Judges at sentence modification hearings can consider the decisions of the state parole board as part of a broader array of evidence, the Connecticut Supreme Court ruled Thursday in turning down an appeal from an elderly convict who lost his bid for release from prison.

A majority of five justices held that Superior Court Judge Alex V. Hernandez did not abuse his discretion when he used previous parole denials as one factor in refusing to resentence William Toste to time served for a 1974 murder. The judge had only "skeletal evidence" of what took place before the Board of Pardons and Paroles, the justices said, but they found it was sufficient to keep Toste behind bars to continue serving his indeterminate sentence.

"The basic facts were clear; the board had considered whether to release the defendant on parole and did not grant him relief. Although there is nothing in the record to explain why the defendant was not granted parole or other relief, that lacuna affects the probative value of the board proceedings, not their reliability," the opinion written by Justice Joan K. Alexander said.

Chief Justice Raheem L. Mullins and Justices Gregory T. D'Auria, Steven D. Ecker and Nora R. Dannehy joined the opinion.

Justice Andrew J. McDonald, writing separately, agreed with the outcome of the case, but said he wanted judges to rely on better evidence than Judge Hernandez had available to him.

"In sum, I agree with the majority that a trial court may consider a prior denial of commutation or parole," Justice McDonald wrote. "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."

The Board of Pardons and Paroles "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.

In his concurrence, Justice McDonald seized on the word "denied," arguing that there is an important difference between denying an application after a hearing on the merits and refusing to consider an application at all. He said public records show that Toste never received a hearing on his commutation bid because a panel of parole board members "administratively screened out" his application along with four others.

"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," the concurrence said.

Court records show Toste was convicted of murdering Mavis Hardy, the mother of a friend. He then allegedly stole her car and was involved in two accidents, one of which killed 24-year-old law student Edward Tkacik.

He was also convicted of manslaughter for Tkacik's death, 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 challenged the manslaughter verdict, and the state's Supreme Court brief said relevant court records were destroyed.

Regardless, Tkacik's family opposed Toste's parole applications and the sentence modification. A victim's advocate spoke for Tkacik's brother before Judge Hernandez and made reference to "oral and written testimonies" that he provided for two "hearings" in 2013 and 2019, according to the state's brief.

"Although the defendant is of advanced age and has an intellectual disability, the trial court reasonably could have found that those factors were offset in its express consideration of the 'seriousness of the offenses' and their 'impact on the victims,' along with his lengthy disciplinary history in the prison setting, which indicate a lack of ability to conform his conduct to rules and expectations," the majority opinion said, quoting from Judge Hernandez's oral decision.

Justice McDonald criticized comments made by the prosecutor at the sentence modification hearing, noting with "deep concern" that he misstated the outcomes of unrelated parole board proceedings.

The prosecutor told Judge Hernandez that "there must be something that made them deny" Toste's application, adding that the board let so many people out of prison that any denial was surprising. The concurrence said that in reality, the board received 49 commutation applications in 2021 and granted only one.

"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," Justice McDonald wrote. "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."

Justice William H. Bright Jr. did not participate in the case. He wrote the opinion against Toste when he served as chief judge of the Connecticut Appellate Court.

Counsel for Toste and representatives of the Office of the Chief State's Attorney, Appellate Bureau, did not immediately respond to requests for comment.

Toste is represented by Naomi T. Fetterman.

The state is represented by Laurie N. Feldman and Asheley G. Pankratz 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.