State v. Hurdle

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STATE OF CONNECTICUT v. MARCUS HURDLE
(AC 44701)
Alvord, Prescott and Moll, Js.
Syllabus
Convicted, on pleas of guilty, of the crimes of robbery in the first degree
and conspiracy to commit robbery in the first degree, the defendant
appealed to this court from the judgment of the trial court, claiming,
inter alia, that the trial court improperly concluded that it lacked the
authority to award him presentence confinement credit pursuant to
statute (§ 18-98d). The defendant had been incarcerated on other convic-
tions when he entered into an agreement with the state under which
he would plead guilty to charges of robbery in the first degree and
conspiracy to commit robbery in the first degree in exchange for the
entry of a nolle prosequi as to all other charges he was facing. The trial
court accepted the pleas after canvassing the defendant, who indicated
that he understood the terms of the agreed upon sentence. At sentencing,
the defendant, for the first time, claimed that he was entitled to certain
presentence confinement credit. The court declined to award presen-
tence confinement credit and imposed the agreed upon sentence. Held:
1. The defendant could not prevail on his claim that the trial court, in
structuring his sentence, had the authority and discretion to account
for presentence confinement credit that the court determined to be
appropriate: under § 18-98d (c), the Commissioner of Correction has
the sole responsibility and authority to calculate and apply presentence
confinement credit toward the sentence that actually was imposed by
the court, as presentence confinement credit is not a part of a sentence
but a calculation of the amount of credited time a defendant already
has served toward completing that sentence, and, although § 18-98d
contains no language that explicitly bars a sentencing court from award-
ing presentence confinement credit, our courts have clearly established
that presentence confinement credit is a creature of statute; moreover,
the defendant presented no appellate authority in support of his assertion
that, because the trial court has broad authority to craft and impose
sentences, it also has the inherent authority to award presentence con-
finement credit, the legislature having expressly placed the authority to
apply presentence confinement credit in the hands of the Commissioner
of Correction; furthermore, although sentencing courts differ in their
views about how to address issues concerning presentence confinement
credit, including, as did one of the courts that imposed a prior sentence
against the defendant, by placing an order on the judgment mittimus
that the defendant was to be given presentence confinement credit, that
notation was not binding on the Commissioner of Correction, who has,
in the first instance, the authority to calculate and apply presentence
confinement credit.
2. The defendant failed to present any evidence to support his claim that
the trial court improperly accepted his guilty pleas and thereafter denied
his motion to withdraw them because there was no meeting of the
minds regarding the terms of the pleas: the plea agreement between
the defendant and the state did not include any offer or acknowledgment
by the state regarding presentence confinement credit, which defense
counsel acknowledged on the record, the prosecutor indicated that
presentence confinement credit was never part of the plea bargaining
discussions, and the defendant acknowledged more than once during
the court’s initial plea canvass that he understood the terms of the
agreed upon sentence.
3. The defendant could not prevail on his unpreserved claim that the trial
court’s plea canvass was constitutionally invalid because he was not
advised that his guilty pleas would operate as a waiver of his right to
a jury trial; although the court did not indicate that the waiver included
the right to a jury trial, the defendant acknowledged during the canvass
that he was waiving his right to a trial by pleading guilty, and, because
he was represented by counsel and had elected a jury trial as part of
his initial plea of not guilty, the record was sufficient to infer that he
understood that his waiver of a right to a trial meant the right to a
jury trial.
Argued November 8, 2022—officially released January 31, 2023
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of home invasion,
robbery in the first degree, conspiracy to commit rob-
bery in the first degree and criminal possession of a
firearm, and, in the second part, with being a persistent
dangerous felony offender, brought to the Superior
Court in the judicial district of Ansonia-Milford, where
the defendant was presented to the court, Brown, J.,
on pleas of guilty to robbery in the first degree and
conspiracy to commit robbery in the first degree; there-
after, the court denied the defendant’s motion for cer-
tain presentence confinement credit; subsequently, the
court, Brown, J., denied the defendant’s motion for
reconsideration or to withdraw the pleas and rendered
judgment in accordance with the pleas; thereafter, the
state entered a nolle prosequi as to the charges of home
invasion, criminal possession of a firearm and being a
persistent dangerous felony offender, and the defendant
appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Lisa F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Howard S. Stein, supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Marcus Hurdle, appeals
from the judgment of conviction, rendered following
his entry of guilty pleas pursuant to the Alford doctrine,1
of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (4) and conspiracy to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-48 and 53a-134 (a). The defendant claims
that the trial court improperly (1) determined that it
lacked the authority, in accordance with General Stat-
utes § 18-98d, to award him presentence confinement
credit, (2) accepted his guilty pleas and denied his sub-
sequent motion for jail credit or to withdraw his pleas,
despite his contention that there was never a ‘‘meeting
of the minds’’ regarding the terms of his plea agreement
with the state, and (3) violated his constitutional rights
by failing to advise him during his plea canvass that his
guilty pleas would operate as a waiver of his right to
a trial by jury. We affirm the judgment of conviction.
The following undisputed facts and procedural his-
tory are relevant to our consideration of the defendant’s
claims. On January 11, 2016, the defendant was sen-
tenced in two criminal files factually unrelated to the
present matter.2 He received concurrent sentences of
five years of incarceration, execution suspended after
nine months, followed by three years of probation. On
July 20, 2018, the defendant admitted to violating the
terms of his probation and was released pending sen-
tencing on a Garvin plea agreement (probation files).3
Less than one month later, on August 16, 2018, the
defendant participated in a robbery in West Haven that
led to the conviction now under review. Although the
defendant and his coconspirators initially evaded the
police following the robbery, the defendant was appre-
hended later that day by the New Haven police.4
Because of his actions during the arrest in New Haven,
the defendant was charged in the judicial district of
New Haven in Docket No. CR-XX-XXXXXXX with interfer-
ing with a police officer and with criminal possession
of a pistol or revolver in violation of General Statutes
§ 53a-217c (pistol possession file). He was detained on
bond on those charges.
Subsequently, on October 24, 2018, while still
detained on bond in the pistol possession file, the defen-
dant was arrested by warrant in connection with the
West Haven robbery. He was charged in the judicial
district of Ansonia-Milford in Docket No. CR-XX-XXXXXXX
with home invasion in violation of General Statutes
§ 53a-100aa (a) (1), robbery in the first degree in viola-
tion of § 53a-134 (a) (4), conspiracy to commit robbery
in the first degree in violation of §§ 53a-48 and 53a-134
(a), and criminal possession of a firearm in violation
of General Statutes § 53a-217 (a) (1) (robbery file). The
state also filed a substitute part B information charging
the defendant as a persistent dangerous felony offender
under General Statutes § 53a-40 (a) (1). At his arraign-
ment on the charges in the robbery file, the court set
a $300,000 bond and also raised the defendant’s bonds
in his other files.
On October 26, 2018, the court appointed an attorney
for the defendant and confirmed that bond had been
set in the robbery and probation files. The defendant
subsequently entered not guilty pleas in the robbery
file and elected a jury trial. On December 19, 2018, the
defendant posted bond and was released.
Sentencing with respect to the probation files initially
was scheduled for February 20, 2019. The defendant,
however, arrived late and was intoxicated. Accordingly,
the court raised the defendant’s bond and continued
the matter. On February 26, 2019, the court terminated
the defendant’s probation and sentenced him in the
probation files to concurrent terms of three and one-
half years of incarceration. He began to serve those
sentences while awaiting resolution of the charges in
the robbery and pistol possession files.
On May 15, 2019, in the pistol possession file, the
defendant pleaded guilty under the Alford doctrine to
criminal possession of a pistol or revolver. Following
a plea canvass, the court, Cradle, J., sentenced the
defendant to ten years of incarceration, two years of
which were mandatory, execution suspended after
three and one-half years, followed by three years of
conditional discharge. The court, in response to a ques-
tion by the defendant about jail credit, stated that the
defendant could ‘‘get [his] jail credit for the time that
[he had] been confined on bond on this matter.’’ The
order for jail credit was reflected on the mittimus.5
On October 29, 2020, as part of a plea agreement with
the state and in order to resolve his remaining criminal
charges on the robbery file, the defendant pleaded guilty
under the Alford doctrine to robbery in the first degree
and conspiracy to commit robbery in the first degree.
As part of the plea agreement, the state agreed to enter
a nolle prosequi on all remaining charges, including the
charge of being a persistent dangerous felony offender.
The court, Brown, J., accepted the pleas following a
thorough canvass during which the defendant repeat-
edly was advised of the terms of the agreed upon sen-
tence, which was twelve years of incarceration, execu-
tion suspended after seven and one-half years, followed
by five years of probation, which would run concur-
rently with all of the sentences he already was serving.
On two separate occasions, following the court’s recita-
tion of the agreed upon sentence, the defendant verbally
indicated that he understood the terms. During this
proceeding, neither the defendant nor his counsel sug-
gested that the plea agreement included a provision
regarding jail credit. The matter was continued to Janu-
ary 28, 2021, for sentencing.
On that date, the defendant raised to the court, for
the first time, his belief that he was entitled to certain
presentence confinement credit in the present case.
Specifically, after the court had given the defendant
an opportunity to address the court, defense counsel
indicated that he had a ‘‘few more comments.’’ Counsel
concluded those comments with the following: ‘‘The
final thing that I would say is that there was discussion
of making the sentence run with the other sentences.
And I contacted records at [the Department of Correc-
tion (department)], and they instructed me that you can
order a jail credit going back to those dates. And I have
those dates for the court, if so inclined. The arrest date
of August 17, 2018, through December 19, 2018, at which
time [the defendant] bonded out. And then he was read-
mitted on February 20, 2019, and the jail credit can be
ordered from then to [the present].’’ The prosecutor
indicated in his response that presentence confinement
credit ‘‘was not bargained for,’’ meaning that the issue
was not part of the plea agreement between the defen-
dant and the state, and that the court’s practice in the
past had always been to ‘‘[defer] to the [department]
with regard to the calculation of jail credit.’’ The prose-
cutor also took the position that the defendant already
had received ‘‘every single credit from . . . every judge
who has sentenced him with regard to his violations of
probation [and] the gun charges he picked up . . . .’’
The court indicated its intent to impose a sentence
at that time, stating: ‘‘So, there is an agreed upon sen-
tence. I am going to impose that agreed upon sentence.
I am also going to allow the department to impose
whatever presentence credit the department feels is
appropriate. You’re obviously entitled to presentence
credit. I’m going to let them make that determination.
. . . I’m not going to do that on the record.’’ At that
time, the defendant interrupted and complained that
he had been told that he would ‘‘receive all jail credit
if [he] agree[d] to the [plea] deal.’’ The prosecutor reiter-
ated that the state had never made any representations
regarding presentence confinement credit as part of the
plea negotiations. At the request of defense counsel,
the court continued the matter without imposing sen-
tence to afford counsel additional time to consult with
the defendant and to review his file.
The defendant subsequently filed a motion asking the
court to order that presentence confinement credit be
applied to the sentence imposed or, alternatively, to
allow him to withdraw his pleas. On February 18, 2021,
the court conducted a hearing on the defendant’s
motion. During that hearing, defense counsel made
clear that, although he had indicated to the defendant
that he would pursue any available presentence confine-
ment credit, ‘‘I did not tell him there was an agreement
for jail credit. There was not, and I can’t represent that
there was.’’ The court denied the defendant’s motion
regarding presentence confinement credit, denied the
defendant’s request to withdraw his pleas, and sen-
tenced the defendant, in accordance with the plea
agreement, to a total effective term of twelve years of
imprisonment, suspended after seven years and one-
half years, and five years of probation to run concur-
rently with all other sentences the defendant was then
serving. The defendant subsequently filed the present
appeal.
I
The defendant first claims that the court improperly
determined that it lacked the authority to award him
presentence confinement credit at sentencing pursuant
to § 18-98d. The defendant argues that a sentencing
court has both the inherent authority and broad discre-
tion to structure its sentences within statutory limits,
and that this authority necessarily must include the
discretion to account for presentence confinement
credit that the court determines to be appropriate. The
state responds that the court’s conclusion that it lacked
authority to calculate and order presentence confine-
ment credit at the time of sentencing comports with
statutory law.6 We agree with the state.
No appellate court has answered unequivocally
whether, in crafting an appropriate and legal sentence, a
sentencing court has the authority to order presentence
confinement credit to which a defendant claims he is
entitled. See Gooden v. Commissioner of Correction,
169 Conn. App. 333, 339–40 n.3, 150 A.3d 738 (2016)
(whether sentencing authority includes ability to award
jail credit at time of sentencing is open issue). In
answering that question, we do not start with an entirely
blank canvas. Rather, we are guided by the relevant
statute as well as our prior decisional law.7
A defendant’s entitlement to, and the application of,
presentence confinement credit is governed by § 18-
98d. Because the periods of confinement at issue in the
present case occurred after July 1, 1981, but prior to
October 1, 2021, the applicable portion of § 18-98d is
subparagraph (a) (1) (A), which provides in relevant
part: ‘‘Any person who is confined to a community cor-
rectional center or a correctional institution for an
offense committed on or after July 1, 1981, and prior
to October 1, 2021, under a mittimus or because such
person is unable to obtain bail or is denied bail shall,
if subsequently imprisoned, 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 imprison-
ment imposed; provided (i) each day of presentence
confinement shall be counted only once for the purpose
of reducing all sentences imposed after such presen-
tence confinement; and (ii) the provisions of this sec-
tion shall only apply to a person for whom the existence
of a mittimus, an inability to obtain bail or the denial
of bail is the sole reason for such person’s presentence
confinement, except that if a person is serving a term
of imprisonment at the same time such person is in
presentence confinement on another charge and the
conviction for such imprisonment is reversed on appeal,
such person shall be entitled, in any sentence subse-
quently imposed, to a reduction based on such presen-
tence confinement in accordance with the provisions
of this section. . . .’’
Of particular relevance to the issue now before us is
subsection (c) of § 18-98d, which provides: ‘‘The Com-
missioner of Correction shall be responsible for ensur-
ing that each person to whom the provisions of this
section apply receives the correct reduction in such
person’s sentence; provided in no event shall credit be
allowed under subsection (a) of this section in excess
of the sentence actually imposed.’’ Thus, subsection (c)
expressly and unequivocally mandates that it is the
Commissioner of Correction (commissioner) who is
responsible for ensuring that a defendant receives all
presentence confinement credit due under the statute
and, importantly, that any such credit be applied as a
‘‘reduction in such person’s sentence.’’ We construe this
language to mean that any applicable credit is to be
calculated and later applied toward whatever sentence
actually was imposed by the court and not by reducing
the sentence prior to its imposition. This construction
is consistent with our Supreme Court’s statement in
Washington v. Commissioner of Correction, 287 Conn.
792, 950 A.2d 1220 (2008), that the petitioner in that
case had made an ‘‘erroneous assumption that, pursuant
to § 18-98d, the petitioner [was] entitled to have . . .
presentence confinement credit applied to his senten-
ces in such a manner as to actually advance his release
date from prison. . . . [Section] 18-98d does not entitle
the petitioner to that treatment but merely confers on
him a right to have any days spent in presentence con-
finement applied once, upon imposition, to reduce the
sentences imposed.’’ (Emphasis omitted.) Id., 830. In
other words, presentence confinement credit is not a
part of a sentence; it is a calculation of the amount of
credited time a defendant already has served toward
completing that sentence.
Although it is true that § 18-98d contains no language
that explicitly bars a sentencing court from awarding
presentence confinement credit, we previously have
stated that ‘‘[o]ur courts have clearly established that
presentence [confinement] credit is a creature of statute
. . . .’’ (Internal quotation marks omitted.) State v. Des-
hawn D., 136 Conn. App. 373, 380, 44 A.3d 907 (2012).
If the legislature had wanted to authorize sentencing
courts to calculate and apply presentence confinement
credit as part of their sentencing function, it presumably
could have included express language granting such
authority and/or responsibility. Furthermore, we agree
with the state that ‘‘[i]t would defy reason and logic to
allow trial courts unfettered discretion to order presen-
tence confinement credit, yet regulate the department
. . . in carrying out the administrative function of cal-
culating and applying such credit.’’
Our construction of § 18-98d as granting the sole
responsibility and authority to the commissioner to cal-
culate and apply presentence confinement credit is fur-
ther buttressed by a number of practical considerations.
First, as the present case demonstrates, it often will be
difficult for a court to determine whether and to what
extent a defendant may be statutorily entitled to jail
credit. The record before a sentencing court may not
reflect to what extent a defendant with multiple crimi-
nal files has already received jail credit in another file.
The sentencing court, without conducting an investiga-
tion, has no way of verifying the precise dates that a
defendant entered a given facility or when he may have
been released on bond. The necessary records to make
such determinations generally are not readily available
to a court at the time of sentencing. Moreover, the court
reasonably should not rely on factual representations
made by counsel, who themselves may not have accu-
rate or complete information necessary to calculate a
defendant’s entitlement to jail credit. The information
necessary to make an accurate calculation regarding
presentence confinement credit is in the hands of the
department, and, thus, as recognized by the legislature
in enacting § 18-98d, the commissioner is the proper
party to ‘‘ensur[e] that each person to whom the provi-
sions of [§ 18-98d] apply receives the correct reduction
in such person’s sentence . . . .’’ General Statutes § 18-
98d (c).
Although the defendant acknowledges subsection (c)
of § 18-98d and its clear designation of the commis-
sioner as the authority charged with applying presen-
tence confinement credit, he nonetheless urges us to
hold that the sentencing court, which has broad discre-
tion to craft and impose sentences, also can directly
account for presentence confinement credit as a part
of the sentencing process and that the court’s refusal
to do so in the present case was an abuse of discretion.
We do not find any of the defendant’s arguments in
support of this proposition persuasive.
First, the defendant argues that, just as a sentencing
court typically has the discretion and authority to deter-
mine whether sentences will run concurrently or con-
secutively, it has the inherent authority to award presen-
tence credit as it sees fit. We do not consider this an
apt analogy. ‘‘Determining whether two sentences will
be concurrent or consecutive is part of the judicial
function of imposing sentences upon a convict and is
a matter for the determination of the court.’’ (Internal
quotation marks omitted.) State v. Banks, 59 Conn. App.
145, 150, 763 A.2d 1046 (2000). Further, this authority
has long been recognized at common law and is
expressly authorized by statute. See General Statutes
§ 53a-37. By contrast, presentence confinement credit
is strictly a creature of statute, and any right to such
credit is a ‘‘matter of legislative grace . . . .’’ Harris
v. Commissioner of Correction, 271 Conn. 808, 833,
860 A.2d 715 (2004). As such, ‘‘the manner in which
[presentence confinement credits] are applied [toward]
a sentence and the proscription against double counting
are properly determined by the legislature.’’ Id. As we
have already indicated, the legislature has expressly
placed the authority to apply presentence confinement
credit in the hands of the commissioner.
Second, the appellate cases relied on by the defen-
dant to argue that a sentencing court has the authority
and/or discretion to award presentence confinement
credit are not direct criminal appeals like the present
case but appeals from decisions on petitions for writs
of habeas corpus that address various claims that the
commissioner—not a sentencing court—either has mis-
calculated or misapplied presentence confinement
credit. Such decisions clearly are inapposite to the issue
before us. For example, the defendant states that James
v. Commissioner of Correction, 327 Conn. 24, 29, 170
A.3d 662 (2017), ‘‘is a quintessential example of the
appropriate exercise of a trial court’s discretion.’’
(Emphasis added.) But James contains no relevant dis-
cussion pertaining to whether a sentencing court has
the authority to calculate and award presentence con-
finement credit. The sole issue in James was whether
the commissioner properly calculated and applied such
credit. The defendant cites no appellate authority hold-
ing that a sentencing court has the discretion to calcu-
late and apply presentence confinement credit at sen-
tencing.
Finally, we are aware that trial courts in this state
have differing views about how to address issues con-
cerning presentence confinement credit raised at sen-
tencing. Some trial courts, consistent with the position
that we have taken, regularly refuse to address jail
credit as part of sentencing because they conclude that
it is not ‘‘within the power of a Superior Court judge
to do so.’’ Gooden v. Commissioner of Correction,
supra, 169 Conn. App. 339 n.3.8
Other sentencing courts have taken the view that
they have authority to order that a defendant be given
jail credit by placing an order to that effect on the
judgment mittimus. The court that sentenced the pres-
ent defendant in the pistol possession file seemingly
took this approach. In light of our conclusion that the
authority to calculate and apply presentence confine-
ment credit lies, at least in the first instance,9 with the
commissioner, any such notation would not be binding
on the commissioner.
Still other courts have endeavored to avoid the issue
of authority to order presentence confinement credit
by adjusting the actual sentence that it imposes, thereby
reducing the sentence in an amount roughly equal to
the presentence confinement credit sought. By way of
example, a court that is considering the acceptance of
a plea agreement entered into between the state and a
defendant may choose to resolve the defendant’s
request for an order for presentence confinement credit
by way of a different sentencing structure that reduces
the previously agreed upon sentence offered by the
state by some additional amount to assuage the defen-
dant without overstepping the court’s authority regard-
ing such credit. Whether this approach is a viable
option, however, will depend on the particulars of the
plea agreement with the state and the charges pending
against the defendant.10
In sum, the commissioner, rather than the sentencing
court, is the proper authority to determine a defendant’s
eligibility for presentence confinement credit and to
apply such credit against a defendant’s sentence after
the sentence is imposed. The defendant in the present
case cannot demonstrate that the sentencing court
improperly concluded that it lacked the authority to
account for his claim to presentence confinement credit
when imposing sentence or that it abused any discretion
it had by refusing to note on the mittimus that the
commissioner should award the defendant any such
credit, which the commissioner already had a statutory
obligation to do under § 18-98d. If the defendant
believes that the commissioner has not properly applied
all presentence confinement credit to which he is statu-
torily entitled toward the completion of his sentence,
the defendant can raise this issue in an appropriate
habeas action.
II
The defendant next claims that the court improperly
accepted his guilty pleas, and later denied his motion
to withdraw his pleas, because there never was a ‘‘meet-
ing of the minds’’ regarding the terms of the pleas. The
state responds, inter alia, that the terms of the plea
agreement, as reflected in the record, were understood
by all parties and did not include presentence confine-
ment credit.11 We agree with the state and, accordingly,
reject the defendant’s claim.
In Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct.
495, 30 L. Ed. 2d 427 (1971), the United States Supreme
Court stated that ‘‘the adjudicative element inherent in
accepting a plea of guilty, must be attended by safe-
guards to insure the defendant what is reasonably due
in the circumstances. Those circumstances will vary,
but a constant factor is that when a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled.’’ Moreover, ‘‘[t]he validity of plea bargains
depends on contract principles. . . . Thus, [p]rinciples
of contract law and special due process concerns for
fairness govern our interpretation of plea agreements.’’
(Citation omitted; internal quotation marks omitted.)
State v. Stevens, 278 Conn. 1, 7–8, 895 A.2d 771 (2006).
It is axiomatic that, to form a binding and enforceable
contract, there must be a mutual assent, or a ‘‘ ‘meeting
of the minds’ ’’ between the contracting parties. Com-
puter Reporting Service, LLC v. Lovejoy & Associates,
LLC, 167 Conn. App. 36, 44, 145 A.3d 266 (2016).
Because the existence of a contract is a factual determi-
nation made by the court, our review is limited to
whether the court’s decision was clearly erroneous in
light of the existing evidence. See, e.g., Senco, Inc. v.
Fox-Rich Textiles, Inc., 75 Conn. App. 442, 445, 816 A.2d
654, cert. denied, 263 Conn. 916, 821 A.2d 770 (2003).
The defendant’s claim falters on the fact that the
defendant has failed to direct us to any evidence that
tends to support his claim. To the contrary, the record
before us reflects that the plea agreement negotiated
between the state and the defendant, in fact, did not
include any offer or acknowledgment by the state
regarding presentence confinement credit.12 Defense
counsel acknowledged on the record that the plea
agreement between the state and the defendant did not
include any agreement between the parties regarding
presentence confinement credit. The prosecutor con-
curred, indicating to the sentencing court that the pre-
sentence confinement credit requested by the defen-
dant had never been part of the plea bargaining
discussions and that the defendant had been warned
of the likelihood of his serving ‘‘dead time’’13 between
sentencing in the other files and his sentencing in the
present case. Moreover, defense counsel unequivocally
indicated to the court that he had never explicitly told
the defendant that the state’s offer would be reduced
at sentencing by jail credit but only that he would make
an effort to have the court order presentence confine-
ment credit at the time of sentencing. Finally, and most
significantly, during his initial plea canvass, the defen-
dant acknowledged more than once that he understood
that the agreed upon sentence was for a term of incar-
ceration of twelve years of imprisonment, suspended
after seven and one-half years, with five years of proba-
tion. That is the sentence that was bargained for, and
that is the sentence that the defendant in fact received.
In short, there is simply nothing in the record before the
sentencing court or this court to support the defendant’s
assertion that there was no meeting of the minds with
respect to the terms of the plea agreement such that
the court should have found the plea agreement unen-
forceable. Accordingly, the defendant’s claim fails.
III
Finally, the defendant claims that the court improp-
erly violated his constitutional rights by failing to advise
him during the plea canvass that his guilty pleas would
operate as a waiver of his constitutional right to a jury
trial. Although the defendant acknowledges that the
court asked him as part of the canvass whether he
understood that, by pleading guilty, he was waiving his
right to a trial, the defendant argues that the court
never clearly indicated that this waiver included giving
up his right to a jury trial, thus rendering the plea
canvass constitutionally invalid. We disagree.
As a preliminary matter, the defendant concedes that
this claim was not properly preserved because he never
raised it as an issue in his motion to withdraw his pleas.
He nevertheless requests review pursuant to Golding14
or the plain error doctrine. See Practice Book § 60-
5.15 We conclude that, although the defendant’s claim
satisfies the first and second prongs of Golding because
the record is adequate for review and the claim is of
constitutional magnitude, the defendant is not entitled
to reversal of the judgment under the third prong of
Golding or the plain error doctrine because he cannot
establish that the court’s canvass was improper, let
alone constitutionally insufficient.
‘‘Several federal constitutional rights [as enunciated
in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969)] are involved in a waiver that
takes place when a plea of guilty is entered in a state
criminal trial. First, is the privilege against compulsory
self-incrimination . . . [s]econd, is the right to trial by
jury . . . [t]hird, is the right to confront one’s accusers.
. . .16 Further, under the Connecticut rules of practice,
a trial judge must not accept a plea of [guilty or] nolo
contendere without first addressing the defendant per-
sonally and determining that the plea is voluntarily
made under Practice Book § [39-20] and that the defen-
dant fully understands the items enumerated in Practice
Book § [39-19].’’ (Citation omitted; footnote added;
internal quotation marks omitted.) State v. Badgett, 200
Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940,
107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).
In State v. Badgett, supra, 200 Conn. 419–20, our
Supreme Court rejected a claim that was nearly identi-
cal to the one now raised by the defendant. Specifically,
the defendant in Badgett, who had entered conditional
pleas of nolo contendere, raised as his ‘‘principal consti-
tutional claim’’ on appeal that the court had not properly
informed him that his plea operated as a waiver of his
right to a trial by jury because, during his plea canvass,
the court asked him only if he understood that he was
‘‘giving up [his] right to trial at this present time’’ without
making any specific reference to a right to a ‘‘jury trial.’’
(Internal quotation marks omitted.) Id., 418–19. That
omission, the defendant argued, ‘‘prevented him from
making a knowing waiver of the right and, therefore,
rendered his plea constitutionally defective.’’ Id., 419.
Our Supreme Court stated that, although it did ‘‘not
condone the court’s failure expressly to reference the
right to a ‘jury’ trial, we conclude that the inquiry was
constitutionally sufficient under the circumstances of
th[e] case.’’ Id. In reaching that conclusion, our Supreme
Court reasoned ‘‘that the trial court’s express mention
of waiver of the right to trial, combined with the defen-
dant’s prior election for a jury trial, his experience with
criminal proceedings and apparently adequate repre-
sentation by counsel’’ rendered the canvass constitu-
tionally sufficient. (Emphasis in original.) Id., 420.
Following Badgett, this court similarly has rejected
claims like the one advanced by the defendant in the
present case, provided that the record contained similar
indicia from which to infer that the defendant under-
stood that his waiver of his right to a trial meant the
right to a jury trial. See State v. Lage, 141 Conn. App.
510, 525, 61 A.3d 581 (2013) (court’s canvass was consti-
tutionally sufficient despite court’s failure to use modif-
ier ‘‘jury’’ in informing defendant that guilty plea would
waive his right to trial); State v. McElyea, 40 Conn. App.
60, 63, 668 A.2d 742 (same), cert. denied, 236 Conn.
920, 674 A.2d 1327 (1996). But see State v. Smith, 83
Conn. App. 411, 416–17, 849 A.2d 918 (acknowledging
that, ‘‘[a]s a general matter . . . the court’s failure to
use the term jury trial does not in and of itself render
a plea involuntary’’ but declining to follow Badgett
because defendant ‘‘was arraigned, entered a plea and
was sentenced on the same day . . . was not repre-
sented by counsel, and at no point in the proceeding
did he elect a jury trial or show any understanding
that he had a right to one’’ (citations omitted; internal
quotation marks omitted)), cert. denied, 271 Conn. 940,
861 A.2d 516 (2004).
Under the facts of the present case, in which the
defendant was represented by counsel and had elected
a jury trial as part of his initial plea of not guilty, Badgett
and its progeny are applicable and binding on this court.
The defendant duly recognizes this, articulating the fol-
lowing in his brief: ‘‘The defendant acknowledges a line
of case law from [the Appellate Court] and the Supreme
Court in which representation by counsel has been held
adequate to make up for a defective plea canvass. This
line of case law is at variance with federal case law
interpreting this federal constitutional right but is con-
trolling. This issue is raised for the sake of future
review.’’ (Emphasis added.)
‘‘[I]t is axiomatic that this court, as an intermediate
body, is bound by Supreme Court precedent and [is]
unable to modify it . . . . [W]e are not at liberty to
overrule or discard the decisions of our Supreme Court
but are bound by them. . . . [I]t is not within our prov-
ince to reevaluate or replace those decisions.’’ (Internal
quotation marks omitted.) Anderson v. Commissioner
of Correction, 148 Conn. App. 641, 645, 85 A.3d 1240,
cert. denied, 311 Conn. 945, 90 A.3d 976, cert. denied
sub nom. Anderson v. Dzurenda, 574 U.S. 883, 135 S.
Ct. 201, 190 L. Ed. 2d 155 (2014). Similarly, it is the
policy of this court that one panel of this court cannot
overrule or decline to follow a prior panel’s holding.
See, e.g., State v. White, 215 Conn. App. 273, 304–305,
283 A.3d 542 (2022). We are unpersuaded by the defen-
dant’s attempts to distinguish the present case from
Badgett and its progeny and, thus, must leave for our
Supreme Court the defendant’s question of whether
courts in this state should implement a new and more
rigorous standard for evaluating the sufficiency of a
plea canvass.17 Because the defendant’s claim fails as
a matter of settled law, he cannot satisfy the third prong
of Golding or the more stringent standard for relief
pursuant to the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The defendant was convicted in the judicial district of Ansonia-Milford
in Docket No. CR-XX-XXXXXXX of assault in the third degree in violation of
General Statutes § 53a-61 and criminal violation of a protective order in
violation of General Statutes § 53a-223, and in Docket No. CR-XX-XXXXXXX
of criminal violation of a protective order in violation of § 53a-223. It is
axiomatic that we may take judicial notice of the defendant’s various prior
criminal files to the extent that doing so aids our consideration of the claims
raised on appeal. See Echeverria v. Commissioner of Correction, 193 Conn.
App. 1, 3 n.1, 218 A.3d 1116, cert. denied, 333 Conn. 947, 219 A.3d 376 (2019).
3
See State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997). ‘‘A Garvin
agreement is a conditional plea agreement that has two possible binding
outcomes, one that results from the defendant’s compliance with the condi-
tions of the plea agreement and one that is triggered by his violation of a
condition of the agreement.’’ (Internal quotation marks omitted.) State v.
Stevens, 278 Conn. 1, 7, 895 A.2d 771 (2006).
4
The prosecutor provided the court with the following factual basis for
the defendant’s pleas related to the robbery. On August 16, 2018, at approxi-
mately 5:18 a.m., the West Haven police were called to the Econo Lodge
motel on Highland Street in West Haven. At that time, they came into contact
with the victim, a New York resident who was visiting a local acquaintance,
Jennifer Torres. Torres came to the victim’s motel room with another
woman. Shortly after arriving, Torres excused herself from the room, follow-
ing which two men, one of whom was the defendant, came in. One of the
men was armed with a handgun and proceeded to pistol-whip the victim.
Both men ransacked the room, stealing, among other things, a watch and
some money. After the four individuals left, the victim contacted the police.
The police, who were familiar with Torres, began an investigation pursuant
to which they learned the identity of her companions. The police then went
to a location that those individuals were known to frequent and were waiting
outside when a car pulled up. Several of the individuals suspected to be
involved in the robbery were in the car, which was being operated by the
defendant. When the police attempted to stop the car, a pursuit ensued,
which the police terminated at some point due to public safety concerns.
The car later was located in New Haven. The New Haven police then came
into contact with the defendant, who was, by then, known to be a suspect
in the West Haven robbery. The defendant threw down a firearm that he
was carrying, dropping it in a yard. The firearm was recovered and met the
description of the gun with which the robbery victim claimed he was struck.
On the basis of statements given by several individuals, including some of
the defendant’s coconspirators, which were corroborated by surveillance
video from the motel, the police learned that the coconspirators had hatched
a plan to rob the victim by having the women gain entry to the motel room
and having the men wait outside and, at the appropriate time, enter the
motel room and rob the victim.
5
‘‘[A] judgment mittimus is . . . a clerical document by virtue of which
a person is transported to and rightly held in prison.’’ (Internal quotation
marks omitted.) State v. Montanez, 149 Conn. App. 32, 34 n.1, 88 A.3d 575,
cert. denied, 311 Conn. 955, 97 A.3d 985 (2014).
6
The state also argues that the defendant cannot prevail on this claim
because he was not legally entitled to the credit that he claims the court failed
to award and because the plea agreement never contemplated deducting
presentence confinement credit from the agreed upon sentence. Although
we will briefly discuss the latter of these arguments in part II of this opinion,
we need not address the former argument. Our conclusion that a sentencing
court lacks the authority to order presentence confinement credit at sentenc-
ing renders it unnecessary to resolve the state’s argument that the defendant
was not entitled to any such credit in the first instance. As set forth in this
opinion, whether the defendant is entitled to presentence confinement credit
must be determined, not at sentencing, but by the Commissioner of Correc-
tion (commissioner) upon review of all relevant records and in accordance
with the application of the pertinent statutes and the policies and procedures
of the department. Only after such a determination is made will the issue
be ripe for judicial review by way of a petition for a writ of habeas corpus.
See State v. Riddick, 194 Conn. App. 243, 244–45, 220 A.3d 908 (2019)
(‘‘petition for a writ of habeas corpus, rather than a motion directed at the
sentencing court, is the proper method to challenge the [commissioner’s]
application of presentence confinement credit’’); State v. Carmona, 104
Conn. App. 828, 833, 936 A.2d 243 (2007) (habeas proceeding, not motion
to correct illegal sentence, is proper method to raise claim concerning
presentence confinement credit), cert. denied, 286 Conn. 919, 946 A.2d
1249 (2008).
7
Generally, ‘‘[w]e defer to the broad authority that legislatures possess
in determining the types and limits of punishment for crimes.’’ State v.
Heinemann, 282 Conn. 281, 311, 920 A.2d 278 (2007). To the extent that
the defendant suggests in his argument on appeal that the legislature’s
decision to place the authority to calculate and apply presentence confine-
ment credit exclusively within the hands of the department rather than
sentencing courts somehow implicates the doctrine of separation of powers,
this notion has been rejected by our Supreme Court. See Washington v.
Commissioner of Correction, 287 Conn. 792, 826–29, 950 A.2d 1220 (2008).
8
In Gooden, the petitioner had been sentenced in accordance with a
plea agreement that included an agreed upon sentence of ten years of
incarceration followed by five years of special parole. In the subsequent
habeas action, he claimed that his counsel was ineffective because, inter
alia, he failed to ask the sentencing court to account for 286 days of jail
credit by reducing his time to serve to nine years and seventy-nine days.
The habeas court rejected the claim, indicating that the sentencing judge
would not have awarded jail credit even if counsel had asked. See Gooden
v. Commissioner of Correction, supra, 169 Conn. App. 342–43.
9
To be clear, we hold only that a sentencing court lacks authority to
calculate and award presentence confinement credit. This should not be
misunderstood as suggesting that a habeas court, when adjudicating a peti-
tion for a writ of habeas corpus in which it is claimed that the commissioner
acted improperly with respect to presentence confinement credit, lacks
authority to craft an appropriate remedy.
10
This is because the state may have agreed to nolle charges in reaching
the agreed upon sentence. Although a sentencing court has the authority
to structure a sentence differently than that agreed to in a plea deal between
the defendant and the state, unless the state agrees otherwise, the court
may do so only if the defendant is prepared to enter a plea to all charges
in the information, including any that the state had agreed to nolle as part
of its own plea agreement with the defendant. If the nolled charges carry
a statutory minimum sentence in excess of the previously agreed upon
time to serve, any additional reduction in the agreed upon sentence by the
sentencing court, acting alone, would not be legally possible. For example,
in the present case, one of the charges that the state had agreed to nolle
was the home invasion charge, which carries a mandatory minimum sentence
of ten years to serve. See General Statutes § 53a-100aa (c). The court could
not unilaterally have structured a sentence that was less than the seven and
one-half years to serve that the state previously had agreed to unless the
state also agreed to nolle the home invasion charge.
11
The state also argues that the credit to which the defendant claimed
he was entitled had been applied against the sentence he received for the
New Haven file. We need not address this assertion because we agree that
the plea deal at issue did not include an accounting for any presentence
confinement credit.
12
Given our current holding that the authority to calculate and apply
presentence confinement credit lies exclusively with the commissioner, it
is unlikely that the state has any authority to directly negotiate a plea bargain
that addresses presentence confinement credit.
13
‘‘[D]ead time is prison parlance for presentence confinement time that
cannot be credited because the inmate is a sentenced prisoner serving
time on another sentence.’’ (Internal quotation marks omitted.) Bagalloo v.
Commissioner of Correction, 195 Conn. App. 528, 531 n.2, 225 A.3d 1226,
cert. denied, 335 Conn. 905, 226 A.3d 707 (2020).
14
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified by In
re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), provides that ‘‘a
defendant can prevail on a claim of constitutional error not preserved at
trial only if all of the following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional violation beyond a reason-
able doubt. In the absence of any one of these conditions, the defendant’s
claim will fail.’’ (Emphasis omitted; footnote omitted.) State v. Golding,
supra, 239–40.
15
Practice Book § 60-5 provides in relevant part: ‘‘The court may in the
interests of justice notice plain error not brought to the attention of the
trial court. . . .’’ It is axiomatic, however, that ‘‘[t]he plain error doctrine
is reserved for truly extraordinary situations [in which] the existence of the
error is so [patent and readily discernible from the record] that it affects the
fairness and integrity of and public confidence in the judicial proceedings.’’
(Internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 812,
155 A.3d 209 (2017).
16
The same rights are guaranteed under our state constitution in article
first, § 8, as amended by article seventeen of the amendments. See State v.
Suggs, 194 Conn. 223, 227 n.3, 478 A.2d 1008 (1984).
17
We note that our Supreme Court previously has declined an invitation
to do so. See Ghant v. Commissioner of Correction, 255 Conn. 1, 13, 761
A.2d 740 (2000) (‘‘The petitioner urges this court to adopt a more stringent
requirement for jury trial waivers based upon cases from jurisdictions other
than Connecticut. We decline, however, to mandate more stringent require-
ments for jury trial waivers in plea canvasses.’’).