Attorney Naomi T. Fetterman told the justices during oral argument that the lower court ruled against her client, William Toste, in his 2023 bid for release despite a lack of information in the record. The judge never heard any explanation for the Board of Pardons and Paroles' decisions not to free Toste, and it wasn't even clear if the septuagenarian had received a hearing, but the jurist still pointed to the board's determinations when making up his mind, she said.
Fetterman said she is not arguing that a trial court should be "prohibited from looking into parole proceedings" when considering a sentence modification.
"The argument that exists here is that there's simply a dearth of information regarding the substance and the import and the rationale of those proceedings, such that they're not reliable for the trial court to use in denying the sentence modification," she said.
To have his case restored, Toste's burden is simply to show the lower court used unreliable information, and he doesn't have to show he otherwise would have received his requested modification, the attorney added later.
But counsel for the state, Laurie N. Feldman of the Office of the Chief State's Attorney, Appellate Bureau, said the court's reliance "was not outcome determinative" or "essential" to the judge's ruling, so remand is not appropriate.
The board "denied" Toste's 2013 and 2019 applications for parole, as well as a 2021 application for commutation, and he sought a court-ordered sentence modification in May 2023, according to a decision from the Connecticut Appellate Court that upheld the trial court outcome.
The trial court used the word "denied" in its June 2023 oral ruling against Toste, but Justice Andrew J. McDonald sparred with counsel for the state about that term Monday, noting that an application can be "screened out" before consideration.
"Is there any evidence in this record to show that there were applications [that] were 'denied' by the Board of Pardons and Paroles?" the justice asked Feldman.
"Well, the defendant wasn't pardoned and wasn't released," she said.
"That's a different question. Applications can be screened out on an administrative level," the justice replied.
"It can be screened out for all sorts of administrative reasons disconnected from any merits," he said later. "We know it was a complete application? We don't know that."
The sentence modification judge rejected all of Toste's arguments for release, and the result would have been the same if he had not considered the parole board outcomes, Feldman said.
"The trial court was not presented with grounds that would assure the safety of the community," Feldman said.
She argued that the judge looked to the parole board for "affirmation" of the decision that he was rendering for a multitude of reasons.
Court records allege that after murdering Mavis Hardy, Toste stole her car and was involved in two accidents, one of which killed 24-year-old law student Edward Tkacik, who had been calling his parents from a phone booth.
In 1976, Toste was convicted of murder for Hardy's death and manslaughter for killing Tkacik, but the high court ordered a new trial, which led only to a conviction for Hardy's murder. The appellate court opinion said it was unclear if Toste had appealed the manslaughter verdict; the state's brief said relevant court records were destroyed.
Nevertheless, the state's appellate brief indicates that Tkacik's family opposed Toste's parole applications and the sentence modification. The brief said a victim's advocate spoke for Tkacik's brother before Superior Court Judge Alex V. Hernandez and made reference to "oral and written testimonies" that he provided for two "hearings" in 2013 and 2019.
Fetterman said the record did not indicate if Toste received a hearing on his commutation application or whether there were "truly" hearings on the parole applications. His indeterminate sentence is periodically reviewed, but that does not necessarily mean that he is given parole hearings, she argued.
"I think there is a screening process by a parole officer that occurs at the institution, but my understanding is that there was never a full hearing," she said. "And I was very promptly corrected by parole when I asked, Why was he denied, and was told, It's not 'he's denied,' he 'wasn't granted.'"
"Screened out," Justice McDonald said.
Toste killed Hardy on the same day that he was released "from serving time on a prior offense," the state's brief said, adding that Hardy had refused his request to live with her and her son.
In seeking a sentence modification, Toste asserted that "good cause existed to reduce his sentence to time served in light of his intellectual disability, age and physical condition, rehabilitation and remorse, and plan for reentry," according to a case summary provided by the Connecticut Judicial Branch.
Judge Hernandez orally ruled against Toste, saying he had considered "the seriousness of the offenses, the impact on the victim and the victim's family, and quite frankly on the fact that the Board of Pardons and Parole denied Mr. Toste's application for release on an indeterminate sentence, notwithstanding the fact that he has done in excess of the 25-year mandatory minimum," according to Toste's appeal brief.
The judge clarified that he was "not bound by their findings, but I do rely in part on their assessment of Mr. Toste's suitability for release into the community."
Fetterman said that reliance was "inappropriate" because a sentence modification hearing can be granted in part, meaning Toste did not have to be released into the community if the judge did not want that. Toste would be better suited for "a residential placement," she argued.
Toste's memorandum to the trial court said his intellectual capacity qualified him for "social benefits and services," and a psychiatrist suggested that a residential setting with supervision would be "the best option" for him. He said he would gain access to mental health treatment services and be able to apply for a conservatorship.
Feldman said the court had the authority to grant Toste's motion, but not to "make sure that he got a custodialship" or that he lived "in a secure residential facility with all the safeguards in place that the expert said would be necessary" to potentially make the community safe.
Justice William H. Bright Jr. did not participate in the argument. He wrote the opinion against Toste when he served as chief judge of the Connecticut Appellate Court.
Toste is represented by Naomi T. Fetterman.
The state is represented by Laurie N. Feldman of the Office of the Chief State's Attorney, Appellate Bureau.
The case is State of Connecticut v. William Toste, case number SC 21130, in the Connecticut Supreme Court.
--Editing by Patrick Reagan.
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