Argued
September 25, 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, 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 appellant (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 attorney, for the
appellee (respondent).
Keller, Elgo and Eveleigh, Js.
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 certification to appeal and (2) incorrectly
concluded that he failed to establish that his trial counsel
rendered ineffective 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 counsel 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 procedural 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-12-0410035-S and CR-12-0412661-S, and guilty under the
Alford doc-trine[2] to criminal violation of a restraining
order in violation of General Statutes § 53a-223b in
Docket No. CR-14-0423367-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-14-0424236-S, and criminal violation of a protective order
in violation of § 53a-223 in Docket No. CR-15-0432507-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 assistance 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 control 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 effective 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
incarceration 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 sentence 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-14-0277421-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 inviolation
of General Statutes § 53a-172 in Docket No.
CR-13-0275489-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 presentence
incarceration credits. On August 3, 2016, the petitioner, now
represented by assigned counsel, filed the operative amended
petition, claiming that trial counsel had rendered
ineffective assistance by failing to adequately preserve the
petitioner's incarceration credits for time already
served and that but for trial counsel's deficient
performance, there was a reasonable probability 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 representing 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 blowing 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 confusing
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, concluding 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 presentence
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 sentence to
include the sixteen days of presentence incarceration 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 Murray 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 probation.
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 concluded 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 commissioner
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 successfully 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
spendon special parole. See id; see also Gonzalez v.
Commissioner of Correction, 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 administered by the Department of
Correction and not by the court, the modification of the
petitioner's definite sentence 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 petitioner has failed to demonstrate
prejudice because pre-sentence confinement credit is an
administrative task that takes place after sentencing. This
claim is unavailing because the issue herein does not concern
whether the respondent properly calculated the
petitioner's ...