Bigelow v. Commissioner of Correction

 DAMON BIGELOW v. COMMISSIONER
OF CORRECTION
(AC 37565)
Alvord, Keller and Dennis, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of several
criminal and motor vehicle charges, filed a second petition for a writ
of habeas corpus, claiming that his criminal trial counsel, Z, and his first
habeas counsel, T, had rendered ineffective assistance. The petitioner
alleged, inter alia, that T failed to raise claims that Z improperly advised
and inadequately represented him during plea negotiations and during
his plea canvass, and failed to file a motion for an examination for entry
into a certain diversionary substance abuse program. The petitioner also
alleged that T failed to raise a claim that Z was ineffective for failing
to request three days of presentence confinement credit. The habeas
court rendered judgment denying the petition and, thereafter, denied
his petition for certification to appeal from the habeas court’s judgment.
On appeal to this court, the petitioner claimed, inter alia, that the habeas
court had abused its discretion in denying his petition for certification
and improperly denied his habeas petition. Held that the habeas court
did not abuse its discretion in denying the petition for certification to
appeal, as the petitioner failed to demonstrate that the issues he raised
were debatable among jurists of reason, that a court could resolve those
issues differently, or that the questions he raised deserved encourage-
ment to proceed further, and, accordingly, his appeal was dismissed:
the record supported the habeas court’s factual findings underlying its
conclusion that Z provided appropriate advice pertaining to the petition-
er’s guilty plea, as Z testified about the petitioner’s willingness to accept
certain of the state’s plea offers, and about matters that Z generally
discusses with clients, such as the petitioner, in preparation of a plea
canvass, including those pertaining to the charges against them and the
possible sentences they could receive; moreover, notwithstanding the
petitioner’s claim that had Z failed to adequately investigate the death
of a certain witness on whom the state relied, significant other evidence
supported the petitioner’s underlying convictions, and nothing in the
record suggested that the petitioner would have opted for a trial, as he
had several pending cases that exposed him to significant jail time;
furthermore, the court’s findings with respect to the petitioner’s claim
regarding Z’s failure to file a motion for examination for entry into the
substance abuse program were not clearly erroneous, as the court could
credit Z’s testimony that no information was presented to him that would
support a good faith basis to request such an examination, and Z did
not improperly fail to seek three days of presentence confinement credit
for time that the petitioner spent in lockup, as his discharge date would
have remained unchanged because his longest concurrent sentence was
not the one to which the credit applied.
Argued April 5—officially released August 1, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
DENNIS, J. The petitioner, Damon Bigelow, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his second postconviction petition for a writ of habeas
corpus. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying his petition
for certification to appeal and (2) improperly denied
his petition for a writ of habeas corpus in which he
claimed that counsel in both his underlying criminal
prosecution and his first habeas proceeding rendered
ineffective assistance. Because the petitioner has failed
to demonstrate that the habeas court abused its discre-
tion in denying the petition for certification to appeal,
we dismiss the appeal.
The following facts underlying the petitioner’s con-
victions were set forth previously by this court. ‘‘In
early 2008, the petitioner was a defendant in a number
of criminal and motor vehicle matters pending in the
Superior Court.1 On September 24, 2008, while the peti-
tioner was representing himself, the state extended a
plea bargain to him that would have resolved all pending
charges in exchange for guilty pleas and a total effective
sentence of forty years incarceration, execution sus-
pended after fifteen years, to be followed by a five year
period of probation. The petitioner, who was free on
bond, was given time to consider the offer.
‘‘Two days later, on September 26, 2008, the police
executed a search and seizure warrant stemming from
suspected drug trafficking activities at the petitioner’s
condominium. During the execution of the search war-
rant, the petitioner was arrested after police found a
large quantity of heroin in a bedroom.2 As a result of
the additional charges, the state modified its original
plea offer to reflect the new drug charges. Considering
only the drug cases, the petitioner at trial would have
faced forty-six years of mandatory minimum incarcera-
tion with a maximum sentence of life. The state’s modi-
fied plea offer proposed that the petitioner actually
serve twenty years as opposed to the original offer
of fifteen.
‘‘On October 1, 2008, the petitioner retained the ser-
vices of Attorney Eugene Zingaro. Although the peti-
tioner initially appeared willing to accept the state’s
modified plea offer, Zingaro ultimately was successful
in restoring the original plea offer.’’ (Footnotes in origi-
nal.) Bigelow v. Commissioner of Correction, 146 Conn.
App. 737, 739, 80 A.3d 84 (2013). During the sentencing
hearing, the court thoroughly canvassed the petitioner,
determined that his pleas were knowing, intelligent and
voluntary, and accepted them.3 ‘‘On November 12, 2008,
the petitioner accepted the original offer, pleaded guilty,
and was sentenced to forty years incarceration, execu-
tion suspended after fifteen years, followed by five
years of probation.’’ Id., 739–40.
Following his convictions, the petitioner brought two
petitions for writs of habeas corpus.4 The petitioner’s
second such petition was filed on July 5, 2012, and
amended for the final time on September 14, 2014. In
essence, the petitioner argued that his first habeas coun-
sel, Melissa Toddy, rendered ineffective assistance by
failing to raise a claim regarding the deficient perfor-
mance of his trial counsel, Zingaro. Specifically, the
petitioner alleged that Toddy should have pursued such
a claim because Zingaro rendered ineffective assistance
in failing (1) to properly advise him regarding his guilty
plea, (2) to file an application to participate in a drug
treatment program on his behalf, (3) to seek jail credit
for three days that he spent in local lockup, and (4) to
properly investigate the death of an informant on whom
the state relied.
In the second habeas trial, which is the subject of this
appeal, the court heard testimony from the petitioner,
Zingaro, and Toddy. Following the trial, the court issued
a memorandum of decision denying the petitioner’s
claims of ineffective assistance of counsel. The habeas
court subsequently denied the petition for certification
to appeal. This appeal followed. Additional facts will
be set forth as necessary.
As an initial matter, we set forth the standard of
review and the legal principles that guide our resolution
of the petitioner’s appeal. ‘‘In Simms v. Warden, 229
Conn. 178, 187, 640 A.2d 601 (1994), we concluded that
[General Statutes] § 52-470 (b) prevents a reviewing
court from hearing the merits of a habeas appeal follow-
ing the denial of certification to appeal unless the peti-
tioner establishes that the denial of certification
constituted an abuse of discretion by the habeas court.
In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994), we incorporated the factors adopted by the
United States Supreme Court in Lozada v. Deeds, 498
U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991),
as the appropriate standard for determining whether
the habeas court abused its discretion in denying certifi-
cation to appeal. This standard requires the petitioner
to demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues
[in a different manner]; or that the questions are ade-
quate to deserve encouragement to proceed further.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013).
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Hankerson v. Commissioner of Correction, 150 Conn.
App. 362, 367, 90 A.3d 368, cert. denied, 314 Conn. 919,
100 A.3d 852 (2014).
With respect to the petitioner’s substantive claims,
‘‘[i]t is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)], this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the second prong of Strickland,
that his counsel’s deficient performance prejudiced his
defense, the petitioner must establish that, as a result
of his trial counsel’s deficient performance, there
remains a probability sufficient to undermine confi-
dence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . An ineffective assistance of coun-
sel claim will succeed only if both prongs [of Strickland]
are satisfied. . . . The court, however, may decide
against a petitioner on either prong, whichever is eas-
ier.’’ (Citations omitted; internal quotation marks omit-
ted.) Sanders v. Commissioner of Correction, 169
Conn. App. 813, 823, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A.3d 536 (2017).
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification
to appeal because it improperly rejected his claims of
ineffective assistance of counsel. Specifically, the peti-
tioner claims that the court abused its discretion in
denying the petition for certification to appeal because,
in the first habeas proceeding, Toddy failed to raise
claims that Zingaro rendered ineffective assistance in
that he failed (1) to adequately advise and represent
him during plea negotiations and in connection with his
eventual guilty plea, (2) to file a motion for examination
under a substance abuse diversionary program,5 and
(3) to request presentence confinement credit of
three days.
We turn to the merits of the petitioner’s claims, recog-
nizing that the claimed deficient performance regarding
his first habeas counsel must fail if the claims of ineffec-
tive assistance of his trial counsel are without merit.
See Lozada v. Warden, 223 Conn. 834, 842–43, 613 A.2d
818 (1992).
I
The petitioner first claims that Zingaro inadequately
advised him throughout the plea negotiation and inef-
fectively represented him when he pleaded guilty. Spe-
cifically, he argues that Zingaro rendered ineffective
assistance because he failed (1) to ensure that there
was a proper factual and evidentiary basis for each
of the charged offenses, (2) to adequately inform the
petitioner of the minimum and maximum sentence for
each charge,6 and (3) to adequately investigate the death
of Nicklaus Larson.7 The habeas court concluded that
Zingaro provided appropriate advice relating to the peti-
tioner’s guilty plea on the basis of the petitioner’s failure
to satisfy his burden of proof under Strickland. We
agree with the habeas court.
‘‘For ineffectiveness claims resulting from guilty
pleas, we apply the standard set forth in Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985),
which modified Strickland’s prejudice prong.’’ Baillar-
geon v. Commissioner of Correction, 67 Conn. App. 716,
721, 789 A.2d 1046 (2002). ‘‘To satisfy the performance
prong, the petitioner must show that counsel’s repre-
sentation fell below an objective standard of reason-
ableness. . . . A petitioner who accepts counsel’s
advice to plead guilty has the burden of demonstrating
on habeas appeal that the advice was not within the
range of competence demanded of attorneys in criminal
cases. . . . To satisfy the prejudice prong, the peti-
tioner must show a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. . . . Reasonable
probability does not require the petitioner to show that
counsel’s deficient conduct more likely than not altered
the outcome in the case, but he must establish a proba-
bility sufficient to undermine confidence in the out-
come. . . . The Hill court noted that [i]n many guilty
plea cases, the prejudice inquiry will closely resemble
the inquiry engaged in by courts reviewing ineffective-
assistance challenges to convictions obtained through
a trial. For example, where the alleged error of counsel
is a failure to investigate . . . the determination
whether the error prejudiced the defendant by causing
him to plead guilty rather than go to trial will depend
on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to
the plea. This assessment, in turn, will depend in large
part on a prediction whether the evidence likely would
have changed the outcome of a trial.’’ (Citations omit-
ted; internal quotation marks omitted.) McClellan v.
Commissioner of Correction, 103 Conn. App. 159, 162,
927 A.2d 992 (2007).
At the plea hearing, the petitioner responded in the
affirmative to Judge Reynolds’ canvass, which asked
him, inter alia, whether he was entering the plea volun-
tarily, whether he had had discussions regarding the
plea with Zingaro pertaining to the elements of the
charged offenses, the evidence the state had, and
whether Zingaro discussed the possible penalties,
including maximum periods of incarceration the
charges carried.8 At the conclusion of the canvass, the
court found that the petitioner’s plea was made ‘‘freely,
voluntarily, intelligently . . . with the effective assis-
tance of counsel, and [that] a factual basis does exist
to support [the plea].’’ The court then accepted the
guilty plea as to each charge, and the petitioner did
not object.
‘‘A court may properly rely on . . . the responses of
the [petitioner] at the time [he] responded to the trial
court’s plea canvass . . . .’’ (Internal quotation marks
omitted.) Carey v. Commissioner of Correction, 86
Conn. App. 180, 185, 860 A.2d 776 (2004), cert. denied,
272 Conn. 915, 866 A.2d 1283 (2005).9 ‘‘It is appropriate
to presume that in most cases counsel routinely
explains the consequences of a plea agreement.’’ Toles
v. Commissioner of Correction, 113 Conn. App. 717,
727, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d
1114 (2009).
In support of his argument that his guilty plea was
not knowingly made, the petitioner primarily points to
his testimony that he gave at the second habeas trial
regarding Zingaro’s failure (1) to explain to him the
minimum and maximum sentence for each offense, and
(2) to ensure that there was adequate evidentiary sup-
port for the charged offenses. That testimony clearly
conflicts with the statements that the petitioner made
during the plea canvass. More importantly, however,
the habeas court discredited the petitioner’s testimony
and concluded that ‘‘Zingaro provided appropriate
advice.’’ These findings are supported by the record.
Zingaro testified at the second habeas proceeding
that his usual practice in 2008, the time he represented
the petitioner, with respect to preparing his clients prior
to a plea canvass, was that he would discuss with his
client the ‘‘charges he was pleading to, the sentences,
the total combined, the total effective sentence, which
charges were mandatory, [and] which carried manda-
tory time.’’ Zingaro further testified that he did not
believe that the state’s recitation of the facts during
the petitioner’s plea hearing were inaccurate. He also
testified that if there was an error in the state’s recita-
tion of the facts or if the evidence did not support the
charges brought against the petitioner, he would have
raised those issues to the court. Moreover, Zingaro testi-
fied that the petitioner would have accepted the state’s
second offer of forty years imprisonment, suspended
after twenty years, and had no second thoughts about
accepting the third offer of forty years imprisonment,
suspended after fifteen years.
On the basis of the court’s canvass and its finding of
guilty at the plea hearing, without objection from the
petitioner, in addition to Zingaro’s testimony at the
habeas proceeding, we conclude that the habeas court’s
factual findings were not clearly erroneous.
Next, we briefly discuss the petitioner’s argument
that Zingaro failed to adequately investigate Larson’s
death. At the habeas trial, Zingaro testified that the state
was not exclusively relying on Larson’s testimony to
prove its case because it had other evidence, including
a written statement from Larson, and the testimony of
several police officers who witnessed drug transactions
between the petitioner and Larson. In Zingaro’s opinion,
the death of Larson did not significantly impact the
state’s case against the petitioner as a result.
In its memorandum of decision, the habeas court
stated: ‘‘The evidence alleged to have been withheld by
the prosecuting authority is the death of a Mr. Nicklaus
Larson, the person to whom the petitioner sold drugs
on his last arrest. Unfortunately for the petitioner’s
argument, the state clearly disclosed that fact in the
recitation of facts preceding the plea canvass before his
plea was accepted.’’ (Emphasis in original.) The court
further stated: ‘‘[T]he testimony by Mr. Larson was not
critical to the state proving that charge, as there were
several hand-to-hand transactions observed by the
undercover police officers. It is clear that the trial
defense counsel made due diligence in investigating
and understanding the facts surrounding the state’s
obviously strong case against the petitioner. This can-
not form the basis for any complaint of ineffective assis-
tance of trial defense counsel.’’
We agree with the habeas court’s conclusion relating
to this claim and need only address the petitioner’s
failure to satisfy the prejudice prong under Strickland.
See Sanders v. Commissioner of Correction, supra, 169
Conn. App. 821–23. Other than the petitioner’s own
testimony, nothing in the record suggests that the peti-
tioner would have opted for trial. At the time of the
petitioner’s guilty plea, the petitioner had several pend-
ing criminal cases that exposed him to significant jail
time. The petitioner’s guilty plea ultimately consoli-
dated and disposed of his numerous pending cases into
a sentence of forty years of imprisonment, execution
suspended after fifteen years. The habeas court stated
that ‘‘[a]ccepting this pretrial offer was prudent,’’ given
the substantial jail time he would have otherwise faced.
Moreover, although Larson’s death certainly did not
strengthen the state’s case, there was significant evi-
dence supporting the petitioner’s convictions, including
the testimony of several undercover officers who wit-
nessed the petitioner engage in hand-to-hand drug trans-
actions. Simply put, even if we were to assume that the
petitioner and his counsel were unaware of Larson’s
death, the petitioner’s claim that he would have pursued
a jury trial is speculative at best. Accordingly, this argu-
ment is without merit.
II
The petitioner next argues that Zingaro rendered inef-
fective assistance by failing to file a motion for examina-
tion for alcohol or drug dependency pursuant to the
Connecticut Alcohol and Drug Abuse Commission’s
diversionary program (CADAC).10 Specifically, he con-
tends that Zingaro rendered ineffective assistance
because he should have investigated the petitioner’s
personal history pertaining to substance abuse and
should have determined whether the petitioner would
have benefited from the program. We disagree.
In its memorandum of decision, the court noted that
‘‘in order to even be eligible for . . . CADAC one must
be addicted to substances at the time of the offense.
This record before this court is devoid of any evidence,
with the exception of the petitioner’s own self-serving
testimony, that the petitioner was even using drugs,
much less being addicted to them. In addition, the testi-
mony at this habeas trial from [Zingaro] and the testi-
mony at the petitioner’s first habeas trial clearly show
that the instant proceeding is the first time that there has
been any issue surrounding the petitioner’s potential
substance abuse addiction. This court, therefore, con-
cludes that any allegation of drug addiction was never
brought to the attention of the trial defense counsel, so
there would not even have been any reason to consider a
CADAC application. Furthermore, merely making an
application for CADAC does not guarantee that such
an application would have been accepted by the trial
court. Given the large number of criminal files that the
petitioner had amassed, his reputation as the major
drug dealer in Danbury, the large bond placed upon
him, and comments by the trial court, it would appear
to be most likely, indeed almost a certainty, that a
CADAC application would have been rejected by the
trial court, even had the examination shown he was
addicted to substances at the time he committed his
offenses (an unlikely finding based upon the totality of
the evidence). The interests of justice would not have
been served by treatment. To summarize, it is clear that
[Zingaro] did not have a good faith basis to make a
request for a [diversionary program] examination and,
further, had one been made it is unlikely that it would
have been granted even if made.’’ (Footnote omitted.)
With respect to Zingaro’s testimony, the court noted
that he ‘‘went to great lengths to describe his observa-
tions of the physical condition of the petitioner . . .
and his opinion that there was no way this man was a
drug abuser. Second, the testimony by [Zingaro] is that
no information was ever presented to him to support
a suspicion that a [diversionary program] examination
would reveal a substance abuse issue.’’ The court
expressly credited Zingaro’s testimony and found that
‘‘the statements by the petitioner are rejected as being
unworthy of belief.’’
‘‘As an appellate court, we do not reevaluate the credi-
bility of testimony, nor will we do so in this case. The
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given
to their testimony. . . . Furthermore, we are entitled
to presume that the trial court acted properly and con-
sidered all the evidence.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Palmenta
v. Commissioner of Correction, 152 Conn. App. 702,
707–708, 99 A.3d 1254, cert. denied, 314 Conn. 941, 103
A.3d 164 (2014).
The court expressly credited Zingaro’s testimony that
his personal observations did not lead him to conclude
that the petitioner was abusing drugs at the time Zingaro
represented him. Further, the only evidence suggesting
otherwise was the petitioner’s testimony, which the
court declined to credit. Because the habeas court is the
sole arbiter of credibility determinations, and nothing in
the record suggests that the court did not consider
all of the evidence, we thus conclude that the court’s
findings were not clearly erroneous. Accordingly, the
habeas court did not abuse its discretion in denying
the petition for certification to appeal with respect to
this claim.
III
Finally, the petitioner argues that he received ineffec-
tive assistance of counsel because Zingaro failed to
seek jail credit for three days that he spent in local
lockup. This argument fails for the following reasons.
In its memorandum of decision, the habeas court
rejected the petitioner’s claim regarding jail credit and
stated: ‘‘It is true that the petitioner was arrested on
[September 26, 2008] and held in the local lockup until
his arraignment in court on [September 29, 2008]. It is
also true that in order for the petitioner to receive any
credit for those three days, his counsel should have
requested it at the time of sentencing so the local lockup
credit could have been noted on the mittimus. It is clear
that [Zingaro] did not make such a request and that
normally this court would have found that to be defi-
cient performance. But since this local lockup credit
applied only to Docket No. CR-08-0133512 and the sen-
tence on that docket was five years concurrent to the
other sentences, this three day credit would not have
resulted in any reduction of the time that the petitioner
was required to serve. Consequently, there is no preju-
dice accruing to the petitioner.’’ (Internal quotation
marks omitted.)
The following legal principles guide our analysis. ‘‘If
more than one sentence is imposed on a prisoner, the
respondent calculates the incarceration period and dis-
charge date by applying the provisions of General Stat-
utes § 53a-38 (b), which provides in relevant part: Where
a person is under more than one definite sentence,
the sentences shall be calculated as follows: (1) If the
sentences run concurrently, the terms merge in and are
satisfied by discharge of the term which has the longest
term to run . . . . The merger concept embodied in
this provision simply requires that the respondent com-
pare the length of each sentence, after adjustment for
its authorized credits, in order to ascertain which is the
longest for the purpose of determining the prisoner’s
discharge date. . . . The merger process does not alter
the fact that concurrent sentences remain separate
terms of imprisonment which the legislature has permit-
ted to be served at one time.’’ (Citation omitted; internal
quotation marks omitted.) Harris v. Commissioner of
Correction, 271 Conn. 808, 819, 860 A.2d 715 (2004).
Even if the petitioner received the claimed presen-
tence confinement credit, that credit applied only to
his sentence relating to Docket No. CR-08-0133512. As
noted in the preceding paragraph, when sentences run
concurrently, ‘‘the terms merge in and are satisfied by
discharge of the term which has the longest term to
run . . . .’’ (Emphasis added.) General Statutes § 53a-
38 (b). That merger process clearly precludes the peti-
tioner from showing any prejudice resulting from any
alleged deficient performance because his discharge
date ultimately remains unchanged. See Harris v. Com-
missioner of Correction, supra, 271 Conn. 823. In short,
the lockup credit, if applied, would not affect the peti-
tioner’s discharge date because the longest term to run
was not his sentence relating to Docket No. CR-08-
0133512. Thus, the court did not abuse its discretion
as it relates to this claim.
In sum, the petitioner has failed to establish that the
issues he raised are debatable among jurists of reason,
that a court could resolve them in a different manner
or that the questions he raised are adequate to deserve
encouragement to proceed further. See Patterson v.
Commissioner of Correction, 150 Conn. App. 30, 34,
89 A.3d 1018 (2014). In light of our foregoing conclusion
that the petitioner’s claims against his trial counsel are
without merit, the claims pertaining to his first habeas
counsel necessarily fail. Accordingly, we conclude that
the court did not abuse its discretion in denying the
petition for certification to appeal from the judgment
denying his amended petition for a writ of habeas
corpus.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘The petitioner was charged with multiple counts of possession of narcot-
ics with intent to sell in violation of General Statutes § 21a-278 (b), assault
of a police officer in violation of General Statutes § 53a-167c, and disorderly
conduct in violation of General Statutes § 53a-183.’’ Bigelow v. Commis-
sioner of Correction, 146 Conn. App. 737, 739 n.1, 80 A.3d 84 (2013).
2
‘‘The petitioner was charged with possession of narcotics with intent to
sell in violation of General Statutes § 21a-278 (b).’’ Bigelow v. Commissioner
of Correction, 146 Conn. App. 737, 739 n.2, 80 A.3d 84 (2013).
3
The transcript of the plea canvass provides in relevant part:
‘‘The Court: Do you understand everything that’s going on here today?
‘‘[The Petitioner]: Yes, ma’am.
‘‘The Court: Have you had enough time to speak with your attorney?
‘‘[The Petitioner]: Yes, ma’am.
‘‘The Court: Did your attorney explain to you the elements of all these
offenses, the evidence the state has, and the possible penalties to you,
including maximum periods of incarceration?
‘‘[The Petitioner]: Yes, ma’am.
‘‘The Court: All right. Now, Attorney Zingaro, did you have time to do that?
‘‘Attorney Zingaro: Yes I did, Your Honor.
‘‘The Court: All right. Are you satisfied with the services of your attorney?
‘‘[The Petitioner]: Yes, ma’am. . . .
‘‘The Court: Okay. Do you understand, sir, by pleading guilty in all of
these files, you have waived certain rights?
‘‘[The Petitioner]: Yes, ma’am.’’
4
In the petitioner’s first petition for a writ of habeas corpus, he alleged
that his trial counsel was burdened by a conflict of interest as a result
of having represented him and his brother at the same time. Bigelow v.
Commissioner of Correction, supra, 146 Conn. App. 740–41. The habeas
court denied the petition for a writ of habeas corpus, but granted the petition
for certification to appeal. Id., 740. The petitioner appealed from that denial,
and this court affirmed the judgment of the habeas court. Id., 744.
5
See General Statutes § 17a-693 et seq.
6
The respondent, the Commissioner of Correction, argues that this court
is precluded from reviewing the petitioner’s claim that Zingaro rendered
ineffective assistance when he failed to inform the petitioner of the maximum
and minimum penalties because this claim was not raised before and decided
by the habeas court. Having reviewed the entire record, we conclude that
the petitioner’s argument is inextricably intertwined with the legal arguments
and claims litigated before and decided by the habeas court. Accordingly,
we conclude that this claim is reviewable on appeal. See Michael T. v.
Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015).
7
Larson was a confidential informant to whom the petitioner sold drugs
on his last arrest before he pleaded guilty in the underlying case.
8
See footnote 3 of this opinion.
9
‘‘In a related area, our Supreme Court has stated that the court need
not advise a defendant of every possible consequence of a plea. Although
a defendant must be aware of the direct consequences of a plea, the scope
of direct consequences is very narrow. . . . In Connecticut, the direct con-
sequences of a defendant’s plea include only the mandatory minimum and
maximum possible sentences . . . the maximum possible consecutive sen-
tence . . . the possibility of additional punishment imposed because of
previous conviction(s) . . . and the fact that the particular offense does not
permit a sentence to be suspended. . . . The failure to inform a defendant as
to all possible indirect and collateral consequences does not render a plea
unintelligent or involuntary in a constitutional sense.’’ (Internal quotation
marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717,
727 n.5, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).
10
See General Statutes § 17a-693 et seq.