Lee v. Commissioner of Correction , 173 Conn. App. 379 ( 2017 )

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DEAN S. LEE v. COMMISSIONER OF CORRECTION
(AC 38417)
DiPentima, C. J., and Sheldon and Blue, Js.
Argued March 21—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Craig A. Sullivan, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
BLUE, J. The petitioner, Dean S. Lee, appeals follow-
ing the denial of his petition for certification to appeal
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying certification to appeal and (2)
improperly denied his ineffective assistance of counsel
claim based on trial counsel’s asserted failure to request
certain pretrial bond increases. Because the petitioner
did not demonstrate that the habeas court abused its
discretion in denying the petition for certification to
appeal, we dismiss the appeal.
On appeal, the petitioner seeks credit for twenty-
seven days of presentence confinement pursuant to
General Statutes § 18-98d.1 The presentence confine-
ment for which he seeks credit occurred while he was
confined in lieu of bail for a charge on which he was
never sentenced. Instead, he subsequently was sen-
tenced for two distinct crimes that were committed
after he had posted bond in the first matter. Under
these circumstances, both the relevant statute, § 18-
98d, and considerations of public policy prohibit the
award of presentence confinement credit that the peti-
tioner seeks.
The following facts and procedural history are rele-
vant to this appeal. On three separate occasions in 2010
and 2011, the petitioner was arraigned in the New Haven
judicial district, geographical area number 23, on four
different charges.2 Here is the chronology of relevant
events:
•—September 2, 2010. The petitioner was arraigned
on a warrant charging him with possession of narcotics
with intent to sell. The petitioner was confined in lieu
of bond.3 We will refer to this case4 as case no. 1.
•—September 28, 2010. The petitioner posted bond
on case no. 1, having spent twenty-seven days in pretrial
confinement. This twenty-seven day period of pretrial
confinement turns out to be the cynosure of the case
now before us.
•—October 23, 2010. The petitioner sold narcotics to
an undercover officer. We will refer to the case arising
from this incident as case no. 2.
•—June 3, 2011. The petitioner was arraigned on case
no. 2.5 The court, Licari, J., set bond of $5,000. The
petitioner posted bond on the same date.
•—July 25, 2011. The petitioner allegedly twice sold
narcotics to cooperating witnesses. We will refer to the
cases arising from these incidents as case no. 3 and
case no. 4.
•—August 8, 2011. The petitioner was arraigned on
case no. 36 and case no. 4.7 The court, Frechette, J., set
bond of $100,000 in each case. At the arraignment, the
petitioner’s trial attorneys did not request bond
increases in cases nos. 1 and 2. The petitioner was
confined in lieu of bond.
•—November 21, 2011. The petitioner pleaded guilty
in cases nos. 2 and 3 to two counts of possession of
narcotics with intent to sell in violation of General Stat-
utes § 21a-277 (a). The court, Holden, J., sentenced
him in each case to ten years incarceration, execution
suspended after five years, followed by a conditional
discharge for three years. The sentences were to be
served concurrently. The total effective sentence, there-
fore, was ten years, execution suspended after five
years, followed by a conditional discharge for three
years. Imposition of the sentence was stayed until Janu-
ary 5, 2012. At sentencing, the petitioner requested that
the court order presentence confinement credit for the
confinement spent in case no. 1. In response, the court
stated that, ‘‘[h]e’s entitled to the credit afforded by the
Department of [Correction].’’
•—January 5, 2012. The stay was lifted on the senten-
ces imposed in cases nos. 2 and 3. The prosecutor
entered a nolle prosequi with respect to cases nos. 1
and 4 as well as an unrelated earlier charge.
•—July 22, 2013. The court granted a motion for ‘‘jail
credit’’ in case no. 2 and ordered credit from August 8,
2011 to October 6, 2011.
•—September 12, 2013. The court granted a motion
for ‘‘jail credit’’ in case no. 3 and ordered credit from
August 8, 2011 to January 5, 2012.
On July 26, 2012, the petitioner, initially self-repre-
sented, filed an application for a writ of habeas corpus
in the Superior Court for the judicial district of Tolland.
His amended petition, filed by appointed counsel,
claimed that his trial counsel had been ineffective
because ‘‘she failed to ensure that the petitioner would
receive presentence jail credit for the time he spent
incarcerated on all of his pending cases.’’ The amended
petition requested that the judgments imposed in cases
nos. 2 and 3 be vacated, that the petitioner be released
from confinement, and that the court grant ‘‘whatever
other relief that law and justice require.’’
The petition was tried to the habeas court, Fuger, J.
On August 13, 2015, the habeas court denied relief. It
stated that, ‘‘[t]here is no sentence of any court any-
where to which those twenty-seven days of jail credit
can be applied.’’ The habeas court further reasoned
that, ‘‘even if it was deficient performance not to request
an increase in bond [in cases nos. 1 and 2], there is no
prejudice that accrued to [the petitioner] because he
did, in fact, receive the jail credit he would have
received had the bond been raised in both files on
August 8, 2011.’’ On September 11, 2015, the habeas
court subsequently denied a petition for certification
to appeal. An appeal to this court followed.
At oral argument before this court, the petitioner
made it clear that he was no longer seeking to vacate
any of his convictions or sentences. The sole remedy
he seeks is a judicial order that twenty-seven days of
pretrial confinement credit, served with respect to case
no. 1, be applied to the sentences imposed on cases
nos. 2 and 3. The petitioner claims that the habeas
court abused its discretion in denying his petition for
certification to appeal from the denial of his petition
for a writ of habeas corpus with respect to his claim of
ineffective assistance of counsel. Specifically, he argues
that because this issue is debatable among jurists of
reason, a court could resolve the issues differently or
the issues should proceed further, the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal. We disagree.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [denial] of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must prove that the decision of
the habeas court should be reversed on the merits. . . .
To prove that the denial of his petition for certification
to appeal constituted an abuse of discretion, the peti-
tioner must demonstrate that the [resolution of the
underlying claim involves issues that] are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.
. . . In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 644–45, A.3d
(2017). With these principles in mind, we turn to the
substantive claims of the petitioner.
The petitioner claims that the habeas court improp-
erly concluded that, even if his trial counsel provided
deficient performance in not seeking bond increases
on cases nos. 1 and 2 at his August 8, 2011 arraignment,
he was not prejudiced as a result. With respect to the
issue of prejudice, we conclude that the petitioner’s
argument is unavailing and, therefore, his claim of inef-
fective assistance of counsel must fail. As a result, we
conclude that the habeas court did not abuse its discre-
tion in denying the petitioner’s certification to appeal
from the denial of the petition for habeas corpus. See
Duncan v. Commissioner of Correction, supra, 171
Conn. App. 635 (reviewing court considered merits of
petitioner’s claims as to performance and prejudice and
concluded that because there was no prejudice, peti-
tioner could not establish abuse of discretion in denial
of certification to appeal).
The question of whether a petitioner’s constitutional
right to the effective assistance of counsel has been
violated is governed by a familiar test. To succeed on
a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 674 (1984). The petitioner has the
burden to establish that ‘‘(1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.’’
(Emphasis in original.) Johnson v. Commissioner of
Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).
It is well established that § 18-98d ‘‘excludes from
[pretrial confinement] credit any time that a prisoner
spends incarcerated for a prior conviction before sen-
tencing on a separate, pending charge.’’ Washington v.
Commissioner of Correction, 287 Conn. 792, 800, 950
A.2d 1220 (2008). The petitioner does not argue that he
is entitled to such credit as a matter of statutory right.
Rather, he claims a violation of his right to effective
assistance of counsel under the sixth amendment to
the United States constitution, invoking Gonzalez v.
Commissioner of Correction, 308 Conn. 463, 68 A.3d
624, cert. denied sub nom. Dzurenda v. Gonzalez,
U.S. , 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013). Gonza-
lez, however, is readily distinguishable.
In that case, the petitioner, Odilio Gonzalez, like the
petitioner here, was arrested on a series of occasions
and, like the petitioner, was represented by counsel
who failed to request a bond increase on an earlier
charge when he was subsequently arraigned on a later
charge. Id., 465–66. Our Supreme Court held that the
constitutional requirement of effective assistance
requires counsel ‘‘to take the necessary and available
steps during critical stages of the proceedings to protect
his client’s statutory right to receive his full presentence
confinement credit.’’ Id., 491.
In the present case, the habeas court assumed for
the sake of argument, as we did, that the petitioner’s
trial counsel, in not requesting bond increases in cases
nos. 1 and 2 on August 8, 2011, failed to provide effective
representation. The similarities between Gonzalez and
the petitioner’s case, however, end there. Gonzalez was
sentenced on the charge for which he had been held
in pretrial confinement during the disputed period of
time. Our Supreme Court consequently found prejudice
on the ground that ‘‘counsel’s failure to request that the
bonds be raised at the third arraignment prejudiced the
petitioner by exposing him to seventy-three additional
days in jail for which he received no credit.’’ (Internal
quotation marks omitted.) Id., 490.
The petitioner in the present case, in contrast, was
not sentenced on the charge in case no. 1 for which he
had been held in confinement during the twenty-seven
days in dispute here. Even if his trial counsel success-
fully had requested a bond increase in case no. 1 on
August 8, 2011, the petitioner’s current sentences would
not have been reduced because no sentence was ever
imposed in case no. 1. His sentences instead were
imposed in cases nos. 2 and 3. Although the trial court
in its discretion could have considered such pretrial
confinement in its sentencing determination; Gonzalez
v. Commissioner of Correction, supra, 308 Conn.
467–68 n.3; the trial court here chose to leave calcula-
tion of the appropriate credit to the Department of
Correction. Under these circumstances, the petitioner
is unable to establish that his trial counsel’s failure to
request a bond increase on the charge in case no. 1
resulted in any ascertainable prejudice.
The petitioner attempts to counter this reasoning by
arguing that, ‘‘had such requests been made and
granted, there was a reasonable probability that the
petitioner and the state would have negotiated a plea
agreement’’ on the charge in case no. 1. This argument
is entirely speculative and is not based on any finding
of either the trial court or the habeas court.8 We also
note that, as mentioned, the petitioner at oral argument
before this court expressly abandoned any argument
that either his guilty pleas or his sentences should be
vacated on the ground of ineffective assistance of coun-
sel.9 The sole relief he seeks is a judicial order that the
sentences he is now serving in cases nos. 2 and 3 be
credited with the twenty-seven days of pretrial confine-
ment spent on the charge in case no. 1. Under these
circumstances, this is relief we are unable to grant.
The award of credit that the petitioner seeks not only
would be contrary to the express requirements of § 18-
98d, but also would conflict with well established public
policy. ‘‘The principle that extra time served on a crimi-
nal sentence may not be banked is strongly rooted in
the public policy that individuals should not be encour-
aged to commit crimes knowing they have a line of
credit that can be applied against future sentences.’’
(Internal quotation marks omitted.) Payton v. Albert,
209 Conn. 23, 34, 547 A.2d 1 (1988), overruled in part
on other grounds by Rivera v. Commissioner of Correc-
tion, 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000). That
public policy is particularly compelling in the context of
the present action. The crimes for which the petitioner
has been convicted and sentenced occurred after the
period of pretrial confinement for which he now seeks
credit. An order mandating such credit would involve
moral hazard. The knowledge of a person who has been
released on bond after a period of pretrial confinement
on an earlier charge that he now has a line of credit
that can be applied to a sentence received for future
crimes at least would increase marginally his incentive
(or reduce his disincentive) to commit such future
crimes. We do not choose to proceed down this path.
For these reasons, we conclude that the habeas court
properly rejected the pretrial confinement credit claim
made by the petitioner. Because no reasonable jurist
could disagree with this conclusion, we further deter-
mine that the habeas court did not abuse its discretion
in denying the certification to appeal with respect to
this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 18-98d (a) (1) provides in relevant part: ‘‘Any person
who is confined to a community correctional center or correctional institu-
tion for an offense committed on or after July 1, 1981 . . . because such
person is unable to obtain bail or is denied bail shall, if subsequently impris-
oned, earn a reduction of such person’s sentence equal to the number of
days which such person spent in such facility from the time such person
was placed in presentence confinement to the time such person began
serving the term of imprisonment imposed . . . .’’
2
A nolle prosequi was eventually entered on a fifth charge involving an
earlier arrest, which is unimportant for purposes of the pretrial confinement
credit issues presented by the petitioner in this appeal.
3
The record does not reflect the bond amount.
4
Docket No. CR10-0109371.
5
Docket No. CR11-0118215.
6
Docket No. CR11-01200324.
7
Docket No. CR11-0120325.
8
In addition to ignoring the absence of trial or habeas court findings, the
petitioner fails to discuss the mechanics of the alternative scenario he
proposes. The plea agreement into which the petitioner actually entered
involved pleas and concurrent sentences for two different crimes—the
charges in cases nos. 2 and 3. The alternative agreement he now proposes
would have involved a plea agreement involving only one crime—the charge
in case no. 1. We simply do not know whether the prosecutor and the court
would have agreed to such an arrangement if proposed. In any event, the
petitioner does not claim that his trial counsel was ineffective in failing to
propose an agreement along these lines on November 21, 2011. His sole
claim is that his trial counsel was ineffective for failing to request a bond
increase on August 8, 2011. These claims are entirely distinct.
9
In addition, there is no evidence in the record that the petitioner has,
at any stage of the proceedings, testified that, had he known he would not
be entitled to the presentence confinement credit he now seeks, he would
not have accepted the negotiated settlement in question.