************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
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 majority’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 decision-making authority to, among other things, grant
commutations of punishment or releases and grant or
deny parole. The General Assembly tasked the chairperson 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 procedures.1 See Board of Pardons and Paroles, Commutations, 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 administrative 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 application 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 version 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 application. 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 application 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 letter 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 information 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 commutation.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 following 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 rehabilitated 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 applicant’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 encounter 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 masquerading as a legal argument that, because the board was—in his subjective 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 hearings, 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 community.” 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 defendant’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 suitability 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 Commutation 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-developmentdivision/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 considered, 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 information 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-swearingin-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.