Washington v. Commissioner of Correction

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IKEEM WASHINGTON v. COMMISSIONER
OF CORRECTION
(AC 37420)
Lavine, Alvord and Sheldon, Js.
Argued April 13—officially released June 21, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
John C. Drapp III, assigned counsel, with whom, on
the brief, was James R. Fraguela, assigned counsel, for
the appellant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Adrienne Maciulewski, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Ikeem Washington,
appeals following the habeas court’s denial of his peti-
tion for certification to appeal from the denial of his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion by denying his petition for certification to
appeal and (2) erred in concluding that he failed to
demonstrate that his trial counsel’s performance was
deficient and that he was not prejudiced by the repre-
sentation of his trial counsel. We dismiss the appeal.
In his amended petition for a writ of habeas corpus,
the petitioner alleged, in relevant part, that Attorneys
David Egan and Richard Marquette provided him with
ineffective assistance of trial counsel in that they failed
to advise him of the legal and liberty ramifications of
accepting or rejecting a certain plea offer from the state
under General Statutes § 18-98 and our Supreme Court’s
holdings in Harris v. Commissioner of Correction, 271
Conn. 808, 860 A.2d 715 (2004), Cox v. Commissioner
of Correction, 271 Conn. 844, 860 A.2d 708 (2004), and
Hunter v. Commissioner of Correction, 271 Conn. 856,
860 A.2d 700 (2004) (Harris, Hunter, Cox trilogy),
which control the application of presentence confine-
ment credit.1 As a result of counsel’s alleged deficient
representation, the petitioner claimed that he received
only forty-four days of presentence confinement credit
on the sentence imposed on him in the judicial district
of New Haven in May, 2012, rather than 279 days of
presentence confinement credit.2 Following a trial on
November 6, 2014,3 the habeas court, Fuger, J., found
that Marquette’s representation of the petitioner was
not deficient and that the reason the petitioner lost
279 days of presentence confinement credit was his
unconditional rejection of the state’s initial plea offer.
The record discloses the following facts and proce-
dural history. On December 21, 2010, the petitioner was
released from incarceration and began the probationary
period of the four concurrent sentences he was serving.4
One of those sentences had been imposed in the judicial
district of Ansonia-Milford and the other three had been
imposed in the judicial district of New Haven. On April
19, 2011, while he was on probation, the petitioner
attempted to rob a Q-Mart convenience store in Wall-
ingford. The store clerk not only foiled the petitioner’s
robbery attempt, but also provided the police with infor-
mation about the vehicle in which the petitioner left
the scene. A state trooper observed the vehicle on Inter-
state 91 and followed it into New Haven, where the
trooper initiated a traffic stop that eventually led to the
petitioner’s arrest.
As a result of the attempted robbery, the petitioner
was charged with crimes in both the judicial district of
New Haven and the judicial district of Ansonia-Milford.
The charges related to the attempted robbery were filed
in New Haven,5 along with three charges of violation
of probation (New Haven charges). The petitioner
appeared in court in New Haven on April 20, 2011, at
which time Attorney Cheryl Heffernan was appointed
to represent him. The petitioner was unable to post
bond and, therefore, was held in pretrial detention from
April 20, 2011, until June 2, 2011, for a total of forty-
four days.
On June 3, 2011, also as a result of the attempted
robbery, the petitioner was arrested and charged with
violation of probation of the prior Milford sentence
(violation of probation). Egan was appointed to repre-
sent the petitioner on that charge. The petitioner again
was unable to post bond and was confined from that
date until he was sentenced for violation of probation
on March 8, 2012, for a total of 279 days. Thus, the
petitioner was being held in pretrial detention simulta-
neously on the New Haven charges and the violation
of probation charge.
On December 1, 2011, the petitioner appeared with
Heffernan in New Haven. The petitioner rejected a
‘‘global’’ settlement plea agreement offered by the
state,6 which would have resolved the Wallingford
attempted robbery charges and the three violation of
probation charges pending against him in New Haven.
The court, Fasano, J., was aware of the Milford viola-
tion of probation charge and stated that once ‘‘the mat-
ter is assigned to a trial prosecutor in Milford, they can
work out in Milford which would go first.’’ Judge Fasano
continued the New Haven charges until December 20,
2011. Heffernan then informed Judge Fasano that the
petitioner was dissatisfied with her representation and
had filed a motion to remove her as his counsel, as well
as a grievance against her. At the petitioner’s request,
Judge Fasano appointed Marquette to represent him in
Heffernan’s stead.7
The petitioner appeared with Egan in Milford on Janu-
ary 30, 2012. The state made a plea offer of seven years
to resolve the violation of probation charge. The peti-
tioner initially rejected the offer,8 but following a discus-
sion with the court, Arnold, J., and Egan, the petitioner
decided to accept the plea offer. Before Judge Arnold
accepted the petitioner’s guilty plea, the court explained
that it would stay the imposition of sentencing until the
petitioner was able to resolve the New Haven charges
so that the petitioner could serve his sentences concur-
rently.9 The petitioner informed Judge Arnold that he
had new counsel in New Haven and that the case could
go on for another three months. Judge Arnold stated
that he would not schedule sentencing before the peti-
tioner’s next court date in New Haven in order to give
the petitioner an opportunity to negotiate a settlement.
The petitioner was next to appear in New Haven on
March 2, 2012. Judge Arnold, therefore, stayed sentenc-
ing of the violation of probation charge until March 8,
2012. In doing so, the court stated to the petitioner:
‘‘So understand, sir, that if you’re able to work out
something in New Haven on or before the date, I am
going to continue this to, which is March eighth . . .
if on March eighth we find out you have worked out
an agreement in New Haven, but the sentencing in New
Haven would be at a later date, then I will continue to
continue this case so that both sentences would go
into effect on the same date so that they would run
concurrent, understand?’’ The petitioner stated:
‘‘Understand.’’
The court further stated: ‘‘Now, if I accept your admis-
sion today, you understand you can’t change your mind
at a later date, all right. I told you I will go along with
what I can to get a resolution of your New Haven case.
But if you don’t make a resolution of the New Haven
case, then this sentence will go into effect certainly
March eighth . . . . But if you have an agreement in
the New Haven case, I will wait until that agreement
is being sentenced so this can run concurrent. Do you
understand that?’’ The petitioner stated: ‘‘Yes.’’
After Judge Arnold accepted the petitioner’s guilty
plea, he stated to the petitioner: ‘‘So once again, Mr.
Washington, I am going to sentence you now, but I am
going to stay that sentencing, meaning it is not going
to go into effect. The earliest date that it will go into
effect is March eighth, if there is no agreement, and we
know it. It can get continued from March eighth, number
one, if you have an agreement in New Haven and then
we’ll find out when New Haven is going to sentence
you . . . . [B]ut if I have been told on March eighth
that there is no agreement, it’s been turned down, and
it’s a dead deal in New Haven, this sentence will go
into effect on March eighth, okay?’’10
On March 2, 2012, the petitioner appeared in New
Haven where he rejected the state’s plea offer. Judge
Fasano assigned the petitioner’s case to the trial list.
When the petitioner returned to court in Milford on
March 8, 2012, Egan asked Judge Arnold for a further
continuance of the imposition of the petitioner’s sen-
tence. Judge Arnold declined the request. The petitioner
protested that Marquette had only been on the case for
a few months and that he needed more time to work
out a plea agreement of ‘‘ten [years] suspended after
seven . . . .’’ Judge Arnold noted that was much more
favorable than the offer the state made in December,
2011, an offer of twenty years in prison suspended after
twelve. Egan protested the court’s refusal to continue
sentencing, noting that the petitioner’s presentence
confinement time would be credited to the Milford sen-
tence, not the New Haven sentence. Judge Arnold stated
that the petitioner would have to make a request to
have the presentence time apply in New Haven. The
court then lifted the sentencing stay.
Thereafter jury selection began on the New Haven
charges. On April 19, 2012, the petitioner appeared
before Judge Fasano. At that time, the state withdrew
its plea offer of twenty years to serve, suspended after
twelve years. The petitioner’s case was scheduled to
begin trial on May 1, 2012. On April 30, 2012, the peti-
tioner appeared in court to accept a new plea offer
calling for fourteen years of incarceration to be served
concurrent to the sentence imposed in Milford. During
his plea canvass, the petitioner stated that the New
Haven sentence would be served concurrent with the
Milford sentence and that he would receive presentence
confinement credit on his New Haven sentence. The
court, Clifford, J., stated that there was no agreement
as to the allocation of presentence confinement credit.
Marquette asked if the state would entertain an
agreement as to the presentence confinement credit.
The state rejected the request. Judge Clifford stated
that that the allocation of presentence confinement
credit was a matter for the Department of Correction
(department) to determine. The petitioner, however,
accepted the state’s new plea offer and the court
accepted his guilty plea pursuant to North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
As previously noted, the petitioner was sentenced to
fourteen years of incarceration on May 25, 2012.
The department applied forty-four days of presen-
tence confinement credit to the petitioner’s New Haven
sentence, which accounted for the time the petitioner
had spent in confinement between the date of his April
19, 2011 arrest and June 2, 2011, when he was arrested
in Milford for violation of probation. The department
allocated 279 days of presentence confinement credit
for the period between June 2, 2011, and March 8, 2012,
to the petitioner’s sentence for violation of probation.
Following the habeas trial, Judge Fuger found that
both Egan and Marquette were aware of and considered
the application of the Harris, Hunter, Cox trilogy. The
evidence was clear that the petitioner unconditionally
had been rejecting any possibility of a plea in New
Haven. Judge Fuger also found that Judge Arnold
‘‘apparently lost patience with the length of time’’ it
was taking to resolve the charges against the petitioner.
He found that, if the petitioner did not accept the plea
offer of seven years on the violation of probation
charges, Judge Arnold would soon call the case for a
hearing, which could have resulted in a sentence of
more than seven years and the loss of 279 days of
presentence confinement credit. Judge Fuger found
that it was the petitioner’s reluctance to plead guilty in
New Haven, which was his right, that resulted in the
loss of presentence confinement credit to his May 25,
2012 sentence on the New Haven charges. The peti-
tioner could have taken the case to trial, but he ulti-
mately elected to take a plea. Judge Fuger found that
it was the petitioner’s fault that he lost the 279 days of
presentence confinement credit, not Marquette’s.
The habeas court found no deficient performance by
Marquette. If Marquette was operating under any time
constraint, it was precipitated by the petitioner who
chose to release Heffernan fairly late in the pretrial
process. The court therefore denied the amended peti-
tion for a writ of habeas corpus and the petitioner’s
request for certification to appeal.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. Simms v. Warden, 230 Conn. 608, 612, 646
A.2d 126 (1994). To prove an abuse of discretion, the
petitioner must demonstrate that the issues are debat-
able among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the questions
are adequate to deserve encouragement to proceed fur-
ther. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S.
430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). If
the petitioner succeeds in surmounting that hurdle, the
petitioner must then demonstrate that the judgment of
the habeas court should be reversed on its merits. Id.,
612. We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. . . . J.R. v.
Commissioner of Correction, 105 Conn. App. 827, 831,
941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976
(2008). 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).’’ (Internal quotation marks omitted.)
Elliston v. Commissioner of Correction, 131 Conn. App.
787, 788–89, 28 A.3d 1019 (2011).
‘‘A claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. To satisfy the performance prong, a claim-
ant must demonstrate that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed . . . by the [s]ixth [a]mendment. . . . Put
another way, the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Internal
quotation marks omitted.) Atkinson v. Commissioner
of Correction, 125 Conn. App. 632, 638, 9 A.3d 407
(2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011).
In Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88
L. Ed. 2d 203 (1985), the United States Supreme Court
‘‘established that claims of ineffective assistance of
counsel in the plea bargaining context are governed by
the two part test set forth in Strickland [v. Washington,
supra, 466 U.S. 668.]’’ Gonzalez v. Commissioner of
Correction, 308 Conn. 463, 478, 68 A.3d 624 (2013).
‘‘[A] criminal defendant has a sixth amendment right to
effective assistance of counsel during plea negotiations,
including when he or she rejects a plea bargain as a
result of poor legal advice.’’ Id., 476, citing Missouri v.
Frye, U.S. , 132 S. Ct. 1399, 1405, 182 L. Ed. 2d
379 (2012), and Lafler v. Cooper, U.S. , 132 S. Ct.
1376, 1384, 182 L. Ed. 2d 398 (2012).
Despite the procedural complexity of the present
appeal, the resolution of the petitioner’s claim turns on
a credibility determination. In his amended petition for
a writ of habeas corpus, the petitioner alleged that Mar-
quette failed to explain meaningfully how § 18-98 and
the Harris, Hunter, Cox trilogy affected the calculation
and application of presentence confinement credit. At
the habeas trial, Marquette testified that he had
explained to the petitioner that he would not receive
pretrial confinement credit for the New Haven charges
if he did not conclude the New Haven charges quickly,
but despite that explanation, the petitioner did not want
to accept the state’s initial plea offer. The petitioner’s
claim quite simply turns on the court’s credibility deter-
mination.
In his oral decision, Judge Fuger implicitly credited
Marquette’s testimony over that of the petitioner.11 The
court found that Marquette was ‘‘aware of and consid-
ered the application of . . . Harris, Hunter and Cox.
It is clear that the petitioner . . . had—been uncondi-
tionally rejecting any possibility of a plea.’’
We carefully have reviewed the record before the
habeas court, including the transcripts of the proceed-
ings in Milford and New Haven, and the transcript of the
habeas trial. The evidence supports the habeas court’s
finding. Egan’s testimony supports Marquette’s testi-
mony that the two lawyers were trying to work in con-
cert for the benefit of the petitioner. Egan testified that
he had sent a letter to the petitioner explaining to him
why it was necessary for him to resolve the New Haven
charges.12 At the time he accepted the petitioner’s guilty
plea, Judge Arnold several times told the petitioner that
the New Haven and Milford cases had to be resolved
together to preserve his presentence confinement
credit. The petitioner stated to Judge Arnold that he
understood the need to resolve the New Haven charges.
See footnote 10 of this opinion. We note that the peti-
tioner appears to be quite experienced in the workings
of the criminal justice system and knowledgeable about
the intricacies of the law of sentencing. Moreover, the
record discloses that the petitioner was not satisfied
with the state’s original plea offer on the New Haven
charges and represented that he hoped to secure a plea
offer of ‘‘ten [years] suspended after seven . . . .’’
We therefore conclude that the habeas court did not
abuse its discretion by denying the petitioner’s petition
for certification to appeal. The issue of credibility is
not debatable among jurists of reason, no court could
have resolved the issues in a different manner, and
the issue does not deserve encouragement to proceed
further. In simple English, the petitioner’s own actions,
not those of his lawyers, were the cause of any problems
he experienced.
The appeal is dismissed.
1
In Hunter v. Commissioner of Correction, supra, 271 Conn. 865, our
Supreme Court held with respect to the proper construction of § 18-98d that
‘‘after the [Commissioner of Correction] credits days served in presentence
confinement to the first of two concurrent sentences, the days encompassed
therein [have] been counted . . . once for the purpose of reducing all sen-
tences imposed within the meaning of § 18-98d (a) (1) (A). As a consequence,
they [cannot] be applied again to advance the . . . discharge date for the
[second] sentence without violating the proscription in the statute against
double counting.’’ (Internal quotation marks omitted.) See also Harris v.
Commissioner of Correction, supra, 271 Conn. 820; Cox v. Commissioner
of Correction, supra, 271 Conn. 852.
2
The basis of the petitioner’s claim may be summarized as follows. On
April 20, 2011, the petitioner was charged with crimes that he committed
on April 19, 2011. He was unable to make bond and, therefore, he was
confined from April 20, 2011, until he was sentenced for those crimes on
May 25, 2012. The petitioner also was arrested in Milford on June 3, 2011,
for violation of probation for the crimes he committed on April 19, 2011.
Again, he was unable to post bond, and was confined until he was sentenced
for violation of probation on March 8, 2012. The petitioner’s sentence for
violation of probation was seven years; his criminal sentence was fourteen
years. The sentences are to be served concurrently. Because the violation
of probation sentence was imposed first, the 279 days of presentence confine-
ment credit was applied to that sentence, not the longer criminal sentence.
The petitioner claims that Marquette failed to inform him of the allocation
of presentence confinement credit so that he could have pleaded in a timely
manner so that the 279 days of presentence confinement credit was allocated
to the criminal sentence imposed in New Haven.
3
Egan represented the petitioner on the violation of probation charge
pending in the judicial district of Ansonia-Milford. Marquette represented
the petitioner on the criminal and violation of probation charges pending
in the judicial district of New Haven. Before evidence was presented at the
habeas trial, the petitioner withdrew his claim against Egan. During the
habeas trial, the petitioner waived his attorney-client privilege as to conversa-
tions he had with Egan.
4
On November 28, 2005, the petitioner was sentenced in the judicial
district of Ansonia-Milford to fifteen years of incarceration, execution sus-
pended after six years, and five years of probation after he pleaded guilty
to robbery in the first degree in violation of General Statutes § 53a-134 (a)
(4). On December 8, 2005, the petitioner was sentenced under three dockets
in the judicial district of New Haven for a total effective sentence of ten
years of incarceration, execution suspended after five years and three years
of probation.
5
The petitioner was charged with attempt to commit robbery in the second
degree in violation of General Statutes §§ 53a-135 (a) (2) and 53a-49, conspir-
acy to commit robbery in the second degree in violation of General Statutes
§§ 53a-135 (a) (2) and 53a-48, and burglary in the third degree in violation
of General Statutes § 53a-103.
6
According to Marquette, the state’s global plea offer on the New Haven
charges, which included violations of probation, was ‘‘twenty [years sus-
pended] after fifteen’’ but did not include the Milford violation of proba-
tion charge.
7
Marquette entered an appearance on behalf of the petitioner on January
16, 2012.
8
The petitioner owed nine years on the prior Milford sentence.
9
Judge Arnold stated to the petitioner, in part: ‘‘So you owe nine years.
That is what could happen as a result of a violation of probation hearing
here . . . . Now, the state made an offer . . . [a]nd I am in agreement
with the offer of seven years to serve.
‘‘Now, there is no agreement with New Haven . . . as to what they would
do if, in fact, you accepted that offer here . . . . So basically, I would take
your plea here and allow you basically one month to see if you can work
out your New Haven matter, and I can’t say for either concurrent time, but
for time less than they are offering you to run concurrent with this sentence
so that they would both run together so you wouldn’t have a time credit
problem on one file or the other . . . .
‘‘So, if you admitted a violation of probation today . . . I wouldn’t sen-
tence you or your sentence wouldn’t go into effect here today on a violation
of probation . . . . It would give you like a one month window to see if
you could work something out in New Haven close to what we’re giving
you here today. I can’t speak for New Haven; I really can’t. But it gives you
an opportunity that if you can work something out there, then we can have
an agreement in New Haven and some agreement here, whether it’s for the
same time or not, but at least the sentences would run concurrent so that
you would be able to take advantage of all of your available time credit.
’’That is the purpose for staying any sentence here. It gives you a month
to see if you can work it out in New Haven. . . . But if you can’t work out
your New Haven case when you come back here in a month, the sentence
would go into effect and you know whatever you do in New Haven basically
you’re on your own to try to resolve that case.’’ (Emphasis added.)
The following colloquy also transpired:
‘‘The Court: But understand the fact, if this plea is entered today based
upon this proposed sentence and then you talk to your New Haven public
defender on that date and nothing can be worked out in New Haven, it
doesn’t mean that we are going to vacate this sentence. This sentence will
go into effect on a date subsequent to March second.
‘‘The [Petitioner]: So I’ll have a month to basically make a final—
‘‘The Court: A little over a month. Yeah, a little over a month to try and
get your New Haven public defender to resolve it in some sentence that
you feel is favorable that can work with the disposition in this sentence.’’
10
The following colloquy transpired between Judge Arnold and the peti-
tioner:
‘‘The [Petitioner]: So . . . if they come with a plea bargain or something
on March second, and it’s not accepted, this sentence—so I am basically—
‘‘The Court: This sentence will go into effect on March eighth.
‘‘The [Petitioner]: So basically I’m caught in like a—like I have a time
period—
’’The Court: You are caught in a time credit jam, yes, you are.
‘‘The [Petitioner]: Take time in New Haven, no matter what it is—
‘‘The Court: Well, you—nobody—no, you don’t have to accept plea bar-
gains n New Haven unless you feel it’s a fair situation and that it is in your
best interest to do so. What I am saying to you is that your time computations
will get different because you will be sentenced on this file and as a
sentenced prisoner you will no longer be getting time credit, I believe, on the
New Haven file for however long that takes to resolve. Do you understand?
‘‘The [Petitioner]: I understand.’’ (Emphasis added.)
11
If the habeas court’s credibility determination is not implicit in its deci-
sion, the petitioner failed to seek an articulation of the court’s credibility
determinations and, therefore, he failed to present an adequate record for
review. See Practice Book §§ 60-5 and 61-10.
12
Egan testified at the habeas trial, in part, as follows:
‘‘[The Prosecutor]: Did you discuss with [the petitioner] what would hap-
pen if the New Haven case did not resolve by the day that the stay of
execution was to be lifted in Milford?
‘‘[Attorney Egan]: Oh, yeah. We . . . did that extensively and, as a matter
of fact, I wrote to [the petitioner] at the beginning of December along the
very lines that you’ve suggested. . . . [I]f my memory serves, I believe . . .
there was one final pretrial conference in New Haven on December 1, in
which [the petitioner] rejected the offer of twelve years. . . . I wrote him
the following day, December 2, indicating to him that if he . . . if they were
unable to resolve his situation in New Haven, that we were going to be
forced into a situation where we were going to have to go forward with a
probation hearing in Milford, and if that happened without any agreement
with respect to the New Haven cases, that all his pretrial credits would go
towards a resolution of the file in Milford and there would be nothing left
for any . . . subsequent disposition in New Haven.
***
‘‘[The Prosecutor]: When [the petitioner] admitted the violation of proba-
tion in January of 2012, did you inform Attorney Marquette of that fact?
‘‘[Attorney Egan]: Oh, yes, yes.
‘‘[The Prosecutor]: And did you inform him about the stay of execution
aspect?
‘‘[Attorney Egan]: Yes, yes. That was all done by e-mail. . . . Attorney
Marquette and I had been, you know, communicating on a fairly . . . consis-
tent basis for about . . . a week prior to the resolution of his problems on
January thirtieth. . . . Yeah, Attorney Marquette was very much in the loop
as to what was going on here.
‘‘[The Prosecutor]: What was the purpose of alerting him to the disposition
in Milford?
‘‘[Attorney Egan]: Again, to make sure that we could coordinate it, the
resolution of these files, so that he did not lose any pretrial credit.’’