Opinion
CV154006868S
04-30-2018
Gifton BAGALLOO v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The plaintiff, Gifton Bagalloo, seeks habeas corpus relief from sixteen years imprisonment, followed by three years special parole, imposed after his guilty plea to the crime of conspiracy to commit murder. The petitioner requests that this court vacate his sentence and guilty plea and remand the matter to the criminal court for further adjudication and/or order the Department of Corrections (DOC) to credit good time in the amount of 893 days.
In his amended petition, the petitioner contends that his defense counsel, Attorney John Walkely, provided ineffective assistance and that his guilty plea was not entered knowingly, intelligently, or voluntarily. The factual core of the petitioner’s claims is that he was never correctly apprised of the circumstance that, because he was already serving a sentence for unrelated crimes when he entered his guilty plea to conspiracy to murder, he would receive jail credit for only part of the time he spent in pretrial confinement with respect to the homicide case. The court makes the following findings of fact and rulings of law.
On November 10, 2008, the court sentenced the petitioner to seven years imprisonment, execution suspended after three years, and three years probation for a narcotics offense and a violation of probation. While serving that sentence, the police, on March 31, 2009, arrested the petitioner for conspiracy to commit murder, and the petitioner remained in custody awaiting disposition on that charge. On August 22, 2013, he pleaded guilty to conspiracy and received a sixteen-year sentence on December 10, 2013.
On that sentencing date, the judicial authority omitted reference to whether the sixteen-year term was concurrent or consecutive to the earlier sentence. In such situations, the sentences run concurrently, State v. Pina, 185 Conn. 473, 478-79 (1981); Redway v. Walker, 132 Conn. 300, 303 (1945).
The three-year sentence terminated on September 10, 2011. Under General Statutes § 18-98d(a)(1)(B), the petitioner only received pretrial jail credit toward the sixteen-year sentence beginning after that date. This was so because previous to that date he was confined as a sentenced prisoner, Lee v. Commissioner, 173 Conn.App. 378, 385-86 (2017). In short, although held in custody on the homicide case, in lieu of bond, since March 31, 2009, the calculation set forth in § 18-98d(a)(1)(B) disallowed jail credit as long as the earlier, three-year sentence continued to run. The petitioner has received pretrial jail credit for confinement from September 10, 2011, to December 10, 2013.
The petitioner testified at the habeas trial that, at the time he pleaded guilty to the conspiracy charge, he believed he would receive full credit against the sixteen-year sentence for the time he spent in pretrial confinement in that case.
The petitioner filed a pro se motion to withdraw his guilty plea to conspiracy based on this perceived error, however the trial court denied that motion on June 23, 2014, Hudock, J. Judge Hudock remarked that he never regarded such pretrial jail credit as part of the plea disposition and, therefore, had no occasion to ensure that the petitioner understood the ramifications of § 18-98d(a)(1)(B) when taking the petitioner’s guilty plea. The petitioner never appealed from that adverse decision.
Invalid Plea Claim
The respondent raised the doctrine of procedural default as a bar to relief as to this claim. The default is the petitioner’s failure to appeal from Judge Hudock’s denial of the motion to withdraw the guilty plea based on the same claim he now asserts.
In Johnson v. Commissioner, 218 Conn. 403 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132 (1993). Once the respondent alleges and establishes procedural default, the burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, 409. The existence of good cause for a procedural default either at trial or on appeal must derive from " some objective factor external to the defense [which] impeded [the petitioner’s] efforts to comply with the state’s procedural rule." Crawford v. Commissioner, 294 Conn. 165, 191 (2009).
The petitioner identifies no cause for his failure to comprehend the effect of § 18-98d(a)(1)(B) except for inadequate or incorrect advice from Attorney Walkley pertaining to the amount of jail credit available to the petitioner to offset a portion of the sixteen-year proposed disposition. Nor does he proffer good cause for failing to appeal from the denial of his motion to withdraw the plea.
As recited above, attorney error cannot, standing alone, satisfy the need to demonstrate good cause for failing to utilize procedural mechanisms to address purported flaws in the judicial process. In the absence of good cause, the court denies the amended petition as to this claim.
Ineffective Assistance Claim
Of course, procedural default has no bearing on the petitioner’s ability to obtain relief for his attorney’s alleged deficiencies. Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403-25 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria require that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and there exists a reasonable likelihood that the outcome of the proceedings would have been different but for the deficient performance. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra. This standard of reasonableness is measured by ordinary, professional competence. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57 (1995). Under these cases, the habeas petitioner must show that, but for counsel’s unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty. Id., at 151; Carraway v. Commissioner, 317 Conn. 594, 600, fn.6 (2015).
Ineffective assistance can include defense counsel’s failure to preserve and maximize pretrial jail credit, if reasonably possible, Gonzalez v. Commissioner, 308 Conn. 463, 487 (2013). Undoubtedly, misinforming a client that he or she will receive jail credit, for which the client is ineligible, comprises ineffective assistance. However, the petitioner does not aver that Attorney Walkley provided him with the wrong information about jail credit. Instead, he contends that Attorney Walkley provided no information about that subject at all.
The petitioner avowed that it came as a surprise to him when he learned that he would not receive credit for every day he was held in pretrial confinement for the homicide case. Attorney Walkley also testified at the habeas trial and completely contradicted the petitioner’s testimony on this point.
Attorney Walkley related that different counsel represented the petitioner for his narcotics and violation of probation matters. When Attorney Walkley found out that the petitioner disposed on his other cases and received a term of imprisonment, he was dismayed that no one supplied him with the details of such a disposition beforehand so that the petitioner’s criminal matters might be resolved in a coordinated fashion. Attorney Walkley expressed his concern with the petitioner and specifically informed the petitioner that the petitioner’s resolution of the other case without consulting with Attorney Walkley beforehand created a " deadtime" scenario whereby the petitioner would receive no jail credit against any prison sentence for the homicide case that preceded the completion of that earlier sentence.
Attorney Walkley attempted to persuade the prosecutor in the homicide case to take this unfortunate and unexpected development into consideration, but the state adamantly refused to adjust the recommended sentence to reflect the loss of jail credit. Attorney Walkley was certain he discussed that refusal with the petitioner before the petitioner decided to accept the state’s offer.
The court finds Attorney Walkley’s testimony to be very credible on this issue and finds that he properly communicated with and advised the petitioner regarding the unavailability of credit for pretrial confinement in the homicide case to diminish the time he would have to serve on the conspiracy sentence.
The petitioner also asserts that Attorney Walkley ought to have requested that the sentencing judge order the DOC to award such jail credit, even though the petitioner was statutorily ineligible for it under § 18-98d(a)(1)(B). In Washington v. Commissioner, 287 Conn. 792 (2008), our Supreme Court disabused trial courts, attorneys, and the DOC from the delusion that judges could recoup pretrial jail credit and circumvent the disqualification posed by the text of § 18-98d(a)(1) by judicial fiat, Id., 802-03. This court has held that defense counsel cannot be faulted for declining to make such an unlawful request, Palmenta v. Warden, Superior Court, Tolland Judicial District d.n. CV 13-4005461 (May 21, 2014); affirmed sub nom. Palmenta v. Commissioner, per curiam, 161 Conn.App. 901 (2015); cert. denied, 320 Conn. 909 (2015).
The court denied the amended petition for habeas corpus relief.