Dennis v. Commissioner of Correction

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ANDRE DENNIS v. COMMISSIONER
OF CORRECTION
(AC 39874)
Keller, Elgo and Eveleigh, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his trial counsel
had provided ineffective assistance by failing to request a stay of execu-
tion that resulted in the petitioner’s loss of sixteen days of presentence
incarceration credits. Pursuant to a plea agreement on various charges
under multiple docket numbers in the Waterbury Superior Court, the
petitioner admitted to having violated his probation and pleaded guilty
under the Alford doctrine to criminal violation of a restraining order,
criminal violation of a protective order and the crime of assault in the
third degree. At the plea and sentencing hearing, the trial court canvassed
the petitioner regarding the plea agreement and provided the prosecutor,
trial counsel and the petitioner with the opportunity to present any
reasons why it should not be accepted. When no reasons were given,
the court accepted the plea agreement and sentenced the petitioner
in accordance with the state’s recommendation. Thereafter, the court
inquired whether any other matters needed to be addressed prior to the
conclusion of the hearing, and no requests were made. Later that day,
however, trial counsel filed a motion for presentence incarceration cred-
its but did not request a stay of execution of the sentence. Approximately
three weeks later, the petitioner, pursuant to a separate plea agreement,
pleaded guilty under the Alford doctrine to various charges in the Meri-
den Superior Court and was sentenced to a term of incarceration that
was to run concurrently with the Waterbury sentence. The habeas court
rendered judgment denying the habeas petition, concluding that the
petitioner failed to establish that trial counsel had rendered ineffective
assistance. Thereafter, the habeas court denied the petition for certifica-
tion to appeal, and the petitioner appealed to this court. Held:
1. Contrary to the claim of the respondent, the Commissioner of Correction,
the petitioner’s appeal was not moot, as practical relief remained avail-
able to the petitioner despite that fact that he was no longer incarcerated;
if this court reversed the habeas court’s judgment, the benefit to the
petitioner would be the retroactive modification of his definite sentence
so as to incorporate the sixteen days of presentence incarceration cred-
its, thereby advancing his effective release date and reducing the amount
of time he is required to spend on special parole.
2. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal; the resolution of the petitioner’s underlying claim that
trial counsel rendered ineffective assistance involved issues that were
debatable among jurists of reason, could have been resolved by a court
in a different manner and were adequate to deserve encouragement to
proceed further.
3. The habeas court improperly concluded that the petitioner failed to estab-
lish that trial counsel rendered ineffective assistance by failing to request
a stay of execution of the Waterbury sentence, as there was no reason-
able strategic reason for trial counsel not to request a stay of execution
after the sentence had been imposed: although this court deferred to
the habeas court’s determination that trial counsel credibly testified that
his failure to request a stay of execution was the result of a strategic
decision to move through the sentencing hearing without incident in
order to not jeopardize the trial court’s acceptance of the plea agreement,
this court, as a matter of law, concluded that trial counsel’s decision
was not the product of reasonable professional judgment, as it was not
reasonable for him to believe that once the court accepted the plea
agreement, the petitioner would have been able to withdraw it because
he likely would have been barred from doing so pursuant to the relevant
rule of practice (§ 39-27), and there was no reasonable basis for trial
counsel to believe that the court could have modified the petitioner’s
sentence, once imposed, in a way that would have jeopardized the
plea agreement; moreover, in light of Gonzalez v. Commissioner of
Correction (308 Conn. 463), which held that in the absence of a strategic
justification, the failure to request a bond increase that would have
allowed the petitioner to earn credit for a period of presentence incarcer-
ation constituted deficient performance, the failure of trial counsel here
to request a stay of execution of the Waterbury sentence once it had
been imposed constituted deficient performance.
4. The petitioner’s claim that he was prejudiced by trial counsel’s deficient
performance in failing to request a stay of execution of the Waterbury
sentence because it resulted in his loss of sixteen days of presentence
incarceration credits was supported by the record; the undisputed evi-
dence in the record indicated that the petitioner would have been able
to apply sixteen additional days of presentence incarceration credits to
his definite sentence had a stay of execution been requested and
accepted, and, therefore, the habeas court abused its discretion in deny-
ing the amended petition for a writ of habeas corpus.
Argued September 25, 2018—officially released May 7, 2019
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. Reversed; judgment directed.
Nicholas Marolda, assigned counsel, with whom was
Temmy Ann Miller, assigned counsel, for the appel-
lant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Rebecca A. Barry, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
EVELEIGH, J. The petitioner, Andre Dennis, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended 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 certifica-
tion to appeal and (2) incorrectly concluded that he
failed to establish that his trial counsel rendered ineffec-
tive assistance when trial counsel failed to request a
stay of execution that resulted in the loss of sixteen
days of presentence incarceration credits. We agree
with the petitioner that the habeas court improperly
denied his petition for certification to appeal, and, after
considering the merits of his claim, we conclude that
the habeas court incorrectly determined that trial coun-
sel did not render deficient performance when he failed
to request a stay of execution of the petitioner’s prior
sentence. We, therefore, reverse the judgment of the
habeas court.
The record discloses the following facts and proce-
dural history. On July 30, 2015, the petitioner, who at
the time was represented by Attorney Michael Richards
(trial counsel), entered into a plea agreement at the
Superior Court in Waterbury on a series of charges
resulting in a total effective sentence of three years
incarceration, followed by five years of special parole.1
As part of the Waterbury plea agreement, the petitioner
pleaded to the following: Admission of two counts of
violation of probation in Docket Nos. CR-XX-XXXXXXX-S
and CR-XX-XXXXXXX-S, and guilty under the Alford doc-
trine2 to criminal violation of a restraining order in
violation of General Statutes § 53a-223b in Docket No.
CR-XX-XXXXXXX-S, criminal violation of a protective
order in violation of General Statutes § 53a-223 and
the crime of assault in the third degree in violation of
General Statutes § 53a-61 in Docket No. CR-XX-XXXXXXX-
S, and criminal violation of a protective order in viola-
tion of § 53a-223 in Docket No. CR-XX-XXXXXXX-S.
Prior to accepting the pleas, the court canvassed the
petitioner with respect to the plea agreement and found
that it was entered into voluntarily and with the assis-
tance of competent counsel. After accepting the pleas,
but prior to imposing sentence, the court asked the
petitioner if he would like to address the court. The
petitioner stated that he ‘‘just want[ed] to make sure
all [his] jail credit [would be] applied to all [his] dockets,
even for . . . [the] Meriden cases.’’ The court
responded that because the petitioner’s other cases
were pending in a different jurisdiction, it had no con-
trol over them, but stated: ‘‘What I can do is give you
credit for any time you were incarcerated during the
pendency of these cases that are in this jurisdiction.’’3
The court then sentenced the petitioner to a total effec-
tive sentence of three years incarceration, followed by
five years of special parole in accordance with the
state’s recommendation. Prior to the conclusion of the
proceeding, the court again asked whether anything
else needed to be addressed before the conclusion of
the proceeding. Trial counsel thanked the prosecutor
and the court but made no further requests. Later that
day, trial counsel filed a motion for presentence incar-
ceration credits with the court but did not request a
stay of execution of the sentence. On the following day,
July 31, 2015, the court granted the motion.
Approximately three weeks later, on August 20, 2015,
at the Superior Court in Meriden, as part of a separate
plea agreement that stemmed from separate charges,
the petitioner was sentenced to a total effective sen-
tence of two years of incarceration, which was to run
concurrently with the Waterbury sentence.4 As part of
the Meriden plea agreement, the petitioner entered
Alford pleas to the following charges: One count of
criminal violation of a protective order in violation of
§ 53a-223 in Docket No. CR-XX-XXXXXXX-S and one count
each of the crimes of assault in the third degree in
violation of General Statutes § 53a-61 and failing to
appear in the first degree in violation of General Statutes
§ 53a-172 in Docket No. CR-XX-XXXXXXX-S.
On February 25, 2016, the self-represented petitioner
filed a petition for a writ of habeas corpus alleging
that trial counsel had rendered ineffective assistance
in several respects relating to the application of presen-
tence incarceration credits. On August 3, 2016, the peti-
tioner, now represented by assigned counsel, filed the
operative amended petition, claiming that trial counsel
had rendered ineffective assistance by failing to ade-
quately preserve the petitioner’s incarceration credits
for time already served and that but for trial counsel’s
deficient performance, there was a reasonable probabil-
ity that the petitioner would have a more favorable
outcome in the form of a reduced period of special
parole.
The petitioner’s habeas trial was held on November 9,
2016, before the court, Fuger, J. During the evidentiary
hearing, trial counsel testified that, while he was repre-
senting the petitioner at a violation of probation hearing
in which the petitioner faced ten years incarceration,
the petitioner informed him that he wanted to take
the plea agreement that trial counsel had previously
negotiated with the Waterbury prosecutor. Later in the
hearing, when asked why he didn’t ask for a stay of
execution, trial counsel testified that the petitioner had
been a difficult client who had tried to fire both of his
previous attorneys and was unwilling to negotiate with
the prosecutor. He further testified that ‘‘[the petitioner]
kept wavering. There’s a long track record of him blow-
ing up, trying to fire everyone that had represented him
in the past. I was just trying to get through the canvass
really. . . . [W]e were kind of in the middle of a confus-
ing moment there with the plea. I probably should have
[requested the stay]. I’m not sure what the result was
that we didn’t do it, but again, I thought that his jail
credit was a mess in Meriden anyway.’’
The court also heard from the Meriden trial counsel,
who testified that he also did not ask for jail credits at
the subsequent sentencing, but stated: ‘‘[I]t’s something
I should’ve done. I don’t really have an explanation
for [not doing] it.’’ Furthermore, the petitioner’s expert
witness testified that defense attorneys in Connecticut
have been aware of the issues surrounding jail credit
for some time now and have learned through experience
that it is necessary to take steps to protect whatever
credit there may be. The expert further testified that
having a strained relationship with a client and an urge
to proceed through a hearing quickly does not justify
failing to ask for a stay of execution and that one should
always ask, except when it is counter to the client’s
express wishes. After the conclusion of evidence, the
habeas court denied the petition by oral decision, con-
cluding that there was no deficient performance on the
part of trial counsel. This appeal followed.
On appeal, the petitioner claims that the habeas court
abused its discretion when it found that he failed to
prove that trial counsel’s failure to request a stay of
execution, which deprived him of sixteen days of pre-
sentence incarceration credits, constituted ineffective
assistance of counsel.5
As a preliminary matter, we address the claim of the
respondent, the Commissioner of Correction, that the
petitioner’s appeal should be dismissed as moot. This
claim is predicated on the fact that the petitioner is no
longer incarcerated.6 The respondent argues, therefore,
that this court can afford the petitioner no practical
relief. Although the petitioner is no longer incarcerated,
the petitioner argues that practical relief still remains
available because an order modifying the original sen-
tence to include the sixteen days of presentence incar-
ceration credit would likely lead to the advancement
of his release from special parole by approximately that
same amount of time. We agree that practical relief
remains available to the petitioner, and, therefore, this
appeal is not moot.
Our Supreme Court addressed a similar issue in Mur-
ray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987). In
Murray, the petitioner was sentenced to a two year
period of confinement, followed by a period of proba-
tion. Id., 29. During the pendency of his appeal from
the denial of his petition for a writ of habeas corpus, the
petitioner was released from confinement and began
serving the period of probation. Id., 29–30. In addressing
a similar mootness argument, our Supreme Court con-
cluded that the petitioner’s appeal was not moot,
despite his release from confinement, because,
although no longer ‘‘confined,’’ he was still serving the
probationary portion of his sentence. Id., 31. The court
further concluded that it could afford the petitioner
practical relief, because an order directing the commis-
sioner to recalculate the petitioner’s sentence with the
credit sought under General Statues § 18-98d would
affect the period of probation and result in the petitioner
completing his probationary period three months
sooner by advancing his release date. Id., 30–31; see
id., 31 (‘‘[t]herefore, since our resolution of the issue
presented in this appeal will affect [the petitioner’s]
period of probation, the appeal is not moot’’).
In the present case, although the respondent argues
that no relief exists, we note that if the petitioner suc-
cessfully prevails on his claim and we were to reverse
the judgment of the habeas court, the benefit to the
petitioner would be the retroactive modification of his
definite sentence so as to incorporate the sixteen days
of presentence confinement credits, thereby advancing
his effective release date from prison and reducing the
amount of time he is required to spend on special parole.
See id; see also Gonzalez v. Commissioner of Correc-
tion, 308 Conn. 463, 484, 68 A.3d 624 (2013), cert. denied
sub nom. Dzurenda v. Gonzalez, 571 U.S. 1045, 134 S.
Ct. 639, 187 L. Ed. 2d 445 (2013); Ebron v. Commisioner
of Correction, 307 Conn. 342, 356, 53 A.3d 983 (2012),
cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913,
133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).7 Although,
under this scenario, the calculation with respect to the
petitioner’s period of special parole would be adminis-
tered by the Department of Correction and not by the
court, the modification of the petitioner’s definite sen-
tence would, nonetheless, result in the advancement of
his effective release date from prison and a reduction
in the time he will be required to spend on special
parole. See Gonzalez v. Commissioner of Correction,
supra, 490–91 (‘‘The respondent asserts that the peti-
tioner has failed to demonstrate prejudice because pre-
sentence confinement credit is an administrative task
that takes place after sentencing. This claim is unavail-
ing because the issue herein does not concern whether
the respondent properly calculated the petitioner’s pre-
sentence confinement credit but, rather, involves the
failure of the petitioner’s counsel to take the necessary
and available steps during critical stages of the proceed-
ings to protect his client’s statutory right to receive his
full presentence confinement credit.’’). Accordingly, we
conclude that practical relief is available to the peti-
tioner and, therefore, conclude that the present appeal
is not moot.8
I
We now address the petitioner’s first claim that the
habeas court abused its discretion in denying his peti-
tion for certification to appeal from the denial of his
amended petition for a writ of habeas corpus. The fol-
lowing standard of review governs our disposition of
this claim. ‘‘Faced with a habeas court’s denial of a
petition for certification to appeal, a petitioner can
obtain appellate review of the dismissal 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 consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he must then
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 petitioner 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 encourage-
ment 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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As we discuss more fully in part II of this opinion,
because the resolution of the petitioner’s underlying
claim that trial counsel rendered ineffective assistance
involves issues that are debatable among jurists of rea-
son, could have been resolved by a court in a different
manner, and are adequate to deserve encouragement
to proceed further, we conclude that the habeas court
abused its discretion in denying the petition for certifi-
cation to appeal from the denial of the amended petition
for a writ of habeas corpus.
II
The petitioner’s only substantive claim on appeal is
that the habeas court incorrectly concluded that he
failed to establish that his trial counsel rendered ineffec-
tive assistance when trial counsel failed to request a
stay of execution of the Waterbury sentence. Specifi-
cally, the petitioner claims that trial counsel rendered
ineffective assistance because there was no reasonable
strategic reason not to request a stay after the sentence
had been imposed. In response, the respondent argues
that the habeas court correctly determined that trial
counsel’s choice to forgo a motion to stay the execution
of the Waterbury sentence was based on a strategic
decision to move through the sentencing without inci-
dent in order not to jeopardize the court’s acceptance
of the plea agreement. We agree with the petitioner.
The following standard of review and the legal princi-
ples govern our resolution of the petitioner’s ineffective
assistance of counsel claim. ‘‘The habeas court is
afforded broad discretion in making its factual findings,
and those findings will not be disturbed unless they are
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . Accordingly, [t]he 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.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review. . . .
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of the
Connecticut constitution.’’ (Internal quotation marks
omitted.) Thomas v. Commissioner of Correction, 141
Conn. App. 465, 470–71, 62 A.3d 534, cert. denied, 308
Conn. 939, 66 A.3d 881 (2013).
‘‘As enunciated in Strickland v. Washington, supra,
466 U.S. 687, this court has stated: It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . A claim of ineffective assistance
of counsel consists of two components: [1] a perfor-
mance prong and [2] a prejudice prong. To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
[the petitioner] must demonstrate that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. . . . The [petitioner’s] claim will succeed
only if both prongs are satisfied. . . . The court, how-
ever, can find against a petitioner . . . on either the
performance prong or the prejudice prong, whichever
is easier.’’ (Citation omitted; internal quotation marks
omitted.) Salmon v. Commissioner of Correction, 178
Conn. App. 695, 703–704, 177 A.3d 566 (2017).
A
With the foregoing legal framework in mind, we
address the petitioner’s claim that the habeas court
incorrectly concluded that he failed to establish that
his trial counsel rendered ineffective assistance by fail-
ing to request a stay of execution of the Waterbury
sentence pending imposition of the Meriden sentence.
Specifically, the petitioner argues that, with the Water-
bury sentence already imposed, there was no basis for
the claim that the petitioner might act in such a way
that would cause the prosecutor to withdraw the plea
agreement or cause the court to alter the sentence. The
petitioner further argues that the underlying premise
of our Supreme Court’s decision in Gonzalez v. Com-
missioner of Correction, supra, 308 Conn. 463, applies
to the present case, and, therefore, the petitioner is
entitled to the effective assistance of counsel with
respect to ensuring that he receives all available presen-
tence confinement credit. In response, the respondent
argues that it was a reasonable strategic decision to
forgo a motion to stay the sentence because the peti-
tioner could have disrupted the plea process prior to
the conclusion of the sentencing hearing, given his ten-
dency toward disruptive behavior and changing his
mind. Specifically, the respondent argues that the deci-
sion by trial counsel was reasonable given the circum-
stances because the court could have rejected the plea
agreement at any point up to the conclusion of the
hearing had the petitioner wanted to withdraw the plea
agreement or lost his composure. The respondent fur-
ther argues that the petitioner’s reliance on Gonzalez
is misplaced because that case dealt with an omission
that had no strategic value and addressed whether a
bond hearing constituted a critical stage in a criminal
proceeding and, therefore, is distinguishable from the
present case.
In considering the petitioner’s claim that there was
no reasonable strategic basis for not requesting a stay
of execution, we first address the issue of whether the
petitioner could have withdrawn his plea after it was
accepted by the court. The following legal principles
assist in our resolution of this issue. ‘‘[S]trategic choices
made after thorough investigation of law and facts rele-
vant to plausible options are virtually unchallengeable
. . . [however] strategic choices made after less than
complete investigation are [only] reasonable precisely
to the extent that reasonable professional judgments
support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.’’ Strickland v. Washington,
supra, 466 U.S. 690–91. Furthermore, ‘‘Practice Book
§ 39-26 . . . provides: A defendant may withdraw his
or her plea of guilty or nolo contendere as a matter of
right until the plea has been accepted. After acceptance,
[however] the judicial authority shall allow the defen-
dant to withdraw his or her plea [only] upon proof of
one of the grounds in [§] 39-27. A defendant may not
withdraw his or her plea after the conclusion of the
proceeding at which the sentence was imposed.’’ (Inter-
nal quotation marks omitted.) State v. Ramos, 306 Conn.
125, 133–34, 49 A.3d 197 (2012).
Practice Book § 39-27 provides in relevant part: ‘‘The
grounds for allowing the defendant to withdraw his or
her plea of guilty after acceptance are as follows: (1)
The plea was accepted without substantial compliance
with Section 39-19;9 (2) The plea was involuntary, or it
was entered without knowledge of the nature of the
charge or without knowledge that the sentence actually
imposed could be imposed; (3) The sentence exceeds
that specified in a plea agreement which had been pre-
viously accepted, or in a plea agreement on which the
judicial authority had deferred its decision to accept or
reject the agreement at the time the plea of guilty was
entered; (4) The plea resulted from the denial of effec-
tive assistance of counsel; [or] (5) There was no factual
basis for the plea . . . .’’ (Footnote added.) Further-
more, ‘‘[t]he burden is always on the defendant to show
a plausible reason for the withdrawal of a plea of guilty.
. . . To warrant consideration, the defendant must
allege and provide facts which justify permitting him
to withdraw his plea under [Practice Book § 39–27].’’
(Internal quotation marks omitted.) State v. Anthony
D., 151 Conn. App. 109, 114, 94 A.3d 669 (2014), aff’d,
320 Conn. 842, 134 A.3d 219 (2016).
At the Waterbury sentencing hearing, the court pre-
sented the petitioner with the various charges against
him and inquired whether he had sufficient time to
discuss the plea agreement with trial counsel. The court
also asked whether the petitioner was satisfied with
trial counsel’s advice. The petitioner answered in the
affirmative to both inquires. The court proceeded to
canvass the petitioner in accordance with Practice
Book §§ 39-19 through 39-22. The court then asked
whether trial counsel or the prosecutor knew of any
reason why the plea should not be accepted. No reasons
were given by either representative.
The court made a finding that the plea agreement was
made voluntarily and with the assistance of competent
counsel, and accepted it. After the plea agreement had
been accepted, but before the sentence was pro-
nounced, the court asked whether the state or the peti-
tioner wanted to be heard on anything further. The
petitioner stated that he ‘‘just want[ed] to make sure
all [his] jail credit [would be] applied to all [his] dockets,
even for . . . [the] Meriden cases.’’ The court
explained that because the Meriden cases were pending
in another jurisdiction, the court had no control over
them. The court further stated: ‘‘What I can do is give
you credit for any time you were incarcerated during
the pendency of these cases that are in this jurisdiction.’’
The court then asked if there was anything else. The
petitioner asked to be heard a second time and pro-
ceeded to apologize to the court for his previous out-
burst and for any inconvenience that he may have
caused to the court, the state, and the victims. The
court then pronounced sentence.
In the present case, the sentencing court canvassed
the petitioner in conformity with the relevant rules of
practice and provided the prosecutor, trial counsel, and
the petitioner sufficient opportunity to present any rea-
sons why the plea agreement should not be accepted.
Our review of the record fails to disclose any findings
or circumstances that would lead us to conclude that
the requirements set forth in § 39-27 had been violated.10
Although we defer to the habeas court’s determination
that trial counsel credibly testified that his failure to
request a stay of execution was the result of a strategic
decision, as a matter of law, we conclude that trial
counsel’s failure to request a stay was not the product
of reasonable professional judgment. See Strickland
v. Washington, supra, 466 U.S. 690–91. Trial counsel’s
concern that the petitioner could withdraw his plea,
even after it had been accepted by the court, was not
reasonable given that had the court accepted the plea
agreement and had the petitioner subsequently sought
to withdraw it, he likely would have been barred by
§ 39-27. Accordingly, we conclude that it was not rea-
sonable for trial counsel to believe that once the court
accepted the plea agreement, the petitioner would have
been able to withdraw it.
We next address whether the court could have modi-
fied the petitioner’s sentence on the basis of the peti-
tioner’s behavior after the sentence was imposed, but
prior to the conclusion of the sentencing proceeding.
To begin, we acknowledge the common-law principle
that a sentencing court retains jurisdiction over the
proceeding and, thus, the authority to modify the sen-
tence, until custody passes to the respondent, unless
otherwise permitted by statute. See State v. Ramos,
supra, 306 Conn. 133–34. Moreover, this court has held
that a sentencing court can impose a greater sentence
than what was originally provided for in a plea, even
after a plea has been accepted by the court, upon the
presentation of new information. See Practice Book
§ 39-27 (3);11 Ebron v. Commissioner of Correction, 120
Conn. App. 560, 564–65, 992 A.2d 1200 (2010) (following
petitioner’s rejection of state’s plea agreement with
specified sentencing recommendation, court accepted
open plea and sentenced petitioner to greater period
of incarceration than state’s recommendation after it
reviewed new information in unfavorable presentence
investigation report), rev’d in part on other grounds,
307 Conn. 342, 53 A.3d 983 (2012), cert. denied sub
nom. Arnone v. Ebron, 569 U.S. 913, 133 S. Ct. 1726,
185 L. Ed. 2d 802 (2013).
‘‘The critical question in determining whether a court
may take action affecting a defendant’s sentence follow-
ing its imposition [then] is whether the requested action
is punitive in nature. If the requested action is not puni-
tive in nature, then a defendant’s sentence is not
affected, and the trial court has jurisdiction to take that
action. If it is punitive, [however] then a defendant’s
sentence is affected, and the trial court lacks jurisdic-
tion to take that action.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Banks, 321 Conn.
821, 831, 146 A.3d 1 (2016) (considering effects of legis-
lative enactment subsequent to imposition of defen-
dant’s sentence that altered aspect of defendant’s sex
offender reporting obligations).
In the present case, even though the sentencing court
retained jurisdiction over the matter prior to the conclu-
sion of the petitioner’s sentencing hearing, any subse-
quent modification of the sentence after imposition
would be prohibited if construed as punitive. Had the
sentencing court modified the sentence, for example,
by withdrawing its acceptance of the plea agreement
on the basis of the petitioner’s behavior, it would be
difficult to see that decision as anything but punitive.
We conclude, therefore, that there was no reasonable
basis for trial counsel to believe that the court could
have modified the petitioner’s sentence, once imposed,
in a way that would have jeopardized the plea
agreement.
Next, the petitioner argues that Gonzalez v. Commis-
sioner of Correction, supra, 308 Conn. 463, supports
his claim and should apply with equal force in the pre-
sent case. In Gonzalez, our Supreme Court affirmed
this court’s determination that a failure to request a
bond increase, which, if granted, would have allowed
the petitioner to earn credit for a period of presentence
incarceration, was deficient performance because,
despite the fact that the ultimate decision of whether
to grant the bond increase was discretionary, there was
no strategic reason available not to ask for it. Id., 489–91.
The petitioner argues that although the present case
deals with facts concerning a different stage of a crimi-
nal proceeding, the essential thrust is the same: absent a
strategic justification, failure to maximize presentence
confinement credits constitutes deficient performance.
Under the facts of the present case, we agree with
the petitioner.
Although a stay of execution can be a negotiable term
in the plea process that may involve strategic considera-
tions and, therefore, is dissimilar to the routine bond
increase addressed in Gonzalez, the issue here is not
whether requesting a stay is strategic in nature or part
of some strategic process, but whether trial counsel
took the necessary and available steps during critical
stages of the proceedings to protect the petitioner’s
statutory right to receive his full presentence confine-
ment credit. See id., 490.
In the present case, given that we can ascertain no
reasonable basis from the record that supports the
respondent’s claim that trial counsel’s failure to request
a stay of execution was the product of a reasonable
strategic decision, the distinction that the respondent
draws between requesting a bond increase and
requesting a stay of execution is not persuasive in
respect to the issue presented in this appeal. Accord-
ingly, we conclude, on the basis of Gonzalez, that trial
consel’s failure to request a stay of execution once
the sentence had been imposed constituted deficient
performance. Id.
B
Lastly, we address the prejudice prong of Strickland.
The petitioner claims that he was prejudiced by trial
counsel’s failure to request a stay of execution for the
Waterbury sentence because he was unable to apply
sixteen days of presentence incarceration credits
toward his controlling sentence in Meriden that he
would have received if not for defense counsel’s defi-
cient performance. The petitioner further argues that
Glover v. United States, 531 U.S. 198, 121 S. Ct. 696,
148 L. Ed. 2d 604 (2001), and Ebron v. Commissioner
of Correction, supra, 120 Conn. App. 560, support a
finding of prejudice because being incarcerated for even
more than one additional day is prejudicial. In response,
the respondent argues that the habeas court’s decision
was based solely on the deficient performance prong
of Strickland and failed to make any findings with
respect to the issue of prejudice, and, as a result, the
petitioner’s analysis of prejudice is irrelevant to the
present appeal.12
The following legal principles govern our analysis of
the petitioner’s claim. ‘‘The Sixth Amendment requires
effective assistance of counsel at critical stages of a
criminal proceeding. Its protections are not designed
simply to protect the trial, even though counsel’s
absence [in these stages] may derogate from the
accused’s right to a fair trial. . . . The constitutional
guarantee applies to pretrial critical stages that are part
of the whole course of a criminal proceeding, a proceed-
ing in which defendants cannot be presumed to make
critical decisions without counsel’s advice. This is con-
sistent, too, with the rule that defendants have a right
to effective assistance of counsel on appeal, even
though that cannot in any way be characterized as part
of the trial. . . . The precedents also establish that
there exists a right to counsel during sentencing . . . .
[See Glover v. United States, supra, 531 U.S. 203–204].
Even though sentencing does not concern the defen-
dant’s guilt or innocence, ineffective assistance of coun-
sel during a sentencing hearing can result in Strickland
prejudice because any amount of [additional] jail time
has Sixth Amendment significance. [Id., 203].’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Lafler v. Cooper, 566 U.S. 156, 165, 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012); see also Ebron v.
Commissioner of Correction, supra, 120 Conn. App.
581–82 (habeas court properly determined that peti-
tioner suffered prejudice when trial counsel’s deficient
performance resulted in additional incarceration); see
id., 582 (‘‘The petitioner suffered the prejudice of . . .
[additional] incarceration as a direct result of [trial
counsel’s] deficient performance. . . . Further, the
outcome of the proceedings was affected directly by
the petitioner’s counsel . . . and [resulted in] the loss
of a lesser sentence.’’ [Internal quotation marks
omitted.]).13
At the habeas trial, during the petitioner’s closing
remarks, the habeas court asked the following: ‘‘[E]ven
assuming for the sake of argument that it was deficient
performance not to ask for the stay of execution . . .
what evidence, if any, have you presented to this court
that such request would have been granted?’’ The peti-
tioner answered that, at sentencing, the fact that he
requested credits for the time already served and that
the court indicated it would give him the maximum
amount it could, indicates that the court was amenable
to providing the petitioner with whatever credits it
could. The petitioner also pointed to the fact that when
trial counsel filed a motion for presentence incarcera-
tion credits, the trial court granted the request, in toto,
the next day. Although the habeas court made no men-
tion of prejudice or whether a more favorable outcome
would have been likely had defense counsel acted dif-
ferently, it acknowledged in its oral decision that ‘‘[t]his
area of jail credits in Connecticut is extremely confus-
ing. . . .
‘‘I will comment that while what is at issue here is
whether [the petitioner] is entitled to receive sixteen
days of jail credit and thereby be released slightly over
two weeks earlier, that’s not insignificant. To [the peti-
tioner] those are two weeks of his life that have—if he
spends it in jail, he can never get back. So, I do think
this is a significant issue, whether it be sixteen days,
sixteen months or sixteen hours.’’
‘‘[A]lthough it is axiomatic that this court cannot
make factual findings, factual conclusions may be
drawn on appeal if the subordinate facts found [by
the trial court] make such a conclusion inevitable as a
matter of law . . . or where the undisputed facts or
uncontroverted evidence and testimony in the record
make the factual conclusion so obvious as to be inher-
ent in the trial court’s decision.’’ (Internal quotation
marks omitted.) Washington Mutual Bank v. Coughlin,
168 Conn. App. 278, 289, 145 A.3d 408, cert. denied,
323 Conn. 939, 151 A.3d 387 (2016); see also Hickey v.
Commissioner of Correction, 329 Conn. 605, 618–19,
188 A.3d 715 (2018).14 In light of the undisputed evidence
in the record that the petitioner would have been able
to apply sixteen additional days of presentence incar-
ceration credits to his definite sentence had a stay of
execution been requested and accepted, we conclude
that the record clearly supports the petitioner’s argu-
ment that he was prejudiced as a result of trial counsel’s
deficient performance. Accordingly, we conclude that
the habeas court abused its discretion in denying the
amended petition for a writ of habeas corpus.
The judgment is reversed and the case is remanded to
the habeas court with direction to grant the petitioner’s
amended petition for a writ of habeas corpus and to
remand the case to the trial court with direction to
modify the petitioner’s sentence in accordance with
this opinion, so that it reflects the sixteen days of pre-
sentence confinement credits that otherwise would
have been applied to the petitioner’s sentence.
In this opinion the other judges concurred.
1
On July 30, 2015, prior to entering into the plea agreement, the petitioner
was in court for a violation of probation hearing where he faced a possible
ten year period of incarceration. During the hearing, the petitioner notified
trial counsel that he wanted to take a prior plea agreement that had been
offered by the state in the pending Waterbury cases. Thereafter, the hearing
was referred to the court, Fasano, J., for resolution of both the plea
agreement and the violation of probation.
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), [a]n individual accused of [a] crime may voluntarily, know-
ingly, and understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in the acts
constituting the crime.’’ (Internal quotation marks omitted.) Garner v. Com-
missioner of Correction, 330 Conn. 486, 490 n.5, 196 A.3d 1138 (2018).
3
After having accepted the plea agreement, but prior to imposing the
sentence, the court addressed trial counsel, stating: ‘‘Hold it, I haven’t
imposed [the] sentence.’’
4
The petitioner was represented by different counsel at the Meriden hear-
ing. In this appeal, there is no claim that Meriden trial counsel performed
deficiently. Accordingly, we restrict our analysis to whether Richards, who
was Waterbury trial counsel, performed deficiently.
5
The number of presentence incarceration credits that the petitioner
would be entitled to, sixteen days, had the court granted a stay of execution
on his Waterbury sentence, is not in dispute.
6
Specifically, the respondent claims that because the petitioner has com-
pleted his term of incarceration, General Statutes § 18-98d, which governs
the application of presentence confinement credits, does not apply because
it applies only to definite sentences and not to periods of special parole.
The respondent further claims that to allow unused jail credit to apply
to special parole would essentially encourage bad behavior by allowing
defendants to collect credits that would offset punishment for future criminal
acts and, therefore, is counter to public policy. Because we conclude that
practical relief remains available to the petitioner on a separate ground, we
do not reach this issue. See footnote 8 of this opinion.
7
‘‘[T]he United States Supreme Court in Lafler [v. Cooper, 566 U.S. 156,
132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012)] and [Missouri v. Frye, 566 U.S.
134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012)] did not expressly indicate
what should happen under these circumstances, it appears to us that the
court intended that, if the court finds a . . . violation, the court should
attempt to place the habeas petitioner, as nearly as possible, in the position
that he would have been in if there had been no violation.’’ Ebron v. Commis-
ioner of Correction, supra, 307 Conn. 363. ‘‘If the petitioner was prejudiced
because it is reasonably probable that the [more favorable] sentence . . .
would have been imposed if not for the deficient performance of counsel,
even considering intervening circumstances, it seems reasonably clear that
the appropriate remedy is to impose that sentence.’’ Id., 356.
8
Because practical relief remains available to the petitioner, we do not
reach the issue of whether § 18-98d impliedly excludes the application of
presentence confinement credits to periods of special parole.
9
Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant personally and determining
that he or she fully understands: (1) The nature of the charge to which the
plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact
that the statute for the particular offense does not permit the sentence to
be suspended; (4) The maximum possible sentence on the charge, including,
if there are several charges, the maximum sentence possible from consecu-
tive sentences and including, when applicable, the fact that a different or
additional punishment may be authorized by reason of a previous conviction;
and (5) The fact that he or she has the right to plead not guilty or to persist
in that plea if it has already been made, and the fact that he or she has the
right to be tried by a jury or a judge and that at that trial the defendant has
the right to the assistance of counsel, the right to confront and cross-examine
witnesses against him or her, and the right not to be compelled to incriminate
himself or herself.’’
10
See State v. Anthony D., supra, 151 Conn. App. 118–19 (holding that
vague allegations without factual predicates about quality of representation
is not sufficient ground to permit defendant to withdraw guilty plea once
accepted by court) (‘‘Here, there was a vague allegation that the defendant
had concerns about his attorney’s representation but no specific facts, and,
when the defendant was asked if he wanted to say anything before sentence
was pronounced, he specifically declined the opportunity. Neither the defen-
dant nor his attorney were denied the opportunity to present a basis for a
plea withdrawal. The trial court need not consider allegations that merely
are conclusory, vague or oblique.’’ [Internal quotation marks omitted.]).
11
Practice Book § 39-27 (3) provides in relevant part that a defendant can
withdraw a plea once accepted if ‘‘[t]he sentence exceeds that specified in
a plea agreement which had been previously accepted, or in a plea agreement
on which the judicial authority had deferred its decision to accept or reject
the agreement at the time the plea of guilty was entered. . . .’’
12
Although the petitioner did not file a motion for articulation before
filing the present appeal, this court retains the authority under Practice
Book § 60-2 (1) to require the trial court to complete the trial record in
order to aid in the resolution of a case before this court. Judge Fuger,
however, has retired from the bench, thereby, precluding the possibility of
a motion for articulation. For the reasons we discuss herein, such additional
factual findings by the habeas court are not necessary to our analysis.
13
See Ebron v. Commissioner of Correction, supra, 307 Conn. 364
(affirming this court’s prejudice determination).
14
In Hickey, our Supreme Court noted: ‘‘[A]fter concluding that the habeas
court improperly analyzed prejudice, the Appellate Court should have
engaged in a plenary review of the evidence in the record to resolve the
commissioner’s claim that the petitioner failed to satisfy his burden of
proving prejudice as a matter of law, rather than remanding the case for a
new habeas trial. . . . Given that the habeas court relied on facts from the
criminal trial and its own, undisputed historical factual findings, the Appel-
late Court had no reason to remand the case to the habeas court to conduct
a proper prejudice analysis that the Appellate Court itself could have per-
formed.’’ Hickey v. Commissioner of Correction, supra, 329 Conn. 618–19;
see also Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153
A.3d 1264 (2017) (‘‘[t]he application of historical facts to questions of law
that is necessary to determine whether the petitioner has demonstrated
prejudice . . . is a mixed question of law and fact subject to our plenary
review’’).