Smith v. Commissioner of Correction

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TREMAINE SMITH v. COMMISSIONER
OF CORRECTION
(AC 38769)
Keller, Elgo and Beach, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his trial counsel
had provided ineffective assistance in advising him on pretrial confine-
ment credit during a plea proceeding. In February, 2010, the petitioner,
while waiting to be sentenced on a guilty plea to a violation of probation
charge, was arrested and arraigned on a variety of additional charges,
including kidnapping in the first degree. At the time of his arraignment,
the petitioner was ordered held in custody on bond on all charges against
him. In September, 2010, the petitioner was sentenced on the violation
of probation plea. Thereafter, the petitioner pleaded guilty to the kidnap-
ping charge pursuant to a plea offer, and the trial court sentenced him
to a total effective sentence of fourteen years incarceration, execution
suspended after ten years, with three years of probation, to run concur-
rently with an eleven year sentence that he previously had received on
a conviction of attempt to commit robbery in the first degree. The trial
court also explained to the petitioner that he would receive jail credit
dating back to September, 2010. At the time, the petitioner did not raise
any issue with respect to jail credit for time served prior to that date.
In his amended petition for a writ of habeas corpus, the petitioner
claimed, in alleging ineffective assistance, that his trial counsel failed
to request that the petitioner be awarded the approximately seven
months of jail credit that had accrued between February, 2010, the date
his presentence incarceration had commenced, and September, 2010.
At the habeas trial, trial counsel testified that he mistakenly had advised
the petitioner that he would receive all of his jail credit. The petitioner
testified that he had relied on trial counsel’s assurance regarding jail
credit and that the reason that he had agreed to the plea offer on the
kidnapping charge was because he expected to receive full jail credit.
The habeas court rendered judgment denying the habeas petition, con-
cluding that the petitioner had failed to establish the requisite prejudice.
Thereafter, the habeas court denied the petition for certification to
appeal, and the petitioner appealed to this court. Held that the habeas
court did not abuse its discretion in denying the petition for certification
to appeal, as the petitioner failed to demonstrate that his claim that his
trial counsel had provided ineffective assistance was debatable among
jurists of reason, that a court could have resolved the issue in a different
manner, or that the issue was adequate to deserve encouragement to
proceed further, and, accordingly, the petitioner’s appeal was dismissed:
the petitioner failed to meet his burden of proving that there was a
reasonable probability that, but for his allegedly mistaken belief that
he was going to receive the additional seven months of jail credit, he
would not have accepted the plea offer on the kidnapping charge and
instead would have gone to trial, as the primary evidence offered by
the petitioner to support his claim was his own testimony, which the
habeas court did not credit, and this court could not disturb that court’s
determination that the petitioner’s testimony was not credible; more-
over, trial counsel testified that receiving full jail credit was only one
of many concerns that the petitioner had with respect to the plea,
trial counsel also testified that he disagreed with the suggestion of the
petitioner’s habeas counsel that the petitioner was against entering a
guilty plea unless he received all of his jail credit, and the record revealed
that, if the petitioner proceeded to trial, he faced a maximum exposure
on the kidnapping charge of thirty years of incarceration, ten of which
were mandatory, additional exposure as a persistent serious felony
offender, and the prospect of his sentence on the kidnapping charge
running consecutively to, rather than concurrently with, his eleven year
attempted robbery sentence.
Argued October 18, 2017—officially released January 9, 2018
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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Grayson Holmes, former special
deputy assistant state’s attorney, for the appellee
(respondant).
Opinion
ELGO, J. The petitioner, Tremaine Smith, 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, in
which he alleged ineffective assistance on the part of
his trial counsel in advising him on presentence confine-
ment credit during a plea proceeding. The dispositive
issue is whether the habeas court abused its discretion
in so doing. We conclude that it did not and, accordingly,
dismiss the appeal.
The following factual and procedural history is rele-
vant to our resolution of this appeal. On January 14,
2008, the petitioner pleaded guilty to one count of
escape in the first degree in violation of General Statutes
§ 53a-169, and was sentenced to a term of five years
incarceration, execution suspended after nine months,
with three years of probation. He thereafter violated
the terms of his probation and, on November 30, 2009,
entered a guilty plea in docket number CR-07-0364815
for violating General Statutes § 53a-32 (first docket).
Prior to sentencing on that matter, the petitioner, on
February 3, 2010, was arrested and arraigned on a vari-
ety of additional charges. In docket number CR-10-
0387865, the petitioner was charged with one count of
kidnapping in the first degree in violation of General
Statutes § 53a-92 (second docket). In docket number
CR-10-0387866, the petitioner was charged with one
count each of attempt to commit robbery in the first
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-134 (a) (3), and attempt to commit kidnapping
in the first degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-92 (a) (2) (B) (third docket).
At the time of the February 3, 2010 arraignment, the
petitioner was ordered held in custody on bond on all
charges. On June 30, 2010, the petitioner was charged
with one count of criminal violation of a protective
order in violation of General Statutes § 53a-223
(fourth docket).1
The petitioner appeared before the trial court for a
sentencing hearing on his violation of probation plea
in June, 2010. At that time, the court advised the peti-
tioner as follows: ‘‘I was prepared today to sentence
you on the violation of probation [charge]. I’m not going
to do that because you don’t want to be put in a position
where you end up doing dead time2 and you have to
make a knowing and intelligent decision as to whether
you want to resolve all [your] cases at one time and
thereby get one sentence.’’ (Footnote added.) The court
thus deferred its decision to allow the petitioner addi-
tional time to ‘‘make an informed decision’’ on how
to proceed.
The petitioner declined to proceed with a global reso-
lution of his pending cases. On September 13, 2010,
the court held a sentencing hearing on the petitioner’s
violation of probation plea. Due to the fact that the
petitioner ‘‘didn’t even make it twelve hours without
violating the conditions of his [November 30, 2009]
release,’’ the state requested a sentence of four years
and three months incarceration, the full amount of time
remaining on the underlying sentence for escape in
the first degree. The court nevertheless sentenced the
petitioner to a lesser sentence of four years incarcera-
tion. At his habeas trial, the petitioner’s counsel
informed the habeas court that ‘‘[a]ll of his credit’’ that
had accrued since his arrest on February 3, 2010, was
applied by the trial court toward that sentence. Cf.
Washington v. Commissioner of Correction, 287 Conn.
792, 800, 950 A.2d 1220 (2008) (explaining that General
Statutes § 18-98d ‘‘excludes from [presentence confine-
ment] credit any time that a prisoner spends incarcer-
ated for a prior conviction before sentencing on a
separate, pending charge’’).3
At the September 13, 2010 sentencing hearing, the
trial court advised the petitioner that an offer for a
‘‘global resolution’’ of all other charges remained pend-
ing. The terms of that plea offer were fifteen years
incarceration, execution suspended after ten years,
with three years of probation. The court informed the
petitioner that if he accepted that plea offer within the
next four weeks, the court would ‘‘make it retroactive
so [the petitioner] would not lose any time in jail.’’ The
petitioner rejected that offer.
The petitioner subsequently proceeded to a trial on
the charges detailed in the third docket, at the conclu-
sion of which the jury found the petitioner guilty of
attempt to commit robbery in the first degree.4 On April
15, 2011, the court sentenced the defendant to a term
of eleven years incarceration, concurrent to the peti-
tioner’s four year sentence on his violation of probation
conviction. See State v. Smith, 148 Conn. App. 684,
694, 86 A.3d 498 (2014), aff’d, 317 Conn. 338, 118 A.3d
49 (2015).
On May 5, 2011, the petitioner appeared before the
trial court for a plea hearing on the kidnapping charge
contained in the second docket. At that time, the court
advised him that the plea offer was for fourteen years
incarceration, execution suspended after ten years,
with three years of probation, which sentence would
run concurrently with the eleven year sentence he had
received weeks earlier on his attempted robbery convic-
tion. The following colloquy between the court and the
petitioner then occurred:
‘‘The Court: Okay. Just so it’s clear, Mr. Smith, I told
you before, when a case is called in for trial, I was
offering you fourteen years suspended after ten years
with three years of probation to run concurrent[ly] with
the sentence you’re now doing [on the attempted rob-
bery conviction], and I was going to bring it back to
September [13, 2010], the date you went to jail on the
violation of probation. Understood? You got that?
‘‘[The Petitioner]: I’m listening.
‘‘The Court: No. Understand that so far.
‘‘[The Petitioner]: Yeah.’’
The petitioner’s trial counsel, Attorney Thomas
Mitchell-Hoffler,5 then informed the court that the peti-
tioner was concerned that he had lost a total of eighteen
months of credit for presentence confinement.6 Mitch-
ell-Hoffler continued: ‘‘I was explaining to him [that is]
called dead time and because [the petitioner] didn’t
take a global offer on the day [he was] sentenced . . .
on the [violation of probation plea], any time after that
would be dead time.’’ Mitchell-Hoffler then informed
the court that the petitioner was asking for a lesser
sentence in light of that dead time. The court declined
that request and ordered the matter to be placed on
the firm trial list.
Later that day, the matter was recalled. During its
canvass, the court inquired as to whether the petitioner
was satisfied with Mitchell-Hoffler’s representation.
When the petitioner indicated that he wished he had
‘‘more time to think about’’ the offer, the court promptly
concluded its canvass, stating: ‘‘I’m not taking the plea
because he wants more time. He’s not going to come
back later and say there’s a habeas or the judge forced
him to plead. Trial list. That’s it.’’
The matter was called a third time later that day.
After Mitchell-Hoffler assured the court that the peti-
tioner was prepared to enter his plea, the court can-
vassed the petitioner. During that canvass, the
petitioner indicated that he had adequate time to con-
sider the terms of the plea and was satisfied with Mitch-
ell-Hoffler’s representation. The petitioner also
acknowledged that he faced a maximum exposure on
the kidnapping charge of thirty years incarceration, ten
of which were a mandatory minimum, which sentence
could run consecutively to his eleven year sentence for
attempted robbery.7 The petitioner at that time pleaded
guilty, pursuant to the Alford doctrine,8 to both the
kidnapping in the first degree and the criminal violation
of a protective order charges contained in the second
and fourth dockets. On the kidnapping charge, the court
sentenced the petitioner in accordance with the terms
of the plea. On the protective order violation, the court
sentenced him to a concurrent term of one year incar-
ceration. The court thus entered a total effective sen-
tence of fourteen years incarceration, execution
suspended after ten years, with three years of probation,
to run concurrently with the petitioner’s eleven year
sentence for attempted robbery.
The court then explained to the petitioner that, pursu-
ant to that sentence, he would receive jail credit dating
petitioner nor Mitchell-Hoffler raised any issue with
respect to credit for time served prior to that date.
Moreover, the mittimus issued by the court, which was
admitted into evidence at the habeas trial, specified
that the petitioner was entitled to jail credit from Sep-
tember 13, 2010.
The petitioner thereafter filed a direct appeal of his
conviction for attempted robbery, as charged in the
third docket. While that appeal was pending, the peti-
tioner, appearing as a self-represented litigant, filed a
petition for a writ of habeas corpus challenging that
conviction. In his petition, he alleged that the Depart-
ment of Correction (department) had not correctly cal-
culated his jail credit with respect to his sentence for
attempted robbery.
Nineteen months later, this court ruled on the peti-
tioner’s direct appeal and reversed his judgment of con-
viction for attempted robbery due to evidential
insufficiency. See State v. Smith, supra, 148 Conn. App.
685. When our Supreme Court subsequently granted
certification to review that judgment, the petitioner
filed a motion to continue his habeas proceeding. In that
motion, the petitioner, now aided by habeas counsel,
averred that if the Supreme Court affirmed this court’s
judgment, it would render the habeas action moot,
because ‘‘his best relief in the habeas court would be
a new trial’’ on the attempted robbery charge. The court
granted the continuance, thereby postponing the
habeas trial indefinitely.
Approximately one year later, our Supreme Court
affirmed this court’s reversal of the petitioner’s judg-
ment of conviction for attempt to commit robbery in
the first degree and remanded the case to the trial court
with direction to render a judgment of acquittal on that
charge. State v. Smith, 317 Conn. 338, 356, 118 A.3d 49(2015). The petitioner, however, did not withdraw his
habeas corpus petition. Rather, he filed an amended
petition for a writ of habeas corpus that, for the first
time, alleged that he was ‘‘collaterally attacking’’ his
judgment of conviction for kidnapping in the first
degree, as charged in the second docket. In that petition,
the petitioner claimed, inter alia, that Mitchell-Hoffler
rendered ineffective assistance of counsel in that ‘‘he
failed to request that the petitioner be awarded [approx-
imately seven months of] jail credit’’ from February 3,
2010, the date on which his presentence incarceration
commenced, rather than from September 23, 2010.9
A habeas trial was held on December 4, 2015. The
petitioner’s case consisted of the testimony of Mitchell-
Hoffler and the petitioner. In addition, several tran-
scripts of the petitioner’s criminal proceedings, the
August 5, 2011 mittimus, and a certified ‘‘movement
sheet’’ prepared by the department were admitted into
evidence as exhibits. In his testimony, Mitchell-Hoffler
acknowledged that the petitioner was reluctant to enter
a plea on his kidnapping charge and had ‘‘many con-
cerns,’’ including obtaining credit for jail time. Mitchell-
Hoffler testified that he had multiple discussions with
Judge Damiani, the trial judge, about the issue of jail
credit, and ‘‘begged him to give [the petitioner] some
time back on the dead time . . . .’’ In response, Judge
Damiani reminded Mitchell-Hoffler that he was not obli-
gated by law to credit any such jail time, but ultimately
agreed to credit a portion of that time. As Mitchell-
Hoffler recounted on cross-examination:
‘‘[The Respondent’s Counsel]: Judge Damiani was
aware of the dead time issue.
‘‘[Mitchell-Hoffler]: That’s correct.
‘‘[The Respondent’s Counsel]: And Judge Damiani
said to you that he wouldn’t give him that credit. He
wouldn’t put it on the [mittimus].
‘‘[Mitchell-Hoffler]: He was going . . . to use the
[September 13, 2010] date that was given for the [viola-
tion of probation].
‘‘[The Respondent’s Counsel]: So, Judge Damiani
communicated to you and to [the petitioner] that he
would get some credit, but not all.
‘‘[Mitchell-Hoffler]: I’m not sure if those were his
exact words, but he said he was going to give him credit,
so I was happy.
‘‘[The Respondent’s Counsel]: And Judge Damiani
explained to [the petitioner] that if he didn’t take the
offer that he wasn’t going to get any credit.
‘‘[Mitchell-Hoffler]: And that he was going to the trial
list that day, and he would start picking a jury.
‘‘[The Respondent’s Counsel]: And that [the peti-
tioner] was going to get more time than what the
offer was.
‘‘[Mitchell-Hoffler]: [Judge] Damiani warned every-
one that if you didn’t take the offer at that time, if you
came back even a day later, it was going up at least by
a year.’’
Mitchell-Hoffler also testified that, prior to the guilty
plea on the kidnapping charge, he advised the petitioner
that any dead time would not count as credit against
his period of incarceration. Mitchell-Hoffler admitted
that, because the sentences on both the violation of
probation and the kidnapping convictions were to com-
mence on the same date, he had assumed that the
department nonetheless would credit the petitioner’s
jail time back to February 3, 2010. Mitchell-Hoffler testi-
fied that, in light of that assumption, he had advised
the petitioner that he would receive all of his jail credit
and conceded that his advice ultimately was mistaken.
At the same time, when he was asked whether the
petitioner ‘‘was against entering a plea unless he
received all of his jail credit,’’ Mitchell-Hoffler
answered, ‘‘I wouldn’t characterize it as that, no.’’ Mitch-
ell-Hoffler testified that receiving his full jail credit was
but one of several concerns of the petitioner. In addi-
tion, Mitchell-Hoffler testified that, at the time of the
May 5, 2011 plea hearing, the petitioner was exposed
to a sentencing enhancement as a persistent serious
felony offender.10
The petitioner was the second and final witness at the
habeas trial. He testified that he had relied on Mitchell-
Hoffler’s assurance that he would receive credit for all
jail time served. He further testified that the reason he
agreed to the plea on the kidnapping charge was
because he expected to receive ‘‘all of’’ the approxi-
mately seven months of jail credit that had accrued
between the time of his initial confinement and Septem-
ber 13, 2010. On cross-examination, the petitioner
acknowledged that, at the time that he accepted the
plea, the trial court advised him that he would receive
jail credit dating back to September 13, 2010. The peti-
tioner admitted that, when so apprised by the court, he
did not voice any concern or objection.
In its memorandum of decision, the habeas court
found the petitioner’s testimony to be ‘‘unworthy of
belief.’’ The court further concluded that the petitioner
had not demonstrated that, but for Mitchell-Hoffler’s
allegedly deficient performance with respect to his jail
time credit, he ‘‘would have persisted in his request to
have a jury decide his fate rather than take advantage
of Judge Damiani’s proposed disposition.’’ The court
thus denied the amended petition for a writ of habeas
corpus, concluding that the petitioner had not estab-
lished the requisite prejudice. See Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The
petitioner subsequently filed a petition for certification
to appeal to this court, which the habeas court denied,
and this appeal followed.
‘‘When the habeas court denies certification to
appeal, a petitioner faces a formidable challenge, as we
will not consider the merits of a habeas appeal unless
the petitioner establishes that the denial of certification
to appeal amounts to an abuse of discretion.’’ Jefferson
v. Commissioner of Correction, 144 Conn. App. 767,
772, 73 A.3d 840, cert. denied, 310 Conn. 929, 78 A.3d
856 (2013). To prevail, the petitioner must demonstrate
‘‘that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Simms v. War-
den, 230 Conn. 608, 616, 646 A.2d 126 (1994).
We conclude that the petitioner has not sustained
that substantial burden. To prevail on his claim that
Mitchell-Hoffler rendered ineffective assistance of
counsel, the petitioner was obligated to demonstrate
both deficient performance and resulting prejudice. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). For claims arising out of
the plea process, a petitioner ‘‘must show that there is
a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have
insisted on going to trial.’’ Hill v. Lockhart, supra, 474
U.S. 59.
The primary evidence offered by the petitioner to
support such a claim was his own testimony at the
habeas trial. Significantly, the habeas court did not
credit that testimony, deeming it ‘‘unworthy of belief.’’
As our Supreme Court has observed, an appellate court
‘‘does not . . . evaluate the credibility of the witnesses.
. . . Rather, we must defer to the [trier of fact’s] assess-
ment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude. . . . The habeas judge, as the trier of facts,
is the sole arbiter of the credibility of witnesses and
the weight to be given to their testimony.’’ (Internal
quotation marks omitted.) Taylor v. Commissioner of
Correction, 324 Conn. 631, 643–44, 153 A.3d 1264 (2017);
see also Eastwood v. Commissioner of Correction, 114
Conn. App. 471, 484, 969 A.2d 860 (appellate court does
not second-guess findings of habeas court related to
credibility of witnesses), cert. denied, 292 Conn. 918,
973 A.2d 1275 (2009). This court, therefore, cannot dis-
turb the habeas court’s determination that the petition-
er’s testimony was not credible.
In addition, the habeas court heard testimony from
Mitchell-Hoffler. On direct examination, the petitioner’s
habeas counsel suggested that the petitioner ‘‘was
against entering a plea unless he received all of his jail
credit.’’ Mitchell-Hoffler disagreed, stating, ‘‘I wouldn’t
characterize it as that, no.’’ Mitchell-Hoffler also testi-
fied that the petitioner had ‘‘many concerns’’ about
entering a plea and that the jail credit issue was ‘‘one
of’’ those concerns.
Furthermore, the record reveals that the petitioner
faced a maximum exposure on the kidnapping charge
of thirty years incarceration, ten of which were a man-
datory minimum, as the petitioner acknowledged dur-
ing the plea canvass on May 5, 2011. The petitioner
faced additional exposure as a persistent serious felony
offender. See footnote 10 of this opinion. Moreover, the
petitioner faced the prospect of his sentence on the
kidnapping charge running consecutively to his eleven
year sentence for attempted robbery, as well as the
accrual of additional dead time if he proceeded to trial.
Pursuant to the plea offer, the petitioner’s incarceration
would be suspended after he had served ten years on
the kidnapping charge, which sentence ran concur-
rently with the eleven year sentence that he had
received weeks earlier on his conviction for attempted
robbery. As Mitchell-Hoffler testified at the habeas trial,
and as the record plainly reflects, the terms of that offer
effectively meant that the petitioner would not serve
one day more than his existing eleven year sentence
due to the concurrent nature of the plea.
In light of the foregoing, we agree with the habeas
court that the petitioner failed to meet his burden of
proving that, but for his allegedly mistaken belief that
he was going to receive the additional seven months
of jail credit, he would not have accepted that plea offer
and would have insisted on going to trial. We therefore
conclude that the petitioner has not demonstrated that
his ineffective assistance of counsel claim is debatable
among jurists of reason, could be resolved in a different
manner, or is adequate to deserve encouragement to
proceed further. See Simms v. Warden, supra, 230
Conn. 616. Accordingly, the habeas court did not abuse
its discretion in denying the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
That charge was predicated on allegations that the petitioner made a
threatening telephone call to one of his victims while incarcerated.
2
‘‘ ‘[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.’’ Griffin v. Commissioner of Correction, 123 Conn.
App. 840, 843 n.3, 3 A.3d 189, cert. denied, 229 Conn. 906, 10 A.3d 522 (2010).
3
To be clear, the authority of the trial court to award any jail credit to
the petitioner following his September 13, 2010 sentencing on the violation
of probation charge is not at issue in this appeal. We note that this court
recently declined to address a similar issue in Gooden v. Commissioner of
Correction, 169 Conn. App. 333, 339–40 n.3, 150 A.3d 738 (2016) (‘‘[w]e
leave consideration of whether ‘the practice of awarding jail credit when
defendants are not statutorily entitled is an illegal ultra vires act’ for another
day’’); see also Harris v. Commissioner of Correction, 271 Conn. 808, 823,
860 A.2d 715 (2004) (where concurrent sentences are imposed on different
dates, simultaneously accrued jail credit can be applied to first sentence
but cannot be applied to second sentence).
4
The jury found the defendant not guilty on the attempted kidnapping
charge.
5
Mitchell-Hoffler represented the petitioner in the criminal proceedings
on all four dockets detailed in this opinion.
6
Approximately fifteen months had passed between the petitioner’s con-
finement on February 3, 2010, and the May 5, 2011 plea hearing.
7
At the plea hearing, the state proffered the following factual basis for
the kidnapping in the first degree charge: ‘‘[O]n December 1, 2009, [the
petitioner] had been recently released from jail. While he was in jail, appar-
ently he was upset with the behavior of . . . a former girlfriend of his.
When he was released from jail, he found her here in Waterbury, abducted
her from her apartment, took her in a van at knifepoint. She was blindfolded.
[He] [d]rove her around threatening her on a number of occasions. She was
able to get free and suffered . . . minor physical injuries as a result of
the incident.’’
8
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d
248 (2008).
9
The amended petition also alleged that Mitchell-Hoffler (1) rendered
ineffective assistance by failing to conduct a proper investigation, (2) failed
to adequately explain the elements of the charges and the evidence in the
state’s possession, and (3) made ‘‘what the petitioner interpreted as threats,’’
which rendered his plea unknowing and involuntary. Those contentions are
not at issue in this appeal. As the petitioner states in his principal appellate
brief, he ‘‘is not pursuing these claims on appeal. [He] is pursuing only the
claim that he relied on [Mitchell-Hoffler’s] erroneous advice concerning
presentence confinement credits in deciding to accept the plea offer.’’
10
The April 23, 2010 transcript indicates that the state had filed a part B
information against the petitioner. At that time, the trial court advised the
petitioner that the state was ‘‘charging you as a persistent felony offender
saying you have a prior felony conviction. That ups the penalties.’’ At the
May 5, 2011 plea hearing, the state noted that although the petitioner ‘‘does
qualify as a persistent dangerous felony offender . . . given the fact that
the [plea offer] contemplates a sentence less than he would get if he weren’t
a habitual offender, it doesn’t make any sense to have him plead to it.’’