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Smith v. Commissioner of Correction

Court of Appeals of Connecticut

January 9, 2018

TREMAINE SMITH
v.
COMMISSIONER OF CORRECTION

          Argued October 18, 2017

          Deren Manasevit, assigned counsel, for the appellant (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).

          Keller, Elgo and Beach, Js.

          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 confinement 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 relevant 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 variety 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 petitioner 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 time[2] 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 additional time to ‘‘make an informed decision'' on how to proceed.

         The petitioner declined to proceed with a global resolution 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 incarceration. 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 confinement] credit any time that a prisoner spends incarcerated 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 pending. 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 conclusion 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 petitioner'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 conviction. 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 robbery 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 ...

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