State v. Toste

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Toste McDONALD, J., concurring. I agree with the major- ity’s conclusion that a trial court may consider a previous denial of commutation or parole by the Board of Pardons and Paroles (board) in deciding a motion for sentence modification and that reversal is not required on the facts of this case. Nevertheless, because the issue of whether a trial court may consider the results of board proceedings is an issue of first impression for this court, I feel obligated to write separately in order to highlight the trial court’s reliance on what the majority charitably describes as “skeletal evidence” and to outline what, in my view, should be the expected practice of trial courts in future cases similar to this one. I begin by reviewing the statutory and regulatory schemes governing the board. Pursuant to General Statutes § 54-124a (f), the board has independent deci- sion-making authority to, among other things, grant commutations of punishment or releases and grant or deny parole. The General Assembly tasked the chairper- son of the board with the authority and responsibility for, among other things, “adopting policies in all areas of pardons and paroles including, but not limited to, granting . . . commutations of punishments or releases . . . .” General Statutes § 54-124a (d) (4). In June 2021, the board issued a new policy as to its commutation pro- cedures.1 See Board of Pardons and Paroles, Commuta- tions, Policy III.02 (effective June 1, 2021), available at https://s3.documentcloud.org/documents/20795653/ getfileattachment.pdf (last visited August 18, 2026). Relevant here are the portions outlining the adminis- trative review process that followed the submission of an application for commutation. When the defendant, William Toste, filed his application, an applicant could not proceed to a hearing on the merits of an applica- tion before the board without the application first being reviewed at two different levels. First, board staff would 1 The board has amended the policy twice, with the most recent ver- sion becoming effective on July 26, 2023. In this opinion, I refer to the policy that was in place when the defendant, William Toste, filed his application for commutation in 2021.  State v. Toste determine whether the board had jurisdiction, whether the applicant had met the eligibility requirements, and whether the application was properly filled out and included the necessary attachments.2 Id., pp. 4–5. If the staff determined that the application complied with those requirements, a panel of three board members would conduct an administrative review of the applica- tion. Id., p. 5. Neither the applicant nor an advocate on behalf of the applicant could appear before, or be heard by, the panel conducting the administrative review. See id. The purpose of this review was for the panel to determine whether it should even schedule the applica- tion for a hearing. Id., pp. 5–6. If the panel declined to advance the application to a hearing as a result of the administrative review, it was required to prepare and send to the applicant a written decision providing the reason or reasons that the applicant would not receive a hearing. Id., p. 6. If an application survived the prescreening processes, the applicant appeared before the board during one of the at least semiannual board meetings specifically convened to hear applications for commutation on the merits. Id. For such a hearing, the applicant could appear along with an attorney. Id. Any testimony by the applicant 2 “All applications for a commutation must: “1) be filled out completely, truthfully, and accurately, and be signed by the applicant under penalty of perjury or false statement; “2) be submitted in the form and format required by the [b]oard; “3) include satisfactory proof that the applicant completed and sent two . . . signed JD-VS-3 Notice of Application forms to the Department of Correction Victim Services and the Judicial Branch Office of Victim Services; and “4) include any available police reports relevant to the conviction or convictions underlying the sentence or sentences for which the applicant is seeking a commutation or, where a police report is not available, a let- ter from the police department stating that the report is not available; “5) unless waived . . . include satisfactory proof that the applicant satisfies the eligibility requirements . . . of this policy; and “6) include any other information or authorization to obtain informa- tion relevant to the conviction or convictions underlying the sentence or sentences for which the applicant is seeking a commutation required by the [b]oard.” Board of Pardons and Paroles, supra, p. 4.  State v. Toste or any other witness, which could include any victim or representative of a victim of the applicant’s crimes, and any prosecutor of the applicant’s crimes, was taken under oath. Id., pp. 6–7. The policy prescribed guidelines that the panel should consider at such full hearings in determining the suitability of the applicant for commu- tation.3 Id., pp. 7–8. Following the hearing, if the board denied the application for commutation, it was required to prepare a written decision that included “a sufficiently detailed description” of the reasons for denial, “some description” of the weight that the panel assigned to relevant information, and any pertinent testimony that the panel considered. Id., p. 7. This overview of the policy is important because whether an application is administratively screened out prior to a hearing on the merits or is denied follow- ing a hearing is substantially relevant to a trial court’s analysis of a defendant’s suitability for release into the community when considering a motion for sentence 3 The policy stated in relevant part: “When determining whether to commute a sentence, the panel should consider the following: “1) the seriousness and recentness of the applicant’s conviction or convictions; “2) the applicant’s conduct while serving the sentence or sentences; “3) the impact of the applicant’s conviction or convictions on victims and the community; “4) whether, and the extent to which, the applicant has been rehabili- tated since sentencing; “5) whether, and the extent to which, a commutation will provide a benefit to the applicant; “6) whether, and the extent to which, a commutation will provide a benefit to society; “7) the length of the applicant’s sentence or sentences; “8) whether, and the extent to which, the length and form of the applicant’s sentence or sentences [are] consistent with contemporary sentencing practices; “9) whether, and the extent to which, the applicant is suffering from a terminal illness or has a severe and chronic disability that would be substantially mitigated by a commutation; “10) whether, and the extent to which, continued service of the appli- cant’s sentence or sentences [is] in the interests of justice; and “11) any extraordinary circumstances which favor commutation of the applicant’s sentence or sentences.” Board of Pardons and Paroles, supra, pp. 7−8.  State v. Toste modification. Given the differences in these steps, simply relying on the fact that an applicant’s sentence was not commuted is not sufficient. I turn now to the virtually nonexistent record from the modification hearing regarding the defendant’s encoun- ter with the board. As to his application for commutation, the defendant’s memorandum in support of his motion for sentence modification noted that it was “denied” on September 4, 2021.4 Without reference to how it developed its perception, the trial court, Hernandez, J., opined that the board “seem[s] to have a real grasp on where, when, and how people are suitable for release into the community,” and asked defense counsel, Daniel Lage, to share with the court information about any findings that the board may have made with respect to the defendant. Defense counsel responded that he had “[v]ery little” information, noting that the defendant had presented the application for commutation on his own, without the benefit of an advocate, and speculated that the board “may have just looked at his Department of [Correction] records, his criminal record, and made a decision denying” it. (Emphasis added.) The prosecutor, Michael DeJoseph, added in reference to the defendant’s application for commutation: “I’d like to know what the [board] said, but a lot of people are getting let out of jail by the [board]. In fact, I’m surprised when someone is not let out. It causes me to believe there must be something that made them deny [the defendant’s] application.”5 Without undertaking any efforts to determine the matter for himself, the prosecutor also noted that he was 4 As I will discuss, the actual date was September 14, 2021. 5 I note my deep concern with the prosecutor’s rank speculation mas- querading as a legal argument that, because the board was—in his sub- jective view—letting everyone out of prison, the fact that the defendant remained in prison must mean something significant unto itself. The prosecutor’s statement was shorn of supporting evidence and, in fact, is entirely contradicted by the relevant and publicly available statistics published by the board. Indeed, in 2021, the year that the defendant’s application for commutation was submitted to and decided by the board, it received a total of forty-nine commutation applications and granted only one. Board of Pardons and Paroles, Historical Agency Activity,  State v. Toste “curious to know if [the defendant] . . . had parole hear- ings, what the results were, and what the [board] said.” A victim’s advocate, appearing on behalf of the brother of one of the defendant’s victims, read a statement in which the victim’s brother noted that he had provided oral and written testimony for the defendant’s “two most recent parole board hearings in 2013 and 2019.” That is it. That was the sum total of the “evidence” related to the board. Based on that information, some of which is verifiably incorrect, the trial court stated in its oral ruling that it relied in part “on the fact that the [b]oard . . . denied [the defendant’s] application for [commutation]” and in part on the board’s “assessment of [the defendant’s] suitability for release into the com- munity.” To be clear, the trial court had absolutely no “assessment” by the board before it at all. In point of fact, publicly available information reflects that the defen- dant’s application never was considered on the merits at a hearing by the board, which is when, under the 2021 policy, the board would have needed to determine his suit- ability for release. His application appeared, along with five other applications, before a panel of board members for the required administrative review on September 14, 2021. During the meeting, which lasted only ten minutes, the panel administratively screened out five of the six applications, including the defendant’s. See Board of Pardons and Paroles, Minutes of Inmate Com- mutation Pre-Screen for September 14, 2021, available at https://egov.ct.gov/PMC/Event/Details/12281 (last visited August 18, 2026). In my view, a court should not rely on an administratively screened out commutation application as evidence that a defendant is not suitable available at https://portal.ct.gov/bopp/research-and-development- division/statistics/historical (last visited August 18, 2026). Without more, those numbers plainly do not support a conclusion that an applicant who did not receive a commutation must have a particularly troubling application. The prosecutor advanced an argument before the trial court regarding the defendant’s application to the board that had no basis in any fact gleaned from the record. The publicly available facts could have been known by the prosecutor had he resorted to easy research rather than to hyperbolic rhetoric.  State v. Toste to return to the community. Only an application that was denied after a hearing before the board should be con- sidered, and only when the board has followed its stated policy and prepared a written decision that includes a sufficiently detailed description of the reasons for denial, some description of the weight that the panel assigned to relevant information, and any pertinent testimony that the panel considered, or otherwise satisfied the policy requirements regarding a written decision in effect at the time of the application. None of that information was before the trial court; its summary conclusion to the contrary was deficient. In sum, I agree with the majority that a trial court may consider a prior denial of commutation or parole. However, the trial court should know the basic informa- tion of whether the board’s conclusion was reached on the merits or the application was screened out for some administrative reason. At a recent swearing-in ceremony of twelve Superior Court judges, Governor Ned Lamont challenged the new judges with a simple but weighty operational mission: to build trust with the public and litigants by explaining the law and how it applies to the facts of a case. See K. Dixon, “Lamont Stresses ‘Empathy and Understanding’ for New CT Judges Amid Distrust and Political Division,” Stamford Advocate, July 8, 2026, p. 4, available at https://www.stamfordadvocate. com/politics/article/lamont-ct-state-judges-swearing- in-2026-22337208.php (last visited August 18, 2026). “Explain why the ruling is the ruling and why it’s the right thing. Whether it’s what they want to hear or not, be able to explain what it is.” (Internal quotation marks omitted.) Id. I am dismayed to observe that the operational mission of a judicial officer, as stated by the governor, was not accomplished in what transpired in this case.6 6 It is, of course, an obvious truth that the governor does not determine the operational mission of the Judicial Branch. Nevertheless, in my view, Governor Lamont’s point that a court should be able to explain to litigants its conclusions of law in the context of the established facts of a case would be universally accepted within the Judicial Branch.