Nicholas R. MAINIERO, Jr.,
Victor LIBURDI, Warden.
Argued Jan. 31, 1990.
John J. Buckley, Sp. Public Defender, for appellant (defendant).
Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson, Asst. State's Atty., for appellee (State).
Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.
[214 Conn. 718] GLASS, Associate Justice.
This is an appeal by the petitioner, Nicholas R. Mainiero, Jr., from the court's denial of his petition for a writ of habeas corpus. The writ was denied because of the habeas court's finding that the petitioner had failed to sustain the burden of proof on his claim that General Statutes § 53a-39  was unconstitutional, [214 Conn. 719] and on
his claim of ineffective assistance of counsel at the time that he pleaded guilty to the charges resulting in his confinement. We find no error.
The petition for a writ of habeas corpus was heard on January 6, 1989, at the Superior Court in New Haven, and the following facts were developed at the hearing and found by the habeas court as reflected in its memorandum of decision and the record. The petitioner was arrested in March, 1984, and charged with sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(2), and risk of injury to a child, in violation of General Statutes § 53-21. Attorney Raymond Kelly, then a public defender, was appointed[214 Conn. 720] to represent the petitioner. Kelly had been a public defender for three years and had handled serious felony matters. Because the petitioner was at least sixteen years of age but had not reached his eighteenth birthday at the time that the charged offenses were allegedly committed, Kelly moved to have the petitioner treated as a youthful offender rather than proceed on the regular criminal docket. This motion was denied. Another motion by Kelly for a reduction of the petitioner's bond, was granted, however, and he was thereafter released. While the petitioner was out on bond, he was charged with two other offenses allegedly committed in February, 1985. These additional charges were assault in the first degree, in violation of General Statutes § 53a-59(a), and larceny in the first degree, in violation of General Statutes §§ 53a-119 and 53a-122(a)(3).
On March 26, 1985, the petitioner's trial commenced on the charges arising out of the March, 1984 incident--sexual assault and risk of injury. After jury selection, the petitioner, on March 27, 1985, "after being completely advised by Attorney Kelly, accepted a plea bargain to the charges on that file and entered an Alford Plea...." See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court found that at the time the plea was entered, the petitioner's uncle, Lawrence Mainiero, was his guardian ad litem. While he was handling the sexual assault and risk of injury charges, Kelly was aware of the additional February, 1985 charges pending against the petitioner. Although the petitioner had been arraigned on the additional charges, the file had not yet been transferred from Part B to Part A of the Superior Court. Nonetheless, after extensive discussions with the trial court and the state's attorney, Kelly was able to effectuate an agreement that included the disposition [214 Conn. 721] of the February, 1985 charges with the disposition of the March, 1984 charges. The petitioner's Part B file containing the February, 1985 charges was then transferred to Part A of the Superior Court for consolidation and disposition with the March, 1984 charges.
The trial court found that the plea bargain disposition of the charges arising out of the March, 1984 incident provided for the petitioner to receive a sentence of five years confinement for the risk of injury and sexual assault charges. The agreement further provided that the sentences for these charges were to run concurrently with the sentences received from the February, 1985 charges of larceny and assault, with an agreed maximum of ten years imprisonment. While the court informed Kelly that he could argue for a lesser sentence, the court stated that it felt that the sentence was fair and that the petitioner would need a favorable presentence investigation report in order to receive a lesser
sentence. Nonetheless, Kelly continued to negotiate for a lesser period of actual incarceration. Finally, he was successful in obtaining an agreement encompassing both files for a total effective sentence of twelve years, execution suspended after eight years of imprisonment, and five years probation. The court found that Kelly discussed with the petitioner and his uncle, the guardian ad litem, the meaning of the agreed sentence. The court also found that Kelly informed the petitioner that he would be required actually to serve five and one-half years of imprisonment and that he could serve a lesser period of imprisonment only through programs that might be provided at the correctional institution.
On June 28, 1985, the petitioner was sentenced as agreed. The petitioner was then seventeen years old. He was confined at the Manson Youth Center until May, 1988, at which time he was transferred to the Cheshire Correctional Center. Prior to commencing this [214 Conn. 722] action, the petitioner applied for a community release program but was found ineligible because of the length of time remaining on his sentence. The petitioner will become eligible for community release, however, in December, 1990, when only thirty months of his sentence remain. The petitioner was also advised that a modification of his sentence, under § 53a-39, was unavailable to him because § 53a-39 precludes modification when a sentence, such as his, exceeds five years.
On appeal the petitioner now claims the following: (1) that General Statutes § 53a-39 is unconstitutional as interpreted and applied by the habeas court; (2) that the habeas court incorrectly applied the law, particularly § 53a-39, in accordance with the clear intent of the law; (3) that the trial court improperly canvassed the petitioner at the time that he pleaded guilty; and (4) that there was ineffective assistance of counsel when he pleaded guilty.
The central issue in this appeal is the petitioner's claim that the habeas court's interpretation and application of § 53a-39 was unconstitutional and not in accordance with its clear intent. We are unpersuaded. Specifically, the petitioner notes that under § 53a-39 a prisoner is eligible to apply for intensive probation only if his sentence is for a period of not less than two years nor more than five years. Furthermore, a prisoner is eligible to apply to the trial court for sentence modification pursuant to § 53a-39 only if his sentence is not in excess of three years. If a prisoner's sentence is in excess of three ...