Opinion
No. CV05-4000246-S
August 13, 2007
MEMORANDUM OF DECISION
On December 27, 2004, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended on December 4, 2006. The amended petition raises claims in three counts: first, that petitioner's right to due process of law was violated by the respondent calculating a discharge date in such a manner that it does not comport with the sentencing court's order; second, that petitioner's sentence is in violation of the plea agreement; and third, ineffective assistance of trial counsel. Respondent's return denies the material allegations raised in the amended petition and raises procedural default as to the claims in counts one and two, as well as other defenses. Petitioner has not filed, in accordance with Practice Book § 23-31, a reply to the return.
The matter came before this court on May 25, 2007, for a trial on the merits. The court heard testimonial evidence from the petitioner and Attorney Thomas Virgulto, petitioner's former trial defense counsel. In addition, the court received documents into evidence, consisting of transcripts, copies of court documents and copies of correspondence between petitioner and Virgulto. The court has reviewed all of the testimony and evidence and, including the facts admitted to in respondent's return, makes the following findings of fact. For the reasons set forth more fully below, the petition shall be denied.
FINDINGS OF FACT
1. On May 28, 2003, petitioner committed a robbery at a branch of People's Bank located at 265 Church Street, New Haven (New Haven robbery).
2. On June 4, 2003, petitioner was arrested pursuant to a warrant in docket number CR03-0165218, judicial district of Middlesex at Middletown, in which he was charged with Robbery in the Third Degree, in violation C.G.S. § 43a-134, for an offense that occurred at the Liberty Bank in Clinton (Clinton robbery). Petitioner was found to be in possession of 10 bags of heroin when he was arrested on June 4, 2003. Petitioner was then also arrested on June 4, 2003 in connection with docket number CR03-0165219, judicial district of Middlesex at Middletown, and charged with possession of narcotics in the town of Clinton in violation of C.G.S. § 21a-279(a).
3. Petitioner did not post bond on either docket numbers CR03-0165218 or CR03-0165219 (hereinafter Middletown cases) and was continuously held in lieu of bond on the Middletown cases starting June 4, 2003.
4. As a result of the investigation into the Clinton robbery, petitioner became a suspect in the New Haven robbery. On October 30, 2003, petitioner was arrested for the New Haven robbery and charged with one count of Robbery in the First Degree, in violation of C.G.S. § 53a-134, and one count of Larceny in the Third Degree, in violation of C.G.S. § 53a-124. The matter was assigned docket number CR03-0023338 in the judicial district of New Haven (hereinafter New Haven case).
5. Petitioner did not post bond in the New Haven case and was continuously held in lieu of bond starting October 30, 2003.
6. Petitioner retained Attorney Thomas Virgulto, an attorney admitted to practice in Connecticut since 1992, who represented petitioner in the Middletown cases and the New Haven case.
7. On December 15, 2003, petitioner pleaded guilty in the New Haven case to one count of Robbery in the First Degree, in violation of C.G.S. § 53a-134(a)(4), and was sentenced to ten years to serve followed by ten years special parole. Petitioner also pleaded guilty in docket number CR85-71955 to one count of Violation of Probation, in violation of C.G.S. § 53a-32, which resulted from the charges arising from the Clinton robbery. The sentencing court (Fasano, J.) opened the judgment in CR85-71955, vacated the suspension order, and imposed a sentence of five years to serve, concurrent with the total effective sentence for the Robbery in the First Degree conviction.
8. Judge Fasano stayed execution of the sentence until December 17, 2003, the anticipated sentencing date in Middletown, so that petitioner could have the New Haven and Middletown sentences begin to run on the same date. Judge Fasano specifically advised petitioner that if he was not sentenced in Middletown on the anticipated date, December 17, 2003, petitioner could request a continuance of the stay and the court would extend the stay until such time as he could be sentenced so that the sentences in both matters would run concurrently.
9. On December 17, 2003, Judge Fasano ordered the stay lifted. The sentence of ten years to serve, followed by ten years special parole, was imposed and ordered to begin running on December 17, 2003. Judge Fasano noted for the record that the mittimus was a "no body mitt," which means that because petitioner was already in a correctional facility and was not transported to court, he would not be returning to a correctional facility together with the sentencing mittimus. Attorney Virgulto also was not present when the stay was ordered lifted.
10. The mittimus prepared for the New Haven sentence shows a disposition date of December 15, 2003. The mittimus also shows that the sentence was stayed until December 17, 2003 and would begin on that date. The time sheet maintained by the respondent for the New Haven sentence shows that petitioner was credited with 48 days of presentence confinement credit, reflecting the time period of October 30, 2003 through December 17, 2003. Accordingly, petitioner's discharge date from the New Haven sentence was determined to be October 29, 2013.
11. Petitioner was not sentenced in Middletown on the anticipated date of December 17, 2003. Instead, on December 23, 2003, petitioner entered guilty pleas in the Middletown cases. In docket number CR03-0165218, petitioner pleaded guilty to one count of Attempt to Commit Robbery in the Third Degree, in violation of C.G.S. §§ 53a-49 and 53a-134. In docket number CR03-0165219, petitioner pleaded guilty to one count of Possession of Narcotics, in violation of C.G.S. § 21a-279(a). The court (O'Keefe, Jr., J.) then sentenced petitioner to five years on each count, concurrent with each other, as well as concurrent with sentences then being served.
12. Attorney Virgulto brought to Judge O'Keefe's attention that petitioner had been sentenced in New Haven on December 15, 2003, and that the New Haven sentence had been stayed until December 17, 2003. Virgulto indicated that he had been on trial, could not be in Middletown for the sentencing on December 17, 2003, that an associate was present at that time, and that the matter had been continued to December 23, 2003 for sentencing.
13. Judge O'Keefe gave Virgulto and petitioner the opportunity to continue the matter to determine the potential ramifications of the New Haven and Middletown sentences not starting on the same day. Virgulto indicated that he did not think a continuance would be of any benefit because petitioner would nevertheless be sentenced in Middletown on a date that differed from the New Haven sentencing date.
14. Immediately prior to imposing the sentence, Judge O'Keefe noted that ". . . the mittimus should reflect that [petitioner was] entitled to a certain amount of credit . . ." Respondent's Exhibit D (Transcript December 23, 2003), at pg. 9. Judge O'Keefe also stated that he did not know exactly how much credit petitioner was entitled to, but that he hoped petitioner would get all the credit he deserved. Id., at pgs. 9-10.
15. The mittimus for docket number CR03-165219 does not indicate any presentence confinement credit. The mittimus for docket number CR03-165219 was not entered into evidence, though respondent attached a copy of that mittimus to the return. The mittimus for docket number CR03-165219 also does indicate any presentence confinement credit.
16. Additional facts will be discussed as necessary.
DISCUSSION OF LAW
Petitioner claims in count one that his right to due process of law was violated. According to petitioner, his guilty plea in the New Haven case was entered into with the understanding that he would receive presentence confinement credit on the New Haven case from June 4, 2003 through December 17, 2003. Petitioner emphasizes that that Judge Fasano stated on December 15, 2003, that ". . . the agreement is that with respect to these charges and the Middletown charges, the total effective sentence is ten years to serve followed by ten years of special parole." Petitioner then alleges that his confinement is unlawful because the Department of Correction has established a discharge date that is incorrect and will result in petitioner serving a sentence that is longer than the sentence imposed by the court.
Respondent has raised the affirmative defense of procedural default because petitioner failed to address such a claim first with the trial court in accordance with Cobham v. Commissioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001). In Cobham, the Supreme Court held that before raising via a habeas corpus petition that a sentence is illegal, such sentence must first be challenged either by way of motion to the trial court or on direct appeal. "An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." Id., at 38.
Even assuming petitioner's sentence meets the definition of being an `illegal sentence,' petitioner has not filed a reply to the return and has not alleged the cause and prejudice for the procedural default. See Practice Book § 23-31. Petitioner has the burden of proof to allege and show the cause and prejudice for the procedural default; but has done neither. See, e.g., Fernandez v. Commissioner of Correction, 96 Conn.App. 251, 267, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 98 (2006). Consequently, petitioner's claim in count one is procedurally defaulted.
Even if petitioner had properly alleged and shown the required cause and prejudice, it is uncontroverted that petitioner was arrested on October 30, 2003 for the New Haven offense. Petitioner was held in lieu of bond for that offense starting October 30, 2003, and, in accordance with C.G.S. § 18-98d, could not earn presentence confinement in the New Haven case that predates the actual arrest date. Consequently, the court finds that there is no statutory authority for this or any other court ordering presentence confinement credit on the New Haven sentence for the time period of June 4, 2003 through October 30, 2003.
C.G.S. § 18-98d(a) in relevant part states that: "(1) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed . . ."
In Payton v. Albert, 209 Conn. 23, 33 (1988), the Supreme Court discussed the ". . . unacceptable ramifications of transferring jail time credit between different offenses." The Payton court specifically highlighted that such impermissible transfers of presentence confinement credit can lead to inmates having sentences begin to run before being charged with an offense. Id. The very same concern holds true for the instant petitioner: crediting the New Haven sentence with presentence confinement credit that predates October 30, 2003 is without statutory authority and clearly against public policy of discouraging criminal activity. Id., at 33-34.
And as to petitioner's claim that Judge Fasano indicated that the total effective sentence for all offenses in both New Haven and Middletown was to be ten years to serve, followed by ten years special parole, this court finds that the petitioner in fact received precisely such a sentence and is serving that sentence. Because the Middletown sentence of five years to serve concurrently is one-half of the to-serve portion of the New Haven sentence, making the latter petitioner's controlling sentence, the shorter Middletown sentence is completely subsumed by the New Haven sentence. Petitioner is not statutorily entitled to have presentence confinement credits predating October 30, 2003 applied to the New Haven sentence. Petitioner has, however, received 48 days of presentence confinement credit on the New Haven sentence, exactly the amount he is entitled to in accordance with § 18-98d(a)(1). The court would find, even if petitioner had alleged and shown the cause and prejudice for the procedural default, that his due process claim is wholly without merit.
Petitioner's claim in count two is that there is a violation of the plea agreement because he pleaded guilty with the understanding that his total time incarcerated on all charges and dockets would be ten years. Petitioner alleges that "[t]he state has not honored that plea bargain as the petitioner is now being required to serve additional time above and beyond the ten year period (June 4, 2003-December 17, 2003)." Amended Petition, at 4.
Respondent has also raised procedural default as to the claim in count two. For the identical reasons articulated above as to count one, the court also finds the claim in count two to be procedurally defaulted. Also, similar to the claim in count one, the claim in count two is wholly without merit.
"If the state makes promises to the defendant in order to induce a guilty plea, those promises must be fulfilled[,] . . . [t]he breaking of a promise made by the prosecutor as a result of plea negotiations is sufficient to invalidate a conviction . . . Where, as here, there is a dispute as to the terms of a plea agreement, [the] analysis turns on the real intent of the parties, and most significantly, of [the defendant] . . ." (Internal citations and quotation marks omitted.) State v. Nelson, 23 Conn.App. 215, 219, 579 A.2d 1104 (1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991).
The state's promise as to the sentence petitioner was to serve was ten years, followed by ten years special parole. Judge Fasano explicitly canvassed petitioner as to his understanding of the sentence, its duration and how it ran concurrent with the Middletown sentence. Respondent's Exhibit B (Transcript, Dec. 15, 2003), at 5-6. Petitioner acknowledged that he understood the length of the sentence and that the New Haven and Middletown sentences would run concurrently. The sentences imposed in New Haven and Middletown, as previously discussed in count one, do not exceed the promised total effective sentence.
As to presentence confinement credit, there was no promise by the state as to any such credit to be awarded to petitioner. Judge Fasano asked petitioner if any other promises had been made to induce petitioner to enter his guilty pleas. Id., at 6. Petitioner indicated that no such promises had been made. Although petitioner testified at the habeas trial that he believed he would get credit on the New Haven docket back to June 4, 2003, Attorney Virgulto testified that there was no such agreement and that he did not believe such credit was even possible. Succinctly put, petitioner's testimony is not credible and unavailing in light of the credible testimony by Virgulto and that all relevant plea and sentencing transcripts are utterly devoid of any reference to an agreement as to presentence confinement credit.
Petitioner's third and final claim is that Virgulto rendered ineffective assistance of counsel by failing to file motions to suppress the in-court identification. Petitioner argues that the in-court identification was unduly suggestive. "The people identifying the petitioner were in court, and identified the petitioner while he was being arraigned on criminal charges. The petitioner was not placed in the general gallery, but was segregated from the other criminal defendants. During the entirety of the process the petitioner was in shackles and handcuffs." Petitioner's Brief, at 12.
Respondent's return alleges as a defense to this claim that petitioner has deliberately bypassed the opportunity to contest this issue. First, deliberate bypass has been completely supplanted by procedural default and the cause and prejudice standard. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Second, petitioner's claim in count three is that Virgulto rendered ineffective assistance of counsel for failure to file a motion to suppress, which is not a claim properly raised for the first time with the trial court or on direct appeal.
Petitioner appeared in New Haven at G.A. 23 on June 20, 2003, to be arraigned on the violation of probation charge in docket number CR85-0071955, which had been triggered by the Clinton robbery, for which petitioner was arraigned prior to June 20, 2003. The victim and witnesses to the New Haven robbery were present in court to attempt to make an identification of the individual who committed that robbery. Petitioner was identified as the perpetrator and, as a result of the identification, an arrest warrant issued, resulting in the charge in docket number CR03-0023338.
"In determining whether a pretrial identification procedure violated a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances . . ." To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances . . . State v. Necaise, 97 Conn.App. 214, 219, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).
The arrest warrant application for the New Haven robbery indicates that four witnesses to the robbery were in court on June 20, 2003: three bank employees and one customer. Respondent's Exhibit E. Each witness was paired with a detective and the witnesses observed the petitioner's arraignment in an effort to identify who committed the New Haven robbery. "Teller Cherita Parker reported that Francis Borrelli looked familiar to her because he had the same body build as the person who robbed the bank but she could not be 100% sure he was the robber. Teller Danielle Radford did positively identify Francis Borrelli as the person who robbed the People's Bank on May 28, 2003. The other two witnesses did not recognize anyone in court as the person who robbed the People's Bank." Id.
Appellate tribunals have, of course, found certain identification procedures suggestive. See, e.g., State v. Wooten, 227 Conn. 677, 686, 631 A.2d 271 (1993) (confrontation between victim and suspect seated in back of police car suggestive, but not unnecessarily so); State v. Gardner, 85 Conn.App. 786, 792, 859 A.2d 41 (2004) (show-up conducted one hour after crime committed involved the defendant standing between police officers and being illuminated by lights retains element of suggestiveness, but is in itself not so unduly suggestive that it is improper). The difficulty for petitioner here lies in that he entered a plea of guilty and he is not alleging his guilty plea is constitutionally invalid.
"The general rule is that, absent a statutory exception, a plea of guilty . . . constitutes a waiver of all defects in the prosecution except those involving the canvass of the plea . . ." State v. Fagan, 280 Conn. 69, 89 n. 15, 905 A.2d 1101 (2006), cert. denied, U.S., 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007); State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993). Petitioner's guilty plea here operates as, and constitutes, a waiver of all defects, including any, if at all, that exist regarding the in-court identification. Consequently, the court concludes that there is no basis for petitioner to challenge the in-court identification in the guise of an ineffective assistance of counsel claim for failure to file a motion to suppress.
Based on the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Petitioner's counsel shall prepare and file the judgment file with thirty days.