofar as the habeas court concluded that the petitioner is entitled to credit under § 53a-38 (c) and insofar as the habeas court concluded that the petitioner is eligible for consideration as to whether he is entitled to good time credit under § 18-7a (c). The judgment is reversed insofar as the habeas court concluded that the petitioner is entitled to presentence confinement credit under § 18-98d (a) and insofar as the habeas court concluded that the petitioner is entitled to good time credit under § 18-7a (c) and the case is remanded to that court with direction to order the commissioner to determine whether, in light of the petitioner’s conduct while the petitioner was confined at Whiting, he is entitled to good time credit under § 18-7a (c) for that period of confinement.

In this opinion the other justices concurred.

       Simply for ease of reference, we use the terms “insanity” and “lack of capacity due to mental disease or defect” interchangeably throughout this opinion. See General Statutes § 53a-13 (a) (“[i]n any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law”).

       General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.”
      Although § 53a-38 (c) was subject to a technical amendment in 1992; see Public Acts 1992, No. 92-260, § 17; that amendment has no bearing on the merits of this appeal and, therefore, we refer to the current revision for convenience.

       General Statutes § 17a-582 provides: “Confinement of acquittee for examination. Court order of commitment to board or discharge, (a) When any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to section 53a-13, the court shall order such acquittee committed to the custody of the Commissioner of Mental Health and Addiction Services who shall cause such acquittee to be confined, pending an order of the court pursuant to subsection (e) of this section, in any of the state hospitals for psychiatric disabilities or to the custody of the Commissioner of Mental Retardation, for an examination to determine his mental condition.
      “(b) Within forty-five days of the order of commitment pursuant to subsection (a) of this section, the superintendent of such hospital or the Commissioner of Mental Retardation shall cause the acquittee to be examined and file a report of the examination with the court, and shall send a copy thereof to the state’s attorney and counsel for the acquittee, setting forth the superintendent’s or said commissioner’s findings and conclusions as to whether the acquittee is a person who should be discharged.
      “(c) Within ten days of receipt of such superintendent’s or said commissioner’s report, either the state’s attorney or counsel for the acquittee may file notice of intent to perform a separate examination of the acquittee. An examination conducted on behalf of the acquittee may be performed by a psychiatrist or psychologist chosen by the acquittee and shall be performed at the acquittee’s expense unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. The superintendent or said commissioner who conducted the initial examination shall, within five days of a request of any party conducting a separate examination pursuant to this subsection, release to such party all records and reports compiled in the initial examination of the acquittee. Any separate examination report shall be filed with the court within thirty days of the filing with the court of the initial examination report by the superintendent or said commissioner.
      “(d) The court shall commence a hearing within fifteen days of its receipt of any separate examination report or if no notice of intent to perform a separate examination has been filed under subsection (c) of this section, within twenty-five days of the filing of such initial examination report.
      “(e) At the hearing, the court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, make one of the following orders:
      “(1) If the court finds that the acquittee is aperson who should be confined or conditionally released, the court shall order the acquittee committed to the jurisdiction of the board and either confined in a hospital for psychiatric disabilities or placed with the Commissioner of Mental Retardation, for custody, care and treatment pending a hearing before the board pursuant to section 17a-583; provided (A) the court shall fix a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense, and (B) if there is reason to believe that the acquittee is aperson who should be conditionally released, the court shall include in the order a recommendation to the board that the acquittee be considered for conditional release pursuant to subdivision (2) of section 17a-584; or
      “(2) If the court finds that the acquittee is a person who should be discharged, the court shall order the acquittee discharged from custody.
      “(f) At the hearing before the court, the acquittee shall have the burden of proving by a preponderance of the evidence that he is a person who should be discharged.
      “(g) An order of the court pursuant to subsection (e) of this section may be appealed by the acquittee or the state’s attorney to the Appellate Court. The court shall so notify the acquittee.
      “(h) During any term of commitment to the board, the acquittee shall remain under the jurisdiction of the board until discharged by the court pursuant to section 17a-593. Except as provided in subsection (c) of said section, the acquittee shall be immediately discharged at the expiration of the maximum term of commitment.
      “(i) On committing an acquittee to the jurisdiction of the board, the court shall advise the acquittee of the right to a hearing before the board in accordance with section 17a-583.”
      In 1989, when the petitioner allegedly committed the crimes for which he was acquitted and, in 1990, when the petitioner was acquitted by reason of lack of capacity due to mental disease or defect, § 17a-582 was codified at General Statutes (Rev. to 1989) § 17-257c. The provisions of § 17-257c were transferred to § 17a-582 in 1991. Although § 17a-582 was subject to technical amendments in 1995; see Public Acts 1995, No. 95-257, §§ 11, 48; those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of § 17a-582.

       For a more elaborate account of the facts giving rise to the charges in this case, see Connelly v. Commissioner of Correction, 258 Conn. 374, 376-77, 780 A.2d 890 (2001).

       General Statutes (Rev. to 1989) § 53a-94 provides in relevant part: “(a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”
      “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).

       General Statutes (Rev. to 1989) § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       See footnote 1 of this opinion.

       General Statutes § 17a-599 provides: “Confinement under conditions of maximum security. At any time the court or the board determines that the acquittee is a person who should be confined, it shall make a further determination of whether the acquittee is so violent as to require confinement under conditions of maximum security. Any acquittee found so violent as to require confinement under conditions of maximum security shall not be confined in any hospital for psychiatric disabilities or placed with the Commissioner of Mental Retardation unless such hospital or said commissioner has the trained and equipped staff, facilities or security to accommodate such acquittee.”
      In 1989 and 1990, § 17a-599 was codified at General Statutes (Rev. to 1989) § 17-257t. Section 17-257t was transferred to § 17a-599 in 1991. Although § 17a-599 was amended in 1995; see Public Acts 1995, No. 95-257, § 48; that amendment has no bearing on the merits of this appeal. For convenience, we refer to the current revision of § 17a-599.

       General Statutes § 18-7a (c) provides in relevant part: “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. . . .”
      Although § 18-7a (c) was amended in 1997; see Public Acts 1997, No. 97-169; that amendment is not relevant to the merits of this appeal. Thus, we refer to the current revision for convenience.

       General Statutes § 18-98d (a) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to aperson for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. ...”

       The habeas court concluded that, under the circumstances, “it is neither rational nor sensible to withhold” such credit from the petitioner.

       The commissioner represents that he has granted the petitioner credit toward his forty year sentence for the time that he was confined in the commissioner’s custody, including the following: (1) from November 13, 1989, the date of the petitioner’s arraignment, to April, 20, 1990, the date on which the first trial court rendered a judgment of acquittal by reason of lack of capacity due to mental disease or defect and on which the petitioner was transferred to Whiting from the custody of the commissioner; and (2) from September 9, 1994, the date that the petitioner was transferred from Whiting to the custody of the commissioner following the first habeas court’s issuance of a writ of habeas corpus, to the present day. Consequently, the parties’ disagreement is limited to whether the petitioner is entitled to credit for: (1) the three days that he was confined at the Newington police department from November 10,1989, to November 13, 1989; (2) the period of time between April 20, 1990, and September 9, 1994, when he was confined at Whiting; and (3) good time for the period that he was confined at Whiting.

       We note that there is nothing in the pertinent legislative history to suggest a contrary conclusion.

       In Vitek v. Jones, supra, 445 U.S. 494, the court held that the involuntary transfer of a prisoner to a mental hospital implicates a liberty interest that is protected by the due process clause of the fourteenth amendment to the United States constitution.

       Of course, the state may petition the Probate Court for the involuntary civil commitment of a person with a psychiatric disability who is a danger to himself. See generally General Statutes §§ 17a-497 through 17a-499. In such circumstances, the state is required to make that predicate showing by clear and convincing evidence. See General Statutes § 17a-498 (c). In the case of an insanity acquittee, however, the acquittee bears the burden of establishing by a preponderance of the evidence that he or she should be released prior to the expiration of the maximum term of commitment established pursuant to § 17a-582 (e) (X) (A). See General Statutes §§ 17a-582 (f), 17a-593 (f). Thus, the consequences of being subject to commitment pursuant to § 17a-582 as opposed to ordinary civil commitment are significantly more far-reaching. That difference is justified on the ground that the insanity acquittee has been found, beyond a reasonable doubt, to have committed a criminal act. State v. Metz, supra, 230 Conn. 417. Therefore, under our statutory scheme, the fact that an insanity acquittee has been found to have engaged in criminal conduct is a critical factor in regard to the determination of whether the acquittee will be released prior to the expiration of his maximum term of commitment.

       We acknowledge that, as the commissioner asserts, constitutional principles of double jeopardy require that a defendant be given credit toward his sentence for any time that he already has served in connection with a vacated sentence for the same charges; see, e.g., North Carolina v. Pearce, 395 U.S. 711, 718, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Moscone v. Manson, 185 Conn. 124, 131, 440 A.2d 848 (1981); and that § 53a-38 (c) was enacted with the intention of implementing that mandate. See Sutton v. Lopes, 202 Conn. 343, 348, 521 A.2d 147 (1987). We also acknowledge that those principles are inapplicable in the present case because the petitioner’s first trial did not result in a conviction. We are not persuaded, however, that the legislature necessarily intended that § 53a-38 (c) would apply only to those cases in which credit is constitutionally required. Although that class of cases comprises the vast majority of cases to which § 53a-38 (c) is applicable, we do not think that that fact alone militates against applying § 53a-38 (c) in the highly unusual circumstances of the present case.

         Insofar as the award of good time credit under § 18-7a (c) depends upon good conduct, the awarding of such credit is discretionary with the commissioner. Thus, any decision regarding an award of good time credit necessarily must be made, in thefirst instance,bythe commissioner. Because we do not know whether the petitioner’s conduct at Whiting merits an award of good time credit under any applicable rule or policy of the department of correction, we express no view as to whether the petitioner should receive such credit We conclude only that the petitioner is eligible for consideration by the commissioner as to whether the petit ioner’s conduct at Whiting merit s an award of good time credit under § 18-7a (c) for the duration of the petitioner’s confinement at Whiting just as if he had been a sentenced prisoner who was transferred to Whiting to serve some or all of his sentence there.
      We note that, insofar as the record reflects, the commissioner never has claimed that the petitioner is not entitled to good time credit under § 18-7a (c) on the ground that his conduct at Whiting would preclude an award thereof. Nevertheless, in light of the discretionary nature of good time credit, we conclude that the commissioner should be afforded an opportunity to determine whether the petitioner is entitled to such credit under applicable rules and regulations. Therefore, to the extent that the judgment of the habeas court directs the commissioner to award the petitioner good time credit under § 18-7a (c), that portion of the judgment must be reversed.

       General Statutes (Rev. to 1989) § 1-1 (w) provides: “ ‘Correctional institutions’ means the Connecticut Correctional Institution, Somers; the Connecticut Correctional Institution, Enfield-Medium; the Carl Robinson Correctional Institution, Enfield; the Connecticut Correctional Institution, Niantic; the John R. Manson Youth Institution, Cheshire; the Connecticut Correctional Center, Cheshire; the Community Correctional Centers, Bridgeport; Brooklyn; Haddam; Hartford; Litchfield; New Haven; and Montville and the Connecticut Correctional Camp, Portland. Wherever in the general statutes, the words ‘State Prison’, appear, they shall be construed to mean the Connecticut Correctional Institution, Somers; ‘State Prison for Women’ shall be construed to mean the maximum security division of the Connecticut Correctional Institution, Niantic; ‘jails’ or ‘jail’ shall be construed to mean the Community Correctional Centers, Bridgeport; Brooklyn; Haddam; Hartford; Litchfield; New Haven; and Montville and those portions of the Connecticut Correctional Institution, Niantic, used to detain female persons awaiting disposition of pending charges or to confine female persons convicted of, or who plead guiliy to, the commission of misdemeanors and who have been sentenced to community correctional centers or any of them, as the case may be; ‘Connecticut Reformatory’ shall be construed to mean the John R. Manson Youth Institution, Cheshire; and ‘The Connecticut State Farm for Women’ shall be construed to mean the Connecticut Correctional Institution, Niantic.”

       We note that, in light of the short period of time that a defendant may be subject to pretrial confinement at a facility, such as a local police department, that is not operated by the department of correction; see, e.g., General Statutes § 54-lg; the legislature reasonably may have determined that it would be administratively inefficient and, therefore, imprudent, to require the commissioner to ascertain and credit such time against any sentence ultimately imposed on a defendant.

       E.g., Monge, v. California, 524 U.S. 721, 727, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998); Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       See footnote 17 of this opinion.