Anthony A. v. Commissioner of Correction ( 2021 )

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ANTHONY A. v. COMMISSIONER OF CORRECTION*
(SC 20499)
Robinson, C. J., and McDonald, Kahn, Ecker and Keller, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that the
Department of Correction violated his constitutional rights to procedural
due process in assigning him a certain sex treatment need score and
to substantive due process in classifying him as a sex offender, even
though he never had committed or been convicted of a sex offense. The
petitioner had been convicted of unlawful restraint in the first degree
and failure to appear, and had been found to be in violation of probation.
Prior to the petitioner’s incarceration, the state entered a nolle prosequi
as to a charge of sexual assault in a spousal relationship after the
petitioner’s wife, M, recanted her statement to the police that the peti-
tioner had sexually assaulted her during the same incident that formed
the basis for the charges of which he was convicted. Following his
release from incarceration, the petitioner pleaded guilty to new charges
stemming from another incident and was sentenced to concurrent terms
of incarceration. Upon his return to prison, the petitioner was notified
that a classification hearing would be held to determine whether, on
the basis of the prior charge of sexual assault in a spousal relationship,
he would be assigned a sex treatment need score of greater than 1 and
that, in making its determination, the department would be relying on
the police report of the petitioner’s arrest and the petitioner’s Connecti-
cut rap sheets. Prior to the hearing, the department denied the petition-
er’s requests that, at his hearing, he be permitted to present live witness
testimony and to be represented by counsel. During the hearing, the
petitioner denied sexually assaulting M and submitted several docu-
ments, including M’s letter recanting her statement to the police, in
support of his denial. Following the hearing, the hearing officer, T,
notified the petitioner that she had assigned him a sex treatment need
score of 3, that, in arriving at her decision, she reviewed not only the
record concerning the earlier incident that led to the charge of sexual
assault in a spousal relationship but also his complete Connecticut
criminal record, including numerous corresponding police reports and
arrest warrant applications, and that her supervisor, D, had reviewed
and approved the petitioner’s assigned sex treatment need score. There-
after, the petitioner appealed, challenging the assigned score, and T and
D denied the appeal after discussing it briefly. As a result of his sex
treatment need score, the petitioner could not be placed in a correctional
facility lower than level three without authorization from the respondent,
the Commissioner of Correction, which rendered him ineligible for a
veterans program available only at a level two facility. He also was
referred to the department’s sex treatment program staff for an evalua-
tion, but he refused to participate in the evaluation on the ground that
the department had incorrectly classified him as a sex offender. In
addition, the petitioner refused to sign his offender accountability plan,
which resulted in his forfeiture of twenty-five days of earned risk reduc-
tion credit and his being barred from earning additional credit until he
signed the plan, and it negatively impacted his eligibility for parole and
community release. The habeas court rendered judgment denying the
petitioner’s habeas petition. With respect to the petitioner’s procedural
due process claim, the habeas court, applying the standard set forth in
Wolff v. McDonnell (418 U.S. 539), considered and rejected each of the
petitioner’s contentions regarding the inadequacy of the process he was
provided prior to being classified as a sex offender. The court also
rejected the petitioner’s claims that the sex offender classification vio-
lated his right to substantive due process and that his sex treatment
need score constituted punishment not clearly warranted by law in
violation of article first, § 9, of the Connecticut constitution. On the
granting of certification, the petitioner appealed from the habeas court’s
judgment. Held:
1. The department violated the petitioner’s constitutional right to procedural
due process in classifying him as a sex offender, the petitioner not
having been afforded all of the procedural protections required by Wolff:
the petitioner was not provided an opportunity to call witnesses in his
defense, as the department denied his request to call witnesses without
knowing who the witnesses were or what they would say, or considering
whether their presence would be unduly hazardous to institutional safety
or correctional goals, and, under Wolff, in the absence of a showing by
the department that the presence at the prison of the witnesses whom
the petitioner planned to call would have been unduly hazardous to
institutional safety concerns, the petitioner should have been permitted
to call those witnesses; moreover, the petitioner was not provided ade-
quate notice of the information on which department personnel would
rely in determining his classification, as T conducted additional research
after the classification hearing had concluded into the petitioner’s crimi-
nal record, which included reviewing all of the petitioner’s arrest records,
in order to assess the reliability of M’s recantation but never notified
the petitioner that the facts of his past arrests would be used against
him, and, under Wolff, the petitioner was entitled to this information to
allow him an opportunity to marshal the facts in his defense, and the
department did not satisfy the notice requirements of Wolff by notifying
the petitioner that his Connecticut rap sheets would be reviewed as
part of the decision-making process; furthermore, the petitioner was
not afforded an impartial decision maker to rule on his administrative
appeal insofar as T and D ruled on that appeal from their own initial
classification decision, and, although the petitioner was denied due
process of law because of the manner in which the department con-
ducted the classification hearing, this court concluded that there was
sufficient evidence in the record to support the petitioner’s classification
as a sex offender in light of M’s detailed statement to the police describ-
ing the petitioner’s sexual misconduct and the petitioner’s own statement
to the police, which corroborated some of M’s account of the incident.
2. The petitioner could not prevail on his claim that the habeas court incor-
rectly concluded that the department had not violated his state constitu-
tional right to substantive due process by classifying him as a sex
offender: contrary to the petitioner’s argument, there was no evidence
that the petitioner was classified as a sex offender on the basis of mental
disability or psychiatric illness, and, therefore, because the petitioner
was classified on the basis of neutral considerations that did not target
a suspect class, his claim was subject to rational basis review rather
than strict scrutiny; moreover, the petitioner’s contention that the depart-
ment’s classification decision could not withstand rational basis review
was unavailing, as the department’s interests in effective population
management and rehabilitation were both legitimate and rationally
related to its classification policy and procedure, and the department’s
policy and process for classifying the petitioner as a sex offender did
not come close to shocking the conscience.
3. The petitioner’s classification as a sex offender on the basis of nonconvic-
tion information violated article first, § 9, of the Connecticut constitu-
tion, as the petitioner was not afforded the full panoply of the procedural
protections set forth in Wolff prior to receiving that classification; accord-
ingly, the habeas court’s judgment was reversed, and the case was
remanded with direction to issue a writ of habeas corpus and to direct
the respondent to expunge the petitioner’s sex treatment need score.
Argued December 10, 2020—officially released June 17, 2021**
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Sferrazza, J., rendered judgment dismissing
the petition, from which the petitioner, on the granting
of certification, appealed to the Appellate Court, Alvord,
Sheldon and Norcott, Js., which reversed the habeas
court’s judgment and remanded the case for further
proceedings, and the respondent, on the granting of
certification, appealed to this court, which affirmed the
Appellate Court’s judgment; thereafter, the petitioner
filed an amended petition for a writ of habeas corpus,
and the case was tried to the court, Kwak, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed. Reversed; judgment
directed.
Vishal K. Garg, for the appellant (petitioner).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Clare E. Kindall, solicitor general, for the
appellee (respondent).
Opinion
KELLER, J. In Anthony A. v. Commissioner of Cor-
rection, 326 Conn. 668, 166 A.3d 614 (2017) (Anthony
A. II), this court affirmed the judgment of the Appellate
Court, which concluded that the petitioner, Anthony A.,
had a protected liberty interest in not being incorrectly
classified by the Department of Correction (depart-
ment) as a sex offender for purposes of determining
the petitioner’s housing, security and treatment needs
within the department.1 Id., 674. Because the due pro-
cess clause prohibits the government from depriving a
person of any such interest except pursuant to constitu-
tionally adequate procedures, the case was remanded
to the habeas court for a determination of whether the
department had afforded the petitioner the process he
was due prior to assigning him the challenged classifica-
tion. Id., 686. Presently before us is the petitioner’s
appeal2 from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the habeas court incorrectly
determined that the respondent, the Commissioner of
Correction, did not violate his right to procedural due
process in classifying him as a sex offender.3 The peti-
tioner also claims that the habeas court incorrectly
determined that the challenged classification did not
violate his right to substantive due process or his right
not to be ‘‘punished, except in cases clearly warranted
by law,’’ under article first, § 9, of the Connecticut con-
stitution. We conclude that the petitioner was not
afforded the procedural protections he was due prior
to being classified as a sex offender and, therefore, that
his classification violated his right to procedural due
process under both the federal constitution and article
first, § 9, of our state constitution.4 We reject the peti-
tioner’s substantive due process claim. Accordingly, we
reverse the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The petitioner was
arrested and charged with several offenses, including
sexual assault in a spousal relationship pursuant to
General Statutes (Rev. to 2011) § 53a-70b, in connection
with an incident that occurred on the evening of July
18 and the early morning hours of July 19, 2011, at the
home of the petitioner’s former wife, M. According to
a police report, M informed the police that, on the night
in question, she and the petitioner had been drinking
and ‘‘smoking ‘crack’ ’’ cocaine, which caused the peti-
tioner to become paranoid and to act in a delusional
manner. Believing that another person was in the house,
the petitioner began searching for that person under the
bed, in closets, and in the hallway outside the bedroom.
After repeatedly accusing M of having an affair, the
petitioner ‘‘made her take off her clothing and [lie] on
her back,’’ whereupon he digitally penetrated her vagina
and anus looking for ‘‘ ‘used condoms.’ ’’ Later, the peti-
tioner became suspicious that another man had been
using his video game system ‘‘and stuck [his] fingers
inside [M’s] vagina and anus again.’’ When the petitioner
continued to accuse her of having an affair, M, out of
annoyance, lied to the petitioner that, in fact, she was
having an affair with one of his friends, which caused
the petitioner to become violent and to pour soda on M.
M informed the police that, following the soda inci-
dent, she went downstairs to shower and to get away
from the petitioner. While she was showering, the peti-
tioner entered the bathroom and threw cat litter, milk,
flour and paint on her. He also slammed the shower
door repeatedly in an apparent effort to ‘‘smash it.’’ The
petitioner then forced M back into the bedroom and
onto the bed. When M attempted to get out of the bed,
the petitioner restrained her and punched her in the
face. M was able to summon the police when the peti-
tioner left to use the bathroom. According to the
responding officers, the house was in ‘‘shambles’’ when
they arrived on the scene, with damage, ‘‘including but
not limited to . . . broken doors, smashed glass win-
dows, and red liquid splattered on [the] floor later iden-
tified as paint.’’ The officers also observed bruising on
M’s arms and above her right eye. While being trans-
ported to a hospital, M informed the paramedics that
the petitioner had sexually assaulted her, a claim she
repeated to police officers when they interviewed her
a short time later.
In the petitioner’s statement to the police, he admit-
ted to ‘‘ ‘getting high’ ’’ on cocaine and to questioning
M about whether she was having an affair. The peti-
tioner also stated that, throughout the night, as he lay
in bed next to M, he touched the inside and outside of
her vagina despite her saying ‘‘ ‘no’ ’’ and that she was
not in the mood, pushing his fingers away, and clenching
her legs. The petitioner stated that, when M said ‘‘no,’’
he would stop for a while before trying again, which
happened ‘‘several times’’ throughout the night, and
that, at one point, M ‘‘got [so] tired of him putting his
fingers in her vagina [that] she . . . threw her phone
at him.’’ The petitioner stated that ‘‘he then took [the]
phone and snapped it in half.’’
M subsequently recanted her statement to the police.
In a notarized letter dated August 17, 2011, she stated
that she ‘‘[did] not wish to pursue any . . . charges
against [the petitioner],’’ that ‘‘the police report [con-
cerning the night in question was] inaccurate’’ and that
the petitioner ‘‘never sexually assaulted [her].’’ M
explained that she and the petitioner ‘‘are very sexually
active and [that] any marks [on her body that evening]
came from [their] sexual activity . . . .’’ M further
stated that her ‘‘face was injured when [she] came out
of the shower and slipped on the wet floor,’’ and that
the petitioner ‘‘was not present’’ when she fell and ‘‘at
no time tried to harm [her].’’ She concluded by asserting
that ‘‘from the day [she] met [the petitioner] he [has]
NEVER EVER [been] violent’’ and ‘‘has never laid a
hand on [her] in any way.’’ (Emphasis in original.)
On February 21, 2012, the prosecutor informed the
trial court that she had met with M, who informed
her that ‘‘she was abusing substances’’ on the night in
question, that she no longer recalled her conversation
with the police, and that she ‘‘now believes that some-
thing different happened [from the sexual assault that]
was alleged to have happened . . . .’’ The prosecutor
informed the court that M also stated that, ‘‘when she
sobered up, she saw [that] what really happened . . .
was not [that the petitioner had] sexually assault[ed]
her,’’ that, ‘‘when she . . . slipped and hit her head [in
the bathroom] . . . she had a seizure and sometimes
. . . seizures make her believe things that are not actu-
ally true,’’ and that she ‘‘has no memory of whatever
she told the police, but [now] believes it to be . . .
incorrect.’’ Accordingly, the state entered a nolle prose-
qui on the charge of sexual assault in a spousal relation-
ship. Anthony A. v. Commissioner of Correction, supra,
326 Conn. 671. The petitioner thereafter pleaded guilty
to unlawful restraint in the first degree, failure to
appear, and violation of probation, for which he was
sentenced to an effective term of three years and six
months of incarceration. Anthony A. v. Commissioner
of Correction, 159 Conn. App. 226, 229, 122 A.3d 730(2015) (Anthony A. I), cert. denied, 326 Conn. 668, 166
A.3d 614 (2017).
Upon his incarceration, the petitioner was classified
pursuant to the department’s administrative directive
9.2, which requires that ‘‘[e]ach inmate under the cus-
tody of the [respondent] . . . be classified to the most
appropriate assignment for security and treatment
needs to promote effective population management and
preparation for release from confinement and supervi-
sion.’’ Conn. Dept. of Correction, Administrative Direc-
tive 9.2 (1) (effective July 1, 2006) (Administrative
Directive 9.2). An inmate’s classification is based on
the individual risk and needs of the inmate, which are
determined by an assessment of seven risk factors and
seven needs factors. Administrative Directive 9.2 (8)
(A) and (B). For each factor, an inmate is assigned a
score of 1 to 5, with 1 representing the lowest score
and 5 representing the highest score. Administrative
Directive 9.2 (6). Among the seven needs factors,
inmates are assessed for their sex treatment need
(STN). Administrative Directive 9.2 (8) (B) (6). An
inmate’s risk and needs level is used to determine
‘‘appropriate confinement location, treatment, pro-
grams, and employment assignment whether in a facil-
ity or the community.’’ Administrative Directive 9.2 (3)
(A). Inmates are further provided an ‘‘overall classifica-
tion assessment score’’ of 1 to 5 that corresponds to
the highest rating assigned to any of the seven risk
factors. Administrative Directive 9.2 (6) and (8) (C).
‘‘No inmate with [an STN] score of 2 or greater [may]
be assigned an overall score below level 3 without
authorization from the [respondent] or designee.’’
Administrative Directive 9.2 (8) (C).
The department’s Objective Classification Manual
(manual) details the process for assigning an STN score.
The manual provides that an inmate’s STN score indi-
cates whether they have ‘‘a record or known history of
problem sexual behavior.’’ Conn. Dept. of Correction,
Objective Classification Manual § III (D) (6), p. 35
(2012) (Classification Manual). The manual further pro-
vides that, in assigning an STN score, the department
may rely on ‘‘information acquired through [c]ourt
[t]ranscripts, [presentence] [i]nvestigations (PSI),
police reports, [department] [r]eports, Department of
Children [and] Families . . . reports, etc.’’ Id. ‘‘Infor-
mation from charges which were nolled, acquitted, dis-
missed, withdrawn or dropped, which is part of a crime
resulting in a conviction, [also] may be used to deter-
mine needs scores based [on] the description of the
crime from [the relevant] police reports, [PSIs], or other
reliable investigative reports.’’ (Emphasis omitted.) Id.,
§ III (A), p. 5. The manual further provides that a hearing
is required before an STN score can be assigned based
on ‘‘non-conviction information . . . .’’ Id., § III (D) (6),
p. 36. An inmate who receives an STN score of 2 or
higher ‘‘shall be referred to [the] sex treatment program
staff for evaluation.’’ Id. ‘‘Upon receipt of a referral, the
sex offender program staff . . . conduct[s] an assess-
ment to determine the inmate’s eligibility to participate
in sex offender programs. Inmates [are] prioritized for
services based on clinical needs, motivation, available
resources and release date.’’ Conn. Dept. of Correction,
Administrative Directive 8.13 (7) (effective October
31, 2007).
On August 7, 2012, the petitioner learned that the
department had assigned him an STN score of 3, which,
under the manual, is given to inmates who ‘‘have a
current conviction, pending charge or known history
of sexual offenses involving physical contact with the
victim(s) . . . .’’ Classification Manual, supra, § III (D)
(6), p. 36. The petitioner’s score was based on his and
M’s initial statements to the police recounting the events
culminating in the petitioner’s arrest on July 19, 2011.
Because of his score, the petitioner’s offender account-
ability plan (OAP) recommended that he participate in
‘‘sex treatment,’’ stating that a failure to do so would
‘‘negatively impact’’ the petitioner’s ability to earn risk
reduction credit5 and to participate in ‘‘supervised com-
munity release and/or parole.’’ ‘‘The petitioner refused
to sign the [OAP] and requested a hearing to prove that
he had not sexually assaulted [M]. He claimed that the
sex offender designation and treatment recommenda-
tion should be removed from his [OAP]. The department
responded: ‘You had a hearing on [July 7, 2012], and it
was found to be verified in the police report that there
was [nonconsensual] sexual contact. Therefore, your
[STN] score . . . is accurate and will not be changed.’
The petitioner’s repeated efforts to modify his [OAP]
to delete the sex offender designation were all unsuc-
cessful.’’ (Footnotes omitted.) Anthony A. v. Commis-
sioner of Correction, supra, 159 Conn. App. 230.
On February 20, 2013, the then self-represented peti-
tioner filed a petition for a writ of habeas corpus in
which he claimed that he was incorrectly classified as
a sex offender without due process of law. Anthony A.
v. Commissioner of Correction, supra, 326 Conn. 672.
The habeas court concluded that the petitioner did not
have a protected liberty interest in not being wrongly
classified as a sex offender and dismissed the petition.
Id., 673. The Appellate Court reversed the judgment and
remanded the case to the habeas court, concluding that
the petitioner did have such a protected liberty interest.
Id., 674. This court thereafter affirmed the Appellate
Court’s judgment. Id., 686. In so doing, we explained
that the Appellate Court, in reaching its decision, ‘‘first
considered whether the petition had been rendered
moot by the petitioner’s release from prison prior to
oral argument. . . . The [Appellate Court] observed
that the petitioner had informed the court that, after
his release, he had been arrested in connection with
new charges and was being detained at New Haven
Correctional Center. . . . Because of the petitioner’s
new arrest, the Appellate Court reasoned that there was
a reasonable possibility that, should he return to prison,
he will again be classified as being in need of sex
offender treatment because the department [had]
assigned him [an STN] score with a recommended sex
offender treatment referral during his previous incar-
ceration. . . . The [Appellate Court] concluded, there-
fore, [and we agreed] that the collateral consequences
exception to the mootness doctrine applied.’’ (Citations
omitted; internal quotation marks omitted.) Id., 673–74;
see id., 674 n.6.
On or about June 16 and 26, 2017, the petitioner
pleaded guilty to the new charges and was sentenced
to concurrent terms of incarceration. Following his
return to the respondent’s custody, on November 29,
2017, the petitioner was notified that a hearing would
be held on December 27, 2017, to determine whether
he would be assigned an STN score of greater than 1
based on his July 19, 2011 arrest for sexual assault in
a spousal relationship. The petitioner was advised that,
in making its determination, the department would rely
on the police report of that arrest as well as the petition-
er’s ‘‘CT State Rap Sheets.’’ In advance of the hearing,
the petitioner submitted an inmate request form
requesting that, at his hearing, he be permitted to argue
on his own behalf, to present documentary evidence,
to present live witness testimony, and to be represented
by counsel. The petitioner received a response from
Elizabeth Tugie, the counselor supervisor of offender
classification and population management at the
department, granting his requests to argue on his own
behalf and to present documentary evidence but deny-
ing his requests to present live witness testimony, stat-
ing that it was ‘‘[in]consistent with institutional safety
concerns,’’ and to be represented by counsel, stating
that the hearing was ‘‘not intended to be adversarial
but . . . to ensure that you are properly classified.’’
At his classification hearing, the petitioner denied
sexually assaulting M, stating that M could not recall
events from the night in question because she had been
drinking and she suffers from seizures. The petitioner
further stated that he and M had engaged in ‘‘ ‘normal
sexual relations,’ ’’ that he ‘‘never touched [her] sexually
without her consent and [that he] stopped touching her
when she pulled away.’’ In support of these assertions,
the petitioner submitted several documents, including
M’s August 17, 2011 letter recanting her July 19, 2011
statement to the Meriden police and the transcript of his
February 21, 2012 plea hearing, at which the prosecutor
informed the trial court about M’s recantation. The peti-
tioner also submitted a letter from his former defense
counsel that described an August 23, 2011 meeting
counsel had with M, during which M ‘‘was adamant that
[the petitioner] did not sexually assault her’’ and that
‘‘she did not want to press charges’’ against him. The
letter further stated that M also informed counsel that
she ‘‘wanted the protective order that was entered
against [the petitioner] dropped.’’
Following the hearing, Tugie, who served as the hear-
ing officer, notified the petitioner that he met ‘‘the
requirements for assignment of an [STN] score as out-
lined in the [manual]’’ and, accordingly, that she had
assigned him an STN score of ‘‘3VN.’’6 The notice stated
that, in arriving at her decision, Tugie had reviewed, in
addition to the petitioner’s July 19, 2011 arrest record,
the petitioner’s complete Connecticut criminal record,
including ‘‘numerous corresponding police reports and
arrest warrant applications . . . .’’ The notice further
stated that Tugie’s supervisor, David Maiga, had
reviewed and approved the petitioner’s assigned STN
score and that, pursuant to the department’s administra-
tive directive 9.6, the petitioner could appeal the score,
which he did. On March 5, 2018, Tugie and Maiga consid-
ered and denied the appeal after discussing it for
approximately ‘‘thirty seconds.’’ As a result of his STN
score of 3, the petitioner could not be placed in a facility
lower than level three without authorization from the
respondent or the respondent’s designee; see Adminis-
trative Directive 9.2 (8) (C); which rendered the peti-
tioner, a veteran of the Iraq war, ineligible for a veterans
program available only at a level two facility. Also, in
light of his STN classification, the petitioner was once
again referred to the sex treatment program staff for
evaluation but refused to participate in that evaluation
on the ground that the department incorrectly had
labeled him a sex offender.7 On March 20, 2018, the
petitioner was found guilty of refusing to sign his OAP.
As punishment, the petitioner forfeited twenty-five days
of earned risk reduction credit and was prospectively
barred from earning additional risk reduction credit
until he signed the OAP. The petitioner’s refusal to
sign the OAP also negatively impacted his eligibility for
parole and community release.
On April 18, 2018, the petitioner, now represented by
counsel, filed a third amended petition for a writ of
habeas corpus in which he alleged that, in assigning
his 2017 STN score, the department violated his consti-
tutional right to procedural due process in the following
ways: (1) by providing him inadequate notice of the
evidence to be relied on in deciding his score; (2) by
precluding him from presenting live witness testimony
at the classification hearing; (3) by not having the hear-
ing administered by an impartial decision maker; and
(4) by basing the classification decision on insufficient
evidence and failing to assess the credibility of M’s
allegations of sexual assault.8 The petitioner further
alleged that, by classifying him as a sex offender, even
though he had never committed or been convicted of
a sex offense, the department violated his constitutional
right to substantive due process as well as his right not
to be ‘‘punished, except in cases clearly warranted by
law’’ under article first, § 9, of the Connecticut constitu-
tion.9
A trial was held on the petition on July 10 and 30,
2018, at which Tugie testified that the petitioner’s STN
score was assigned based on nonconviction informa-
tion, which she described as information relating to a
crime of which an inmate has been convicted indicating
that the inmate, in the course of committing that crime,
engaged in conduct that constitutes ‘‘some semblance’’
of a sex offense, even though the inmate was not con-
victed of a sex offense. Tugie testified that, in assigning
the petitioner his score, she had credited M’s original
statement to the police concerning the events of July 19,
2011, over M’s subsequent recantation of that statement.
Tugie further testified that, although the score was
based on the petitioner’s July 19, 2011 arrest for sexual
assault in a spousal relationship, after the hearing, she
requested and reviewed reports of other incidents of
domestic disputes between the petitioner and M in
order to assess the reliability of M’s recantation. Tugie
acknowledged that the petitioner was never notified
that she would review these other records in making
her decision. Tugie explained that, in her experience,
it is ‘‘common for victims of domestic violence to recant
their statements out of fear . . . [or] sometimes coer-
cion’’ and that these other reports confirmed for her
that M’s recantation was not reliable.10 Tugie noted,
moreover, that she took into account the petitioner’s
own statements to the police following his July 19, 2011
arrest in determining the petitioner’s score.
Tugie’s supervisor, Maiga, also testified at the habeas
trial. Maiga stated, among other things, that the depart-
ment no longer classifies inmates as ‘‘sex offenders’’
but, rather, as inmates ‘‘having a sexual treatment
need.’’11 Maiga further testified that he first became
aware of the petitioner’s case following the Appellate
Court’s decision in Anthony A. I and that he and Tugie
had discussed the impact of that decision on the depart-
ment’s classification policies before assigning the peti-
tioner an STN score in 2017. Maiga explained that, under
administrative directive 9.2 (8) (C), the petitioner was
required to reside at a level three or higher facility based
on his STN score and that such facilities are some of
the more secure and restrictive housing options within
the department.
Finally, the petitioner called Amanda Kingston, a
forensic psychiatrist, to testify about an independent
review of the petitioner’s medical record she conducted
to determine if he had a need for sex offender treatment.
Kingston’s conclusions are summarized in a report
dated February 9, 2018, which was entered into evi-
dence. In her report, Kingston noted that, although the
petitioner previously has received several psychiatric
diagnoses, his ‘‘psychiatric records do not indicate any
history of problem sexual behaviors . . . .’’ The report
concludes that the July 19, 2011 incident between the
petitioner and M ‘‘appears to have occurred in the set-
ting of psychosis due to [the petitioner’s] underlying
schizoaffective disorder [as] exacerbated by his cocaine
use at the time’’ and does not ‘‘indicate an underlying
sexual disorder or paraphilia.’’ Kingston opined that
‘‘sexual offender treatment would not address the
underlying risk factors that led to [the petitioner’s] sex-
ual behaviors in 2011’’ and that treatment focused on
his underlying risk factors would be more appropriate.12
Kingston testified that, due to time constraints, she was
unable to interview the petitioner before drafting her
report but that she did interview him twice after com-
pleting it and that those interviews had not changed
her opinion.
On February 25, 2019, the habeas court issued a mem-
orandum of decision in which it denied the petitioner’s
habeas petition. With respect to the petitioner’s proce-
dural due process claim, the court applied the standard
set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct.
2963, 41 L. Ed. 2d 935 (1974), in which the United States
Supreme Court held that ‘‘due process requires proce-
dural protections before a prison inmate can be
deprived of a protected liberty interest’’; Superinten-
dent v. Hill, 472 U.S. 445, 453, 105 S. Ct. 2768, 86 L.
Ed. 2d 356 (1985); which include ‘‘(1) advance written
notice of the [action to be taken]; (2) an opportunity,
when consistent with institutional safety and correc-
tional goals, to call witnesses and [to] present documen-
tary evidence . . . and (3) a written statement by the
[fact finder] of the evidence relied on and the reasons
for the . . . action.’’ Id., 454. The habeas court then
considered and rejected each of the petitioner’s conten-
tions regarding the inadequacy of the process he was
provided prior to being classified as a sex offender. With
respect to the petitioner’s claim that Tugie improperly
refused to allow him to present live testimony at the
hearing, the court observed that ‘‘it is not [the depart-
ment’s] policy to permit live witness testimony because
of safety and security concerns’’ and that ‘‘the petitioner
does not have a due process right to present the testi-
mony of live witnesses, in particular not civilians such
as [M], who is the protected person in a criminal protec-
tive order issued by a court.13 The [department] had a
reasonable basis to exclude such witnesses and prop-
erly used discretion when denying the petitioner’s
request to present live witnesses at the classification
hearing.’’ (Footnote added.)
The habeas court also rejected the petitioner’s con-
tention that there was insufficient evidence to support
his STN score. The court explained that, in the prison
context, due process is satisfied so long as there is
‘‘ ‘some evidence’ ’’ in the record supporting the chal-
lenged decision and that, in the present case, that stan-
dard was more than met in light of M’s detailed state-
ment to the police recounting the petitioner’s sexual
misconduct and ‘‘the petitioner’s own statement regard-
ing [his] several attempts at initiating sex by digitally
penetrating [M’s] vagina, despite her saying no, repeat-
edly.’’ (Internal quotation marks omitted.) In reaching
its decision, the habeas court rejected the petitioner’s
contention that, under Luna v. Pico, 356 F.3d 481, 489
(2d Cir. 2004), and Sira v. Morton, 380 F.3d 57, 78 (2d
Cir. 2004), Tugie was required to conduct an indepen-
dent investigation into M’s ‘‘background and reputation
for truthfulness’’ before she could rely on M’s recanted
statement, stating that the cited cases established no
such requirement.
The habeas court next addressed the petitioner’s con-
tention that the department improperly failed to notify
him that it would consider his entire criminal record,
not just the record of his July 19, 2011 arrest, in
determining his STN score. The court concluded that
the notification received by the petitioner, which stated
that the department would consider his ‘‘CT State Rap
Sheets,’’ provided sufficient notice that ‘‘any law
enforcement documents relating to his arrests and con-
victions could be reviewed.’’ The court also credited
Tugie’s testimony that the petitioner’s STN score was
not based on any records other than his July 19, 2011
arrest record. To the extent Tugie reviewed any of the
petitioner’s other criminal records, the court concluded
that it was strictly for purposes of deciding whether M’s
recantation was reliable. Finally, the court summarily
rejected the petitioner’s contention that Tugie and
Maiga were not impartial decision makers, stating that
there was simply no evidence to support that claim.
With respect to the petitioner’s claim that the sex
offender classification violated his right to substantive
due process, the habeas court explained that, because
the petitioner is not a member of a protected class, the
department needed only a rational basis for classifying
him as a sex offender, and that the department’s ‘‘inter-
est in managing the inmate population, assessing
inmates for treatment while incarcerated, and facilitat-
ing their eventual transition back into society in a man-
ner that safeguards society from repeat offenses’’ pro-
vided such a basis. In reaching its determination, the
court rejected the petitioner’s contention that ‘‘his clas-
sification is inherently suspect because he has mental
disabilities [and because] the classification procedures
target individuals with mental disabilities,’’ stating that
the petitioner had failed to present ‘‘any evidence that
sexual disorders are mental disabilities’’ or that the
‘‘[department’s classification system] targets such indi-
viduals.’’ The court also rejected the petitioner’s claim
that his STN score constituted punishment not clearly
warranted by law in violation of article first, § 9, of the
Connecticut constitution, concluding that the petitioner
was not being punished as a result of his STN score
but, rather, for refusing to sign his OAP.
On appeal to this court, the petitioner renews his
claims before the habeas court that his classification
as a sex offender violated his procedural and substan-
tive due process rights, as well as his right not to be
‘‘punished, except in cases clearly warranted by law,’’
under article first, § 9, of the Connecticut constitution.
I
We begin with the petitioner’s claim that the habeas
court incorrectly concluded that he received all the
process he was due prior to being classified as a sex
offender. The petitioner contends that the department’s
‘‘blanket policy’’ against live witness testimony violated
Wolff’s mandate that inmates must be allowed to pres-
ent live testimony unless doing so would ‘‘be unduly
hazardous to institutional safety or correctional goals.’’
Wolff v. McDonnell, supra, 418 U.S. 566. The petitioner
further contends that the habeas court incorrectly
determined that the department provided prior written
notice of the evidence it would rely on in assigning
him his STN score because the notification he received
stated that, in addition to his July 19, 2011 arrest record,
the department would review his ‘‘CT State Rap Sheets.’’
The petitioner further contends that the habeas court
incorrectly determined that Tugie and Maiga were
impartial decision makers despite the fact that (1) they
were aware of and had discussed his case following
the Appellate Court’s decision in Anthony A. I, and (2)
they, rather than a disinterested decision maker, ruled
on his appeal from the decision that they themselves
had made. Finally, the petitioner contends that the
habeas court incorrectly determined that Tugie was
not required to undertake an independent credibility
assessment of M before crediting her July 19, 2011 state-
ment to the police, a mistake the petitioner claims was
compounded by the habeas court’s clearly erroneous
factual finding regarding M’s reason for recanting that
statement, namely, her inability to recall the events in
question.
The respondent argues in response that the habeas
court correctly determined that the petitioner received
all of the protections he was due under Wolff, including
adequate notice of the evidence the department would
rely on in deciding his classification. The respondent
contends that Wolff did not establish an absolute right
to present live witness testimony, that Tugie testified
that department ‘‘policy does not permit live witness
testimony because of safety and security concerns,’’
and that, under Wolff, it was proper for the habeas court
to defer to that policy. The respondent further argues
that the habeas court properly rejected the petitioner’s
claim that Tugie and Maiga were not impartial decision
makers in light of the petitioner’s failure to present any
evidence to support that claim. Finally, the respondent
argues that the habeas court correctly determined that
there was sufficient evidence to support the petitioner’s
STN score in light of M’s detailed statement to the police
describing the petitioner’s sexual misconduct and the
petitioner’s own statement, which largely corroborated
M’s statement.
We conclude that, although the petitioner was
afforded some of the procedural protections required
by Wolff, it is clear that he was not provided all of them.
In particular, he was not provided (1) an opportunity
to call witnesses in his defense, (2) adequate notice
of the information to be relied on in determining his
classification, (3) and an impartial decision maker to
rule on his appeal.
Whether the department violated the petitioner’s pro-
cedural due process rights presents a question of law
over which our review is plenary. See, e.g., State v.
Harris, 277 Conn. 378, 393, 890 A.2d 559 (2006). It is
well established that ‘‘[t]he habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . The application of the habeas
court’s factual findings to the pertinent legal standard,
however, presents a mixed question of law and fact,
which is subject to plenary review.’’ (Internal quotation
marks omitted.) Faraday v. Commissioner of Correc-
tion, 288 Conn. 326, 338, 952 A.2d 764 (2008).
In Wolff, the United States Supreme Court held that,
when a disciplinary hearing may result in the loss of
good time credits, due process requires that an inmate
receive (1) advance written notice of the disciplinary
charges, (2) an opportunity, when consistent with insti-
tutional safety and correctional goals, to call witnesses
and to present documentary evidence in his defense,
(3) an impartial decision maker, and (4) a written state-
ment by the fact finder of the evidence relied on and the
reasons for the disciplinary action. Wolff v. McDonnell,
supra, 418 U.S. 563–66, 571. In Superintendent v. Hill,
supra, 472 U.S. 445, the Supreme Court expanded these
protections to include a requirement that the fact find-
er’s decision be supported by ‘‘some evidence’’ in the
record. Id., 454. We previously have explained that ‘‘[the
some evidence] standard is a lenient one, requiring only
a modicum of evidence to support the challenged deci-
sion. [Id., 455]. Ascertaining whether this standard is
satisfied does not require examination of the entire
record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the
relevant question is whether there is any evidence in
the record that could support the conclusion reached
by the disciplinary board. Id., 455–56; see also Castro
v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013) (charac-
terizing test as minimally stringent).’’ (Internal quota-
tion marks omitted.) Vandever v. Commissioner of Cor-
rection, 315 Conn. 231, 245, 106 A.3d 266 (2014).
Although Wolff does not expressly require prior
notice of the evidence to be relied on at the hearing;
see Wolff v. McDonnell, supra, 418 U.S. 563; courts have
recognized that such a requirement is implicit in the
statement in Wolff that the notice must ‘‘inform [an
inmate] of the charges [against him] . . . to enable him
to marshal the facts and prepare a defense.’’ Id., 564;
see also, e.g., Vitek v. Jones, 445 U.S. 480, 494–96, 100
S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (before prisoner
may be transferred to mental hospital, Wolff requires
prior ‘‘disclosure to the prisoner . . . of the evidence
being relied upon’’ to support transfer); Meza v. Living-
ston, 607 F.3d 392, 409 (5th Cir. 2010) (concluding that,
under Wolff, before parolee was labeled sex offender
and required to participate in sex offender therapy,
he was entitled to ‘‘disclosure of the evidence being
presented against [him] to enable him to marshal the
facts asserted against him and prepare a defense’’).
Federal courts uniformly have held that the due pro-
cess requirements in Wolff apply to proceedings to
determine whether an inmate who has not previously
been convicted of a sex offense may be classified as a
sex offender for purposes of rehabilitation, treatment,
or parole. See, e.g., Renchenski v. Williams, 622 F.3d
315, 331 (3d Cir. 2010) (before inmate may be labeled
sex offender and required to participate in sex therapy,
he is entitled to ‘‘ ‘an effective but informal hearing,’ ’’
which includes protections outlined in Wolff), cert.
denied, 563 U.S. 956, 131 S. Ct. 2100, 179 L. Ed. 2d
926 (2001); Meza v. Livingston, supra, 607 F.3d 410(‘‘[b]ecause [a parolee’s] interest in being free from sex
offender conditions is greater than an inmate’s interest
in [good time] credits, [the parolee] is owed, at a mini-
mum, the same process due to inmates under Wolff’’);
Gwinn v. Awmiller, 354 F.3d 1211, 1218–19 (10th Cir.)
(because classification as sex offender reduces rate at
which inmate can earn good time credits, inmate is
entitled to procedural protections in Wolff), cert.
denied, 543 U.S. 860, 125 S. Ct. 181, 160 L. Ed. 2d 100(2004); Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir.
1997) (because classification of inmate as sex offender
and mandatory successful completion of sex offender
treatment program as precondition for parole eligibility
implicate protected liberty interest, inmate is entitled
to procedural protections in Wolff).
Although the court in Wolff cautioned that ‘‘[p]rison
officials must have the necessary discretion to keep the
hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or under-
mine authority’’; Wolff v. McDonnell, supra, 418 U.S. 566;
it held that ‘‘inmate[s] facing disciplinary proceedings
should be allowed to call witnesses’’; id., 566; and rec-
ommended that prison officials who deny them that
right ‘‘state [their] reason[s] for [doing so], whether it
be for irrelevance, lack of necessity, or the hazards
presented in individual cases.’’ Id. Thus, courts have
interpreted Wolff as establishing a right to call wit-
nesses, albeit one that can be denied for good reason.
See, e.g., Ponte v. Real, 471 U.S. 491, 495, 105 S. Ct.
2192, 85 L. Ed. 2d 553 (1985) (‘‘[c]hief among the due
process minima outlined in Wolff was the right of an
inmate to call and present witnesses . . . in his
defense before the disciplinary board’’); id., 499 (declin-
ing to place burden on inmate to show why action of
prison officials refusing to call witnesses was arbitrary
or capricious); Renchenski v. Williams, supra, 622 F.3d
331 (recognizing inmate’s right to ‘‘present witness testi-
mony . . . except upon a finding, not arbitrarily made,
of good cause for not permitting such presentation’’
(internal quotation marks omitted)); Meza v. Living-
ston, supra, 607 F.3d 409 (inmate was entitled to ‘‘a
hearing at which [he] is permitted to . . . call wit-
nesses’’); Gwinn v. Awmiller, supra, 354 F.3d 1219(inmate was entitled to ‘‘opportunity to present wit-
nesses and evidence’’ in defense of charges); Neal v.
Shimoda, supra, 131 F.3d 831 (stating that hearings to
classify inmates as sex offenders do not implicate same
safety concerns present in Wolff such that ‘‘an inmate
whom the prison intends to classify as a sex offender
is entitled to a hearing at which he must be allowed to
call witnesses and present documentary evidence in his
defense’’).
In the present case, it is undisputed that the depart-
ment denied the petitioner’s request to call witnesses
without knowing who the witnesses were or what they
would say, or considering whether their presence would
be ‘‘unduly hazardous to institutional safety or correc-
tional goals . . . .’’ Wolff v. McDonnell, supra, 418 U.S.
566. As previously indicated, the petitioner had planned
to call his former defense counsel, the police officers
who took M’s statement, and Kingston, the forensic
psychiatrist who interviewed him. According to Tugie,
it did not matter whom he planned to call because
the department’s policy is not to allow live witness
testimony under any circumstance.14 Tugie also testi-
fied, however, that the department routinely allows
police officers, lawyers, and medical staff into its facili-
ties to meet with inmates, a practice that belies the
safety and security concerns invoked to deny the peti-
tioner’s request to call police officers, a lawyer, and a
medical professional as witnesses at his hearing. Under
Wolff, in the absence of a showing by the department
that their presence at the prison would have been
unduly hazardous to institutional safety concerns, the
petitioner should have been permitted to call these wit-
nesses. See, e.g., Redding v. Fairman, 717 F.2d 1105,
1114 (7th Cir. 1983) (although ‘‘prison officials have the
discretion to refuse inmates’ requests for witnesses to
protect institutional safety or to keep the length of the
hearing within reasonable limits . . . in this case no
witnesses were allowed to testify at either hearing, and
there is no indication that the requests were unreason-
able’’), cert. denied, 465 U.S. 1025, 104 S. Ct. 1282, 79
L. Ed. 2d 685 (1984).15
We also agree with the petitioner that the department
did not provide him with adequate notice of the evi-
dence it would use in determining his classification.
As previously indicated, Tugie testified that, after the
classification hearing had concluded, she conducted
additional research into the petitioner’s criminal record,
which included reviewing all of the petitioner’s arrest
records, in order to assess the reliability of M’s recanta-
tion. She further testified that she never notified the
petitioner that the facts of his past arrests would be used
against him. Under Wolff, the petitioner was entitled to
this information so as to allow him ‘‘a chance to marshal
the facts in his defense . . . .’’ Wolff v. McDonnell,
supra, 418 U.S. 564; see also Vitek v. Jones, supra, 445
U.S. 494–96.
We disagree with the habeas court that the depart-
ment satisfied the notice requirements of Wolff by noti-
fying the petitioner that his ‘‘CT State Rap Sheets’’
would be reviewed as part of the decision-making pro-
cess. It is well established that a ‘‘rap sheet’’ is a criminal
history report produced by the state police containing
no specific details about the underlying facts of any of
the listed charges or convictions. See United States
Dept. of Justice v. Reporters Committee for Freedom
of the Press, 489 U.S. 749, 752, 109 S. Ct. 1468, 103 L.
Ed. 2d 774 (1989) (‘‘[r]ap sheets . . . contain certain
descriptive information, such as date of birth and physi-
cal characteristics, as well as a history of arrests,
charges, convictions, and incarcerations of the sub-
ject’’). Police reports, on the other hand, are quite
detailed and may contain incomplete or factually inac-
curate information.
The petitioner next argues that the decision to clas-
sify him as a sex offender was not rendered by impartial
decision makers because Tugie and Maiga discussed
his case following the release of the decision in Anthony
A. I. We disagree. Although ‘‘Wolff holds that prisoners
are entitled to impartial [decision makers]’’; White v.
Indiana Parole Board, 266 F.3d 759, 767 (7th Cir. 2001);
courts have interpreted this requirement as ‘‘prohib-
it[ing] only those officials who have [had] a direct per-
sonal or otherwise substantial involvement, such as
major participation in a judgmental or decision-making
role, in the circumstances underlying the charge from
sitting on the disciplinary body.’’ (Internal quotation
marks omitted.) Redding v. Fairman, supra, 717 F.2d
1113. The record contains no evidence of any personal
involvement by Tugie or Maiga in the factual circum-
stances on which they based their initial decision to
classify the petitioner as a sex offender; nor has the
petitioner identified any other evidence that could pos-
sibly call into question their ability to impartially carry
out their classification duties. See, e.g., Gwinn v.
Awmiller, supra, 354 F.3d 1221 (no due process viola-
tion even though hearing officer was named in inmate’s
action challenging prison classification system because
evidence ‘‘[did] not indicate that [the officer] was inca-
pable of fairly weighing the evidence presented . . .
and determining whether [the inmate] had actually com-
mitted the alleged [misconduct]’’); id., 1220–21 (noting
that ‘‘courts should be alert not to sustain routine or
pro forma claims of disqualification’’ because, ‘‘[f]rom
a practical standpoint, [unwarranted disqualifications]
. . . would heavily tax the working capacity of the
prison staff’’ (internal quotation marks omitted)).
We agree with the petitioner, however, that Tugie
and Maiga were not impartial decision makers when
they ruled on the petitioner’s appeal from their own
initial classification decision. Although we are mindful
not to overburden prison officials with needless disqual-
ifications, the due process principle of fairness required
that a different decision maker decide the merits of
that appeal. See, e.g., Withrow v. Larkin, 421 U.S. 35,
58 n.25, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) (‘‘[W]hen
review of an initial decision is mandated, the [decision
maker] must be other than the one who made the deci-
sion under review. . . . Allowing a [decision maker]
to review and evaluate his own prior decisions raises
problems . . . .’’ (Citations omitted.)); cf. Reilly v. Dis-
trict Court, 783 N.W.2d 490, 498 (Iowa 2010) (impartial
decision maker was provided when inmate had ‘‘the
opportunity to appeal the [disciplinary] decision to the
deputy warden, who was not at the original hearing’’).
Finally, although, for the reasons previously stated,
we conclude that the petitioner was denied due process
of law because of the manner in which the department
conducted his classification hearing, we agree with the
habeas court that there was sufficient evidence in the
record to support the department’s classification deci-
sion. As we have explained, ‘‘the requirements of due
process are satisfied if . . . there is any evidence in
the record that could support the conclusion reached
. . . .’’ (Citation omitted.) Superintendent v. Hill,
supra, 472 U.S. 455–56. In the present case, the evidence
consisted of M’s detailed statement to two police offi-
cers (and the paramedics who attended her) that the
petitioner had sexually assaulted her, and the petition-
er’s own statements to the police that corroborated
some of M’s account. As previously indicated, the peti-
tioner informed the police that he continued to touch
M’s vagina despite her pushing him away, telling him
‘‘ ‘no,’ ’’ clenching her legs, and even throwing a phone
at him. When combined with M’s account, there was
more than enough evidence to support the department’s
decision that the petitioner had likely committed a sex
offense. See, e.g., Vandever v. Commissioner of Correc-
tion, supra, 315 Conn. 245 (‘‘[the some evidence] stan-
dard is a lenient one’’).
In arguing to the contrary, the petitioner cites Luna
v. Pico, supra, 356 F.3d 481 and Sira v. Morton, supra,380 F.3d 57, which he claims required Tugie to conduct
an independent credibility assessment of M before cred-
iting her statement. Both cases are readily distinguish-
able. In Luna, the court held that the evidence used to
find an inmate, Alejandro Luna, guilty at two separate
disciplinary hearings of assaulting a fellow inmate, Hec-
tor Lopez, failed to satisfy the ‘‘ ‘some evidence’ ’’ stan-
dard. Luna v. Pico, supra, 485, 489. The court stated
that, at most, the evidence consisted of a bald accusa-
tion from Lopez, who later refused to testify at Luna’s
hearing. Id., 489. The court held that, under these cir-
cumstances, ‘‘[d]ue process require[d] that there be
some ‘independent credibility assessment’ ’’ of Lopez
before crediting his bare accusation. Id., 489–90. In Sira,
an inmate, Rubin Sira, following a disciplinary hearing,
was found guilty of organizing inmates to participate
in a prison demonstration. Sira v. Morton, supra, 65.
The evidence relied on to find him guilty was supplied
by two prison officials who shared information they
had learned from five confidential informants, none of
whom testified at the hearing. Id., 63–65. Because the
information provided to the prison officials by four of
the informants constituted hearsay evidence and the
fifth informant provided only conclusory accusations,
the court determined that that evidence was not reliable
and could not satisfy the ‘‘some evidence’’ standard in
the absence of a credibility assessment of those infor-
mants and their underlying sources. Id., 79–81.
The present case is unlike Luna and Sira because,
as previously explained, M initially provided a detailed,
firsthand account to the police of the petitioner’s sexual
misconduct, which the petitioner himself partially cor-
roborated in his own statement to the police. Accord-
ingly, we conclude that there was sufficient, reliable
evidence to support the petitioner’s classification. We
nonetheless acknowledge that, although there was suf-
ficient evidence to support the classification, the testi-
mony that the petitioner would have presented had he
been allowed to do so may have cast that evidence in
a different light sufficient to persuade Tugie that his
sex offender classification was unwarranted. Moreover,
as previously explained, because the petitioner was not
afforded an opportunity to call witnesses in his defense,
adequate notice of the evidence to be relied on by the
department in making its classification decision, and
an impartial decision maker ruling on his appeal, the
department’s classification of him as a sex offender
violated his right to procedural due process.
II
We next address the petitioner’s claim that the habeas
court incorrectly concluded that the department did
not violate his state constitutional right to substantive
due process by classifying him as a sex offender. The
petitioner argues that the department’s system of classi-
fying prisoners as being in need of sex offender treat-
ment ‘‘[is] subject to strict scrutiny under the state
constitution because [it] targets a suspect class, namely,
persons with mental disabilities,’’ and that the classifi-
cation system cannot withstand such scrutiny because
‘‘classif[ying] . . . the petitioner as having [an STN]
score of 3, despite the fact that he has no need for
[sex] treatment, is not narrowly tailored to further [the
department’s legitimate interest]’’ in ‘‘rehabilitating
. . . and preparing [inmates] for reentry into society.’’
The petitioner further argues that, ‘‘even if [his] claim
is subject to rational basis review, the [department’s]
decision to classify [him] as a sex offender still violates
substantive due process because the classification
bears no reasonable relationship to any state purpose.’’
We disagree.
‘‘The substantive component of the [due process
clause] . . . protects individual liberty against certain
government actions regardless of the fairness of the
procedures used to implement them.’’ (Internal quota-
tion marks omitted.) Greater New Haven Property
Owners Assn. v. New Haven, 288 Conn. 181, 201, 951
A.2d 551 (2008). ‘‘Despite the important role of substan-
tive due process in securing our fundamental liberties,
that guarantee does not entail a body of constitutional
law imposing liability whenever someone cloaked with
state authority causes harm. . . . Rather, [the guaran-
tee] has been held to protect against only the most
arbitrary and conscience shocking governmental intru-
sions into the personal realm that our [n]ation, built
upon postulates of respect for the liberty of the individ-
ual, has struck between that liberty and the demands of
organized society.’’ (Internal quotation marks omitted.)
Id., 202.
‘‘[S]ubstantive due process analysis . . . provides
for varying levels of judicial review to determine
whether a state [policy] passes constitutional muster
in terms of substantive due process. . . . Similar to
the analysis followed to determine equal protection
challenges, [policies] that [impair] a fundamental con-
stitutional right [or target] a suspect class . . . require
that this court apply strict scrutiny to determine
whether the [policy] passes [constitutional] muster
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Doe v. Hartford Roman Catholic Diocesan
Corp., 317 Conn. 357, 408, 119 A.3d 462 (2015); see also
Harris v. Commissioner of Correction, 271 Conn. 808,
831, 860 A.2d 715 (2004) (under strict scrutiny standard,
‘‘state must demonstrate that the challenged [policy] is
necessary to the achievement of a compelling state
interest’’ (internal quotation marks omitted)). Our state
constitution provides: ‘‘No person shall be denied the
equal protection of the law nor be subjected to segrega-
tion or discrimination in the exercise or enjoyment of
his or her civil or political rights because of religion,
race, color, ancestry, national origin, sex or physical
or mental disability.’’ Conn. Const., amend. XXI. We
previously have held that ‘‘[this] explicit prohibition of
discrimination because of physical [or mental] disability
defines . . . constitutionally protected class[es] of
persons whose rights are protected by requiring
encroachments on these rights to pass a strict scrutiny
test.’’ Daly v. DelPonte, 225 Conn. 499, 513–14, 624 A.2d
876 (1993).
‘‘In the absence of a claim of deprivation of a funda-
mental right [or the targeting of a suspect class], we
have scrutinized such questions under a rational basis
test. . . . [Under that standard] [t]he party claiming
a constitutional violation bears the heavy burden of
proving that the challenged policy has no reasonable
relationship to any legitimate state purpose . . . .’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Matos, 240 Conn. 743, 750,
694 A.2d 775 (1997); see also Ramos v. Vernon, 254
Conn. 799, 841, 761 A.2d 705 (2000) (‘‘[e]qual protection
rational basis review is for all material purposes . . .
indistinguishable from the analysis in which we would
engage pursuant to a [substantive] due process claim’’
(internal quotation marks omitted)).
We agree with the habeas court that there is simply
no evidence that the petitioner was classified as a sex
offender on the basis of mental disability or psychiatric
illness. The habeas court credited Tugie’s testimony
that her decision to classify the petitioner as a sex
offender was based on M’s statement to the police that
he sexually assaulted her and the petitioner’s own state-
ment to the police corroborating, in part, M’s account.
Tugie’s reliance on this information was consistent with
her testimony that an STN score that is assigned on
the basis of nonconviction information means a score
assigned on the basis of information contained in an
official report relating to a crime of which an inmate
has been convicted indicating that the inmate, in the
course of committing that crime, engaged in conduct
that bears ‘‘some semblance’’ of a sex offense. The
petitioner has identified nothing in the record to suggest
that Tugie considered his mental disability. Accord-
ingly, because the petitioner was classified based on
neutral considerations that do not target a suspect class,
the petitioner’s claim is subject to rational basis review.
See, e.g., United States v. LeMay, 260 F.3d 1018, 1030
(9th Cir. 2001) (‘‘[s]ex offenders are not a suspect
class’’), cert. denied, 534 U.S. 1166, 122 S. Ct. 1181, 152
L. Ed. 2d 124 (2002).
The petitioner contends that the department’s classi-
fication decision cannot withstand rational basis review
because its practice of ‘‘leaving the [sex offender classi-
fication] in place for an inmate without [sex] treatment
needs bears no reasonable relationship to [a department
purpose],’’ that the procedure by which classifications
are made, without input from a sex offender treatment
professional, is arbitrary, and that the restrictions on
those inmates classified as sex offenders, precluding
them from residing in a facility with a security level
lower than three, is ‘‘entirely unrelated to treatment
needs.’’ These arguments are unavailing.
As previously indicated, the habeas court found that
the petitioner’s sex offender classification was ‘‘not
punishment, but [a component] of [the department’s]
efforts to treat and rehabilitate [him].’’ Administrative
directive 9.2 (1) explains that the policy served by classi-
fication, including sex offender classification, is ‘‘to pro-
mote effective population management and preparation
for release from confinement and supervision.’’ Sex
offender classification, moreover, ‘‘focus[es] on the
level of sexual [reoffense] risk and address[es] program
intervention needs.’’ Classification Manual, supra, § III
(D) (6), p. 35. The department’s interests in effective
population management and rehabilitation are both
legitimate and rationally related to its classification pol-
icy and procedure. See McKune v. Lile, 536 U.S. 24, 33,
122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002) (‘‘[t]herapists
and correctional officers widely agree that clinical reha-
bilitative programs can enable sex offenders to manage
their impulses and in this way reduce recidivism’’).
Accordingly, although the petitioner had every right
to contest being classified as a sex offender on the basis
of nonconviction information; see parts I and III of
this opinion; the department’s policy and process for
classifying him as such do not come close to shocking
the conscience. See Waldman v. Conway, 871 F.3d
1283, 1293 (11th Cir. 2017) (holding that classification of
prisoner convicted of kidnapping minor as sex offender
and conditions imposed thereto, including ‘‘require-
ment that he attend sex offender classes or therapy and
his ineligibility for work release . . . are not so egre-
gious as to shock the conscience’’ (internal quotation
marks omitted)); Coleman v. Dretke, 395 F.3d 216,
224–25 (5th Cir. 2004) (denying claim that imposition
of sex offender registration and therapy as conditions
to parole of inmate not convicted of sex offense violates
substantive due process because ‘‘sex offender treat-
ment serves the government interest in protecting mem-
bers of the community from future sex offenses’’ and
therapy condition was not imposed ‘‘with the intent to
injure’’), cert. denied, 546 U.S. 938, 126 S. Ct. 427, 163
L. Ed. 2d 325 (2005). We therefore reject the petitioner’s
substantive due process claim.
III
We turn, finally, to the petitioner’s claim that the
habeas court incorrectly concluded that the department
did not violate his right not to be ‘‘punished, except in
cases clearly warranted by law,’’ under article first, § 9,
of the Connecticut constitution, by classifying him as
a sex offender on the basis of nonconviction informa-
tion. As previously indicated, the habeas court rejected
the petitioner’s claim that his classification was ‘‘pun-
ishment’’ in violation of article first, § 9, concluding,
instead, that ‘‘[t]he petitioner ha[d] punished himself
by not signing his OAP and then receiving a disciplinary
ticket for that refusal. . . . The negative consequences
emanating from his own decision [not to] sign the OAP
have resulted in the loss of [risk reduction credit] pre-
viously earned, the inability to earn [risk reduction
credit], and inability to be confined in a lower security
level facility where additional programs are available.’’
(Citation omitted.) The habeas court also rejected the
petitioner’s contention that the restrictions imposed on
him were not warranted by law within the meaning of
article first, § 9, because ‘‘he has never been convicted
of a sex offense and . . . there is insufficient credible
evidence that [he ever engaged in] acts of sexual vio-
lence against [M].’’ The habeas court concluded, rather,
that the evidence was more than sufficient to support
a finding that the petitioner had engaged in acts of
sexual misconduct against M.
On appeal, the petitioner renews his claim before the
habeas court that ‘‘[his] punishment . . . in the form
of his classification as a sex offender is not warranted
by law because [he] has never been convicted of a sex
offense and there is not sufficient credible evidence to
conclude that he ever committed a sex offense.’’ We
conclude that the petitioner’s sex offender classifica-
tion violated article first, § 9, because the petitioner
was not afforded the process he was due under Wolff
prior to receiving that classification.
Article first, § 9, of the Connecticut constitution pro-
vides that ‘‘[n]o person shall be arrested, detained or
punished, except in cases clearly warranted by law.’’
We previously have held that this provision is the crimi-
nal due process clause of our state constitution and that
it provides no greater protections than those available
under the federal constitution. See, e.g., State v. Jen-
kins, 298 Conn. 209, 259 n.39, 3 A.3d 806 (2010) (‘‘the
defendant’s reliance on [article first, § 9] is, in essence,
superfluous, because, in the search and seizure context,
[that section] is our criminal due process provision
that does not provide protections greater than those
afforded by either the fourth amendment [to the federal
constitution] or its coordinate specific state constitu-
tional provision, article first, § 7’’); State v. Mikolinski,
256 Conn. 543, 555, 775 A.2d 274 (2001) (‘‘[w]e have
generally characterized article first, § 9, as one of our
state constitutional provisions guaranteeing due pro-
cess of law’’ (internal quotation marks omitted)); State
v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990)
(because article first, § 9, affords no greater rights than
federal constitution, ‘‘the principles underlying consti-
tutionally permissible Terry16 stops . . . define when
[investigative] detentions are ‘clearly warranted by law’
under article first, § 9’’ (footnote added)).
‘‘Read in its entirety, the text [of article first, § 9]
indicates that the [meaning] to be assigned to the phrase
‘clearly warranted by law’ depends on the particular
liberty interest that is at stake. Such a construction is,
of course, entirely consonant with the general contours
of a constitutional safeguard rooted in flexible princi-
ples of due process.’’ Id., 178. Thus, we have held that
‘‘[t]he historical roots of [the phrase] ‘except in cases
clearly warranted by law’ appear . . . to provide pro-
tection for personal freedom through a blend of statu-
tory and constitutional rights that, like the text of . . .
article first, § 9, incorporates no single constitutional
standard.’’ Id., 179.
In the present case, the liberty interest at stake is a
prisoner’s right not to be incorrectly classified as a sex
offender and subjected to all the burdens attendant to
that classification. See, e.g., Renchenski v. Williams,
supra, 622 F.3d 326 (‘‘[i]t is largely without question
. . . that the sex offender label severely stigmatizes an
individual, and that a prisoner labeled as a sex offender
faces unique challenges in the prison environment’’).
In determining what protections attach to that right,
‘‘we [must remember] that one cannot automatically
apply procedural rules designed for free citizens in an
open society . . . to the very different situation pre-
sented by a disciplinary proceeding in a state prison.
. . . Prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution
of policies and practices that in their judgment are
needed to preserve internal order and discipline and
to maintain institutional security.’’ (Internal quotation
marks omitted.) Vandever v. Commissioner of Correc-
tion, supra, 315 Conn. 244; see also Bell v. Wolfish, 441
U.S. 520, 546, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)
(‘‘[a] detainee simply does not possess the full range
of freedoms of an unincarcerated individual’’); Roque
v. Warden, 181 Conn. 85, 93, 434 A.2d 348 (1980) (‘‘[p]ris-
oners retain rights under the due process clause . . .
but these rights are subject to reasonable restrictions
imposed by the nature of the institution to which they
have been lawfully committed’’ (citations omitted)). In
other words, what is ‘‘warranted by law’’; Conn. Const.,
art. I, § 9; for an incarcerated person is simply not the
same as what is warranted for an unincarcerated per-
son. As we explained in part I of this opinion, however,
one of the rights that a prisoner retains while incarcer-
ated is the right not to be classified as a sex offender
on the basis of nonconviction information, without first
being afforded the procedural protections set forth in
Wolff. Because the petitioner did not receive the full
panoply of those protections, we conclude that his clas-
sification violated article first, § 9, of our state constitu-
tion.
The judgment is reversed and the case is remanded
to the habeas court with direction to issue a writ of
habeas corpus and to direct the respondent to expunge
the petitioner’s STN score.
In this opinion the other justices concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
** June 17, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
As a general matter, inmate ‘‘[c]lassification . . . does not involve depri-
vation of a liberty interest independently protected by the [d]ue [p]rocess
[c]lause.’’ Bailey v. Shillinger, 828 F.2d 651, 652 (10th Cir. 1987). Courts
uniformly have held, however, that ‘‘an inmate who has not previously been
convicted of a sex offense may be classified as a sex offender for purposes
of a prison treatment program only if the prison affords him the procedural
protections to which prisoners facing disciplinary sanctions involving liberty
interests are generally entitled.’’ Gwinn v. Awmiller, 354 F.3d 1211, 1218
(10th Cir.), cert. denied, 543 U.S. 860, 125 S. Ct. 181, 160 L. Ed. 2d 100 (2004);
see also Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir. 2004) (‘‘prisoners
who have not been convicted of a sex offense have a liberty interest created
by the [d]ue [p]rocess [c]lause in freedom from sex offender classification
and conditions’’), cert. denied, 546 U.S. 938, 126 S. Ct. 427, 163 L. Ed. 2d 325(2005); Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (‘‘the stigmatizing
consequences of the attachment of the ‘sex offender’ label coupled with
the subjection of the targeted inmate to a mandatory treatment program
whose successful completion is a precondition for parole eligibility create
the kind of deprivations of liberty that require procedural protections’’).
2
The petitioner appealed to the Appellate Court from the judgment of
the habeas court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
Because the appeal in Anthony A. II came to this court on a motion to
dismiss, we took the facts alleged in the petition to be true; Anthony A.
v. Commissioner of Correction, supra, 326 Conn. 670; including that the
petitioner was ‘‘classified . . . as a sex offender, despite the fact that he
had not been convicted of a sex offense and had no prior history as a sex
offender.’’ Id., 672. In its memorandum of decision, the habeas court found
that, although the amended habeas petition ‘‘allege[d] that the assignment
of a [sex treatment need] score [of 3] classifies the petitioner as a sex
offender,’’ in fact, ‘‘[t]he respondent merely has classified the petitioner as
having sexual treatment needs, not as being a sex offender.’’ Prior to Febru-
ary, 2012, the department’s administrative directive 9.2 provided that all
inmates were to be assessed for their ‘‘[s]ex offender treatment’’ need. Conn.
Dept. of Correction, Administrative Directive 9.2 (8) (B) (6) (effective July
1, 2006). On February 23, 2012, pursuant ‘‘to the advice of the various
[a]ssistant [attorneys general] who have assisted the [department] in litiga-
tion and policy . . . regarding sex treatment need scores,’’ the department
removed the word ‘‘offender’’ from the directive such that inmates would
no longer be assessed for their sex offender treatment need but, rather, for
their sex treatment need. All of the criteria for determining an inmate’s sex
treatment need remained the same, however, as did the penalties for an
inmate’s refusal to sign an offender accountability plan classifying him in
need of such treatment. Moreover, the department’s Objective Classification
Manual provides that a sex treatment need score of 3 is given to ‘‘individuals
[who] have a current conviction, pending charge or known history of sexual
offenses involving physical contact with the victim(s) (necrophilia
included)’’ and that ‘‘[a]n inmate who engages in predatory sexual behavior
while incarcerated will [also] be given a score of 3.’’ (Emphasis added.)
Conn. Dept. of Correction, Objective Classification Manual § III (D) (6), pp.
36, 37. Contrary to the habeas court’s finding, therefore, although inmates
are no longer assessed for their sex offender treatment need, the score
assigned to the petitioner is reserved expressly for inmates with a ‘‘known
history of sexual offenses’’; id.; which is simply another way of saying
inmates who are known sex offenders.
4
As we explain more fully in part III of this opinion, we have long held
that article first, § 9, of the Connecticut constitution is the criminal due
process clause of our state constitution and that it affords no greater protec-
tions than the protections afforded under the federal constitution. See, e.g.,
State v. Jenkins, 298 Conn. 209, 259 n.39, 3 A.3d 806 (2010).
5
Risk reduction credit is credit an eligible inmate may earn ‘‘toward a
reduction of [his or her] sentence . . . .’’ General Statutes § 18-98e (a).
6
The manual defines the subcode ‘‘V’’ as: ‘‘Verified: Information used to
classify the individual is documented in the official record and is considered
accurate.’’ Classification Manual, supra, § III (D) (6), p. 38. The manual
further defines the subcode ‘‘N’’ as ‘‘[d]enot[ing] [that the] score [is] based
on [nonconviction] information.’’ Id.
7
The habeas court found that the petitioner was referred to have his
sexual treatment needs determined and that he ‘‘was determined [not to]
require sexual offender treatment, and none was ordered or required by
[the department].’’ That finding is contrary to the evidence presented to the
habeas court. The petitioner testified that, as a result of his classification,
he was asked to participate in an evaluation to determine whether he would
receive sex treatment but that he refused to do so because he was ‘‘not a
sex offender.’’ Tugie also testified that, although not certain, she did not
believe that the petitioner met with the sex treatment program staff for an
evaluation because the petitioner had refused to sign his OAP. Similarly,
Maiga testified that, following his classification, a sex treatment referral
was added to the petitioner’s OAP. The petitioner refused to sign that OAP.
According to Maiga, had the petitioner signed his OAP, he would have met
with the sex treatment program staff to determine if he needed treatment.
Accordingly, contrary to the finding of the habeas court, the petitioner was
not evaluated by the sex treatment program staff for his sexual treatment
needs, and, therefore, it was never determined that he did not require sex
treatment.
8
The petitioner also alleged that the department violated his right to
procedural due process by not allowing him to be represented by counsel
at his hearing, not providing him the opportunity to cross-examine his accus-
ers, not providing him a sufficient explanation of the reasons for its classifica-
tion decision, ignoring medical evidence he submitted, not providing a rea-
sonable explanation for ignoring that evidence, and not adequately assessing
the credibility or reliability of hearsay statements relied on to reach its
classification decision. The petitioner failed to address these claims in his
posttrial brief, and, accordingly, the habeas court deemed them abandoned.
The petitioner does not raise any of those claims on appeal, and we do not
discuss them.
9
The petitioner further alleged a violation of his constitutional right to
be free from cruel and unusual punishment but abandoned that claim in
his posttrial brief.
10
Tugie testified that she had training as a ‘‘domestic violence facilitator’’
but did not provide any specific details as to what that role is or what the
training for it entailed. It is unclear from the record whether the training
Tugie received qualified her to assess the reliability of M’s recantation in
light of domestic disputes between the petitioner and M.
11
See footnote 3 of this opinion.
12
On July 17, 2018, the petitioner became parole eligible. In advance of
his parole eligibility, the petitioner refused a sex offender evaluation by
the Board of Pardons and Paroles (board). As a result, David Rentler, the
supervising psychologist for the board, was asked to review the petitioner’s
case to determine whether that evaluation would be required before the
petitioner may receive a parole hearing. Rentler concluded that the evalua-
tion was not required because the petitioner’s conduct did ‘‘not appear to
have an underlying sexual motivation’’ but, rather, resulted from ‘‘paranoia
and suspicious beliefs likely induced by [drug use].’’
13
It is undisputed that the petitioner did not seek to call M as a witness,
only his former defense counsel, the police officers who took M’s statement,
and Kingston.
14
Contrary to the habeas court’s determination, the witnesses the peti-
tioner sought to present at his hearing, in particular the police officers who
took M’s statement and the petitioner’s former defense counsel, to whom
M retracted her sexual assault allegation, were relevant to the department’s
classification decision because each of those witnesses could have provided
testimony that described the context and, thus, the reliability of both M’s
allegation and subsequent recantation. As previously indicated, Tugie testi-
fied that she conducted additional research into the petitioner’s arrest record
following the classification hearing to assist her in deciding the credibility
of M’s recantation and, therefore, the credibility of the petitioner’s assertions
that M’s initial statement to the police was the product of her drug and
alcohol use on the night in question.
15
To reiterate, it is undisputed that the petitioner did not seek to call M,
a person protected under a criminal protective order, as a witness. See
footnote 13 of this opinion. Had the petitioner sought to do so, we would
be presented with entirely different circumstances than those of the pres-
ent case.
16
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d (1968).