Summary
In Gonzalez, our Supreme Court affirmed this court's determination that a failure to request a bond increase, which, if granted, would have allowed the petitioner to earn credit for a period of presentence incarceration, was deficient performance because, despite the fact that the ultimate decision of whether to grant the bond increase was discretionary, there was no strategic reason available not to ask for it.
Summary of this case from Dennis v. Comm'r of Corr.Opinion
No. 18688.
2013-05-14
Odilio GONZALEZ v. COMMISSIONER OF CORRECTION.
Michael E. O'Hare, supervisory assistant state's attorney, for the appellant (respondent). Robert J. McKay, special public defender, for the appellee (petitioner).
Michael E. O'Hare, supervisory assistant state's attorney, for the appellant (respondent). Robert J. McKay, special public defender, for the appellee (petitioner).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.
EVELEIGH, J.
The respondent, the commissioner of correction, appeals from the judgment of the Appellate Court, affirming the judgment of the habeas court, which had granted the second amended petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez. Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 707, 1 A.3d 170 (2010). The Appellate Court concluded that the petitioner had a right to counsel at the arraignment stage, which included proceedings pertaining to the setting of bond and the calculation of presentence confinement credit, and that the petitioner's trial counsel had been ineffective in his failure to request an increase in bond on two prior charges so that the petitioner could be credited for presentence confinement on those charges. Id., at 713, 717, 1 A.3d 170. We granted the respondent's petition for certification to appeal limited to the following issues: “1. Whether the Appellate Court properly ruled that the sixth amendment confers a right to the effective assistance of counsel in matters pertaining to credit for presentence confinement? 2. Whether the Appellate Court properly ruled that the petitioner met his burden of showing deficient performance and prejudice within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)?” Gonzalez v. Commissioner of Correction, 298 Conn. 918, 919, 4 A.3d 1226 (2010). We affirm the judgment of the Appellate Court.
The present case was briefed prior to the March 12, 2012 release of the United States Supreme Court decisions in Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). On April 4, 2012, to afford the parties the opportunity to address the import of these cases, we issued the following order: “The parties are hereby ordered, sua sponte, to file simultaneous supplemental briefs addressing the impact of Lafler v. Cooper, [supra, 132 S.Ct. at 1376] and Missouri v. Frye, [supra, 132 S.Ct. at 1399] on the state's claim that there is no right to effective assistance of counsel for matters pertaining to presentence confinement credit. The briefs, which are not to exceed ten ... pages, must be filed on or before April 25, 2012.”
On February 7, 2013, we asked the parties to brief the question of whether this appeal was rendered moot by the expiration of the petitioner's sentence. Upon review of the briefs, we are convinced that the present appeal is not moot because the petitioner would have to serve the seventy-three days for which he received credit if the decision of the habeas court was reversed.
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The petitioner was arrested on April 21, 2006, docket number CR–06–0599898–S, and charged with threatening in the second degree in violation of General Statutes § 53a–62 (first arrest). He was released later that same day on a $500 nonsurety bond. On May 31, 2006, the petitioner was arrested again and charged with breach of the peace in the second degree in violation of General Statutes § 53a–181 and criminal violation of a protective order in violation of General Statutes § 53a–223, docket number CR–06–0600923–S (second arrest). The petitioner was arraigned the following day, and the court set bond in the amount of $35,000. He remained in custody until the court reduced his bond on June 16, 2006, to a promise to appear. On January 12, 2007, the petitioner was arrested for a third time, docket number CR–07–0607605–S, and charged with criminal violation of a protective order in violation of § 53a–223 and harassment in the second degree in violation of General Statutes § 53a–183. He was arraigned, with his counsel present, on January 16, 2007, at which time the court set bond in the amount of $65,000 on his January 12, 2007 arrest, and the petitioner remained in custody, unable to post bond (third arrest).
“The petitioner's counsel, who represented the petitioner in all three matters, requested, on March 30, 2007, that the bonds in connection with the petitioner's first two arrests be increased so that the petitioner could receive presentence confinement credit for those arrests. The court, Ward, J., ordered that the petitioner's bonds resulting from the first two arrests be increased. On May 21, 2007, the petitioner, pursuant to a plea agreement, pleaded guilty to one count of violation of a protective order, arising out of the second arrest, and one count of threatening in the second degree, arising out of the first arrest. All other charges against him were nolled. The court, White, J., sentenced the petitioner on June 11, 2007, to five years incarceration, execution suspended after one year, followed by three years probation for violation of a protective order to be served concurrently with one year of incarceration for threatening in the second degree. At no time did counsel request that the petitioner receive presentence confinement credit for the seventy-three day period between January 16 and March 30, 2007, for one of his first two arrests.
.General Statutes § 18–98d provides in relevant part: “(a)(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; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person's presentence confinement....
“(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person's sentence; provided in no event shall credit be allowed under subsection (a) of this section in excess of the sentence actually imposed.”
“On January 7, 2008, the petitioner filed his second amended petition for a writ of habeas corpus, claiming that counsel was ineffective in failing to request that the petitioner's bond be increased prior to March 30, 2007, and by not asking the court at any time following March 30, 2007, to credit the petitioner with seventy-three days of presentence confinement credit. He argued that had counsel asked for the bond increase on January 16, 2007, or asked that the petitioner be credited with the seventy-three days of presentence confinement credit, the petitioner would have discharged his sentence seventy-three days earlier than calculated. Following a trial, the habeas court, Schuman, J., found that the petitioner met his burden of proving that counsel's performance was deficient and ordered the respondent to credit the petitioner with seventy-three days of presentence confinement credit. The habeas court granted the respondent's petition for certification to appeal, and [the respondent appealed to the Appellate Court].” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 707–709, 1 A.3d 170.
The petitioner, in his habeas petition, alleged that counsel was ineffective not only in failing to request that the bonds for the petitioner's first two arrests be raised at the January 16, 2007 arraignment, but also in failing to request at sentencing that the petitioner be credited with seventy-three days of presentence confinement. The habeas court's decision, however, does not address this allegation. Although counsel at sentencing could have asked the court to take the petitioner's presentence confinement into account when calculating his total effective sentence; see Washington v. Commissioner of Correction, 287 Conn. 792, 829 n. 19, 950 A.2d 1220 (2008) (in determining term of sentence to impose, even if defendant has no right to credit for presentence incarceration, it is within trial court's discretion to consider such incarceration in its sentencing determination); the conclusion in this case rests solely on the argument that counsel was ineffective when, at the January 16, 2007 arraignment, he failed to request that bond in connection with the petitioner's prior arrests be increased in order to maximize the petitioner's presentence confinement credit.
The Appellate Court, in a divided opinion, concluded that “the petitioner had a sixth amendment right to be represented by counsel at his ... arraignment. He was represented by counsel at that arraignment. Because he had a right to counsel and was represented by counsel, the petitioner had a sixth amendment guarantee to the effective assistance of counsel.” Id., at 713, 1 A.3d 170. In reaching its conclusion, the Appellate Court determined that “[t]he habeas court correctly determined that a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner's third arraignment, not two and one-half months later. No evidence to the contrary was presented at the habeas trial. Counsel's conduct fell below an objective level of reasonableness, as it was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law.” Id., at 716, 1 A.3d 170. The Appellate Court further concluded as follows: “There can be no dispute that counsel's failure to request that the bonds be raised at the third arraignment prejudiced the petitioner by exposing him to seventy-three additional days in jail for which he received no credit. This being the case, the petitioner has satisfied his burden of proving that he was prejudiced by counsel's representation.” Id., at 717, 1 A.3d 170. Additional facts and procedural history will be supplied as necessary.
Judge Schaller dissented from the majority's decision affirming the judgment of the habeas court. Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 720, 1 A.3d 170. He would have found that the petitioner was not entitled to counsel because the calculation of presentence confinement credit is not a critical stage of the proceedings. Id., at 726–27, 1 A.3d 170. Further, even assuming that the petitioner was entitled to counsel under the sixth amendment for these matters, he would have concluded that the failure by the petitioner's counsel to seek increased bail did not rise to the level of a constitutional deficiency. Id., at 728–29, 1 A.3d 170.
I
On appeal to this court, the respondent first claims that the Appellate Court improperly affirmed the habeas court's grant of the petitioner's petition for a writ of habeas corpus on the ground that the petitioner was denied the effective assistance of counsel. Specifically, the respondent asserts that the Appellate Court improperly concluded that the petitioner had a sixth amendment right to the effective assistance of counsel for a matter pertaining to presentence confinement because the calculation of presentence confinement credit is not a critical stage of the criminal proceedings. In response, the petitioner asserts that the Appellate Court properly affirmed the habeas court's grant of his petition for a writ of habeas corpus because he had a sixth amendment right to effective assistance of counsel at his arraignment where the presentence confinement issues arose. We agree with the petitioner.
We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991); see also Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011) (“[W]hether the representation a defendant received ... was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” [Internal quotation marks omitted.] ).
“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [supra, 466 U.S. at 686, 104 S.Ct. 2052]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009).
The United States Supreme Court's recognition of the sixth amendment right to counsel dates back to at least 1932 in the case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Historically, the Supreme Court focused on the fact that the sixth amendment right to counsel is needed in order to protect the fundamental right to a fair trial. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
In 1984, the United States Supreme Court decided Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. 2052, where it enunciated that “the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) In doing so, the court again focused on the importance of the right to counsel in protecting the right to a fair trial, stating that “[a]n accused is entitled to be assisted by an attorney ... who plays the role necessary to ensure that the trial is fair.” Id., at 685, 104 S.Ct. 2052.
“In a line of constitutional cases in [the United States Supreme Court] stemming back to the ... landmark opinion in Powell ... it has been firmly established that a person's [s]ixth and [f]ourteenth [a]mendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, [supra, 287 U.S. at 57, 53 S.Ct. 55];Johnson v. Zerbst, [supra, 304 U.S. at 458, 58 S.Ct. 1019];Hamilton v. Alabama, [368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) ]; Gideon v. Wainwright, [supra, 372 U.S. at 335, 83 S.Ct. 792];White v. Maryland, [373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) ]; Massiah v. United States, [377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) ]; United States v. Wade, [388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ]; Gilbert v. California, [388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ]; Coleman v. Alabama, [399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ].
“This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment, and the [United States Supreme Court has also] held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra [399 U.S. at 9–10, 90 S.Ct. 1999]. But the point is that, while members of the [c]ourt have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 688–89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).
“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions' to which alone the explicit guarantees of the [s]ixth [a]mendment are applicable. See Powell v. Alabama, [supra, 287 U.S. at 66–71, 53 S.Ct. 55];Massiah v. United States, [supra, 377 U.S. at 201, 84 S.Ct. 1199];Spano v. New York, [360 U.S. 315, 324, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) ] (Douglas, J., concurring).” Kirby v. Illinois, supra, 406 U.S. at 689–90, 92 S.Ct. 1877.
More recently, the United States Supreme Court has explained as follows: “The [s]ixth [a]mendment right of the ‘accused’ to assistance of counsel in ‘all criminal prosecutions' is limited by its terms: ‘it does not attach until a prosecution is commenced.’ McNeil v. Wisconsin, [501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158] (1991); see also Moran v. Burbine, [475 U.S. 412, 430, 106 S.Ct. 1135, 89 L.Ed.2d 410] (1986). We have, for purposes of the right to counsel, pegged commencement to ‘ “the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” ’ United States v. Gouveia, [467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146] (1984) (quoting Kirby v. Illinois, [supra, 406 U.S. at 689, 92 S.Ct. 1877 (plurality opinion)) ]. The rule is not ‘mere formalism,’ but a recognition of the point at which ‘the government has committed itself to prosecute,’ ‘the adverse positions of government and defendant have solidified,’ and the accused ‘finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’ Kirby [ v. Illinois, supra, 406 U.S. at 689, 92 S.Ct. 1877].” Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008).
In Rothgery v. Gillespie County, supra, 554 U.S. at 211–212, 128 S.Ct. 2578 a plurality of the United States Supreme Court clarified as follows: “Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute.... Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings; what makes a stage critical is what shows the need for counsel's presence. Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.”
Although the Supreme Court made the distinction between the attachment and “critical stage” analysis in Rothgery, it clarified that “[w]e do not here purport to set out the scope of an individual's postattachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis.” Id., at 212 n. 15, 128 S.Ct. 2578.
Accordingly, the question in the present case is whether the arraignment during which the petitioner's counsel failed to request that bond in connection with the petitioner's prior arrests be increased in order to maximize the petitioner's presentence confinement credit was a “critical stage.” The respondent asserts that the right to counsel is not implicated by every issue raised, or every consequence of, a criminal proceeding. The respondent further claims that since the calculation and application of jail credits are a posttrial, administrative matter, counsel's performance with respect to such credits cannot fall within the sixth amendment's guarantee of effective counsel at a criminal prosecution. We disagree. We agree, instead, with the Appellate Court when it stated that “[t]he court acknowledges that the calculation of presentence confinement credit is administered by the department of correction. What is at issue in this case, however, is not the calculation itself but the claimed failure of counsel to take necessary steps during proceedings to protect his client's statutory right to receive his presentence confinement credit.” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 710 n. 4, 1 A.3d 170.
The Supreme Court has held that “the assistance of counsel cannot be limited to participation in a trial,” and extended the protection to “earlier, ‘critical’ stages in the criminal justice process ‘where the resultsmight well settle the accused's fate and reduce the trial itself to a mere formality.’ ” Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), quoting United States v. Wade, supra, 388 U.S. at 224, 87 S.Ct. 1926.
An examination of Supreme Court cases regarding which proceedings constitute critical stages in the criminal justice process is helpful in framing our analysis of the respondent's claim on appeal. First, in 1967, in United States v. Wade, supra, 388 U.S. at 236–37, 87 S.Ct. 1926 the Supreme Court held that there was a right to counsel at a pretrial identification lineup. In so concluding, the court reasoned that “there is grave potential for prejudice ... in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for [the defendant] the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to [the aid of counsel] ... as at the trial itself.’ ” Id.
In 1973, however, the Supreme Court limited the application of Wade. In United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the court refused to extend the right to counsel to a photographic identification procedure conducted in the absence of the defendant. In reaching its conclusion, the court recognized that the sixth amendment right to counsel did not apply to a pretrial photographic identification procedure, because where “accurate reconstruction [of a pretrial confrontation] is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be critical.” Id., at 316, 93 S.Ct. 2568. Because the court believed that any defects in the photographic identification procedure could be exposed at trial, it concluded that the procedure was not a critical stage. Id., at 321, 93 S.Ct. 2568.
As these cases demonstrate, historically, the Supreme Court's focus in a sixth amendment effective assistance of counsel case has centered on protecting the defendant's right to a fair trial. Strickland v. Washington, supra, 466 U.S. at 684, 104 S.Ct. 2052. The Wade and Ash cases established that a pretrial proceeding in a criminal case constituted a critical stage for the purpose of the sixth amendment only where the presence of counsel was necessary to ensure that the defendant received a fair trial. See Maine v. Moulton, supra, 474 U.S. at 170, 106 S.Ct. 477.
The United States Supreme Court recently decided two cases that guide our analysis of the petitioner's claim regarding whether he was entitled to effective assistance of counsel at an arraignment in which a matter pertaining to presentence confinement should have been addressed. In Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012), the United States Supreme Court concluded that a criminal defendant has a sixth amendment right to effective assistance of counsel during plea negotiations, including when he or she rejects a plea bargain as a result of poor legal advice. Writing for the majority in Frye, Justice Kennedy concluded that “[i]t is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The ‘[s]ixth [a]mendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings.’ Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009).... Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea.” (Citation omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1405.
The dissent asserts that Lafler and Frye “are consistent with [its] conclusion that a bond hearing is not a critical stage of the prosecution.” In support of its claim, the dissent relies on the fact that, unlike the request that bail be raised, plea bargaining often serves as a trial substitute and these cases can, therefore, be seen as a reasonable extension of the general principle that the sixth amendment right to counsel is intended to protect the right to a fair trial. Instead, in determining whether a bond hearing is a “critical stage,” the dissent relies on much older cases, such as Gerstein v. Pugh, 420 U.S. 103, 122–23, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (concluding probable cause hearing not “critical stage”), and Justice Alito's concurrence in Rothgery to guide its analysis of whether the arraignment in the present case is a “critical stage.”
First, it is important to remember that the plurality opinion in Rothgery clearly explained that “[w]e do not here purport to set out the scope of an individual's post-attachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis.” Rothgery v. Gillespie County, supra, 554 U.S. at 212 n. 16, 128 S.Ct. 2578. Therefore, we are not persuaded that Rothgery is our best source of guidance on the “critical stage” question, let alone Justice Alito's concurrence in Rothgery.
Moreover, Lafler and Frye represent the Supreme Court's most recent statement on what constitutes a “critical stage” for purposes of the sixth amendment. A review of these cases demonstrates that, although the central focus was on plea negotiations, the Supreme Court did lay out the state of the law on “critical stage” analysis.
In Frye, the Supreme Court stated: “It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The ‘[s]ixth [a]mendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings.’ Montejo v. Louisiana, [supra, 556 U.S. at 786, 129 S.Ct. at 2085] (quoting United States v. Wade, [supra, 388 U.S. at 227–28, 87 S.Ct. 1926] ). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, [supra, 368 U.S. at 52, 82 S.Ct. 157] (arraignment); Massiah v. United States, [supra, 377 U.S. at 201, 84 S.Ct. 1199] (postindictment interrogation); [United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. 1926] (postindictment lineup); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (guilty plea).” Missouri v. Frye, supra, 132 S.Ct. at 1405.
In Lafler, the Supreme Court stated as follows: “[The] petitioner and the [s]olicitor [g]eneral claim that the sole purpose of the [s]ixth [a]mendment is to protect the right to a fair trial. Errors before trial, they argue, are not cognizable under the [s]ixth [a]mendment unless they affect the fairness of the trial itself.... The [s]ixth [a]mendment, however, is not so narrow in its reach. Cf. [Missouri v. Frye, supra, 132 S.Ct. at 1399] (holding that a defendant can show prejudice under Strickland even absent a showing that the deficient performance precluded him from going to trial). The [s]ixth [a]mendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though ‘counsel's absence [in these stages] may derogate from the accused's right to a fair trial.’ United States v. Wade, [supra, 388 U.S. at 226, 87 S.Ct. 1926]. The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice. This is consistent, too, with the rule that defendants have a right to effective assistance of counsel on appeal, even though that cannot in any way be characterized as part of the trial. See, e.g., Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The precedents also establish that there exists a right to counsel during sentencing in both noncapital, see Glover v. United States, 531 U.S. 198, 203–204, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and capital cases, see Wiggins v. Smith, 539 U.S. 510, 538, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because ‘any amount of [additional] jail time has [s]ixth [a]mendment significance.’ ” Lafler v. Cooper, supra, 132 S.Ct. at 1385–86.
As the foregoing language demonstrates, the Supreme Court's reasoning in Lafler and Frye, was not solely based on the idea that plea bargaining is a substitute for trial, and is, therefore, a “critical stage” for purposes of the sixth amendment. To the contrary, the Supreme Court relied on the right to counsel during sentencing as grounds for its holding, recognizing that sentencing does not protect the defendant's right to a fair trial. We conclude that we cannot ignore the most recent Supreme Court cases on the sixth amendment right to counsel and, instead, conclude that they provide meaningful relevant guidance to our analysis of the present appeal.
Frye was a case in which the Missouri Court of Appeals had held that the defendant's trial counsel was ineffective for failing to inform him of a plea offer that was more favorable than the one that he later accepted. Id. In affirming the Missouri Court of Appeals, the Supreme Court stated that “[t]he [s]ixth [a]mendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings.” (Internal quotation marks omitted.) Id. The Supreme Court recognized that its prior decision in Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), established that claims of ineffective assistance of counsel in the plea bargaining context are governed by the two part test set forth in Strickland. Missouri v. Frye, supra, 132 S.Ct. at 1405. The Supreme Court concluded, therefore, that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the [s]ixth [a]mendment right to effective assistance of counsel.” (Internal quotation marks omitted.) Id., at 1406, quoting Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). The Supreme Court stated that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1407. Therefore, the court held that “criminal defendants require effective counsel during plea negotiations. Anything less ... might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” (Internal quotation marks omitted.) Id., at 1407–1408, quoting Massiah v. United States, supra, 377 U.S. at 204, 84 S.Ct. 1199.
In Lafler v. Cooper, supra, 132 S.Ct. at 1384, the Supreme Court vacated and remanded the judgment of the United States Court of Appeals for the Sixth Circuit, but agreed that the petitioner therein was denied effective assistance of counsel because his attorney provided the petitioner with erroneous advice that led him to reject a plea and go to trial. The court agreed that the petitioner suffered prejudice because he “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him.” (Internal quotation marks omitted.) Id. The Supreme Court further concluded that “[t]he constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice.” Id., at 1385. Therefore, the court held that “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Id., at 1387. Our review of Lafler and Frye reveals a recognition by the Supreme Court that the right to a fair trial has expanded to include the right to adequate representation during plea negotiations. Indeed, the Supreme Court has long recognized that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The central question in determining “whether a particular proceeding is a critical stage of the prosecution focuses on ‘whether potential substantial prejudice to the [petitioner's]rights inheres in the ... confrontation and the ability of counsel to help avoid that prejudice.’ ” Jackson v. Miller, 260 F.3d 769, 775 (7th Cir.2001). The “focus of the constitutional protection of [the] right to counsel relates to the adversary character of criminal proceedings and the particular process involved.” United States v. Jackson, 886 F.2d 838, 843 (7th Cir.1989).
In Rothgery, the Supreme Court further recognized that “[t]he cases have defined critical stages as proceedings between an individual and agents of the [s]tate (whether ‘formal or informal, in court or out,’ see United States v. Wade, [supra, 388 U.S. at 226, 87 S.Ct. 1926] ) that amount to ‘trial-like confrontations,’ at which counsel would help the accused ‘in coping with legal problems or ... meeting his adversary,’ United States v. Ash, [supra, 413 U.S. at 312–13, 93 S.Ct. 2568]; see also Massiah v. United States, [supra, 377 U.S. at 201, 84 S.Ct. 1199].” Rothgery v. Gillespie County, supra, 554 U.S. at 212 n. 16, 128 S.Ct. 2578. The Supreme Court further explained that “what makes a stage critical is what shows the need for counsel's presence.” Id., at 212, 128 S.Ct. 2578.
We note that in Hamilton v. Alabama, supra, 368 U.S. at 54, 82 S.Ct. 157 the Supreme Court stated only certain arraignments are a “critical stage.” In Hamilton, the Supreme Court concluded that although an arraignment in Alabama was a “critical stage,” it acknowledged that whether it was a “critical stage” in other jurisdictions depended on the role of an arraignment in that particular jurisdiction. Id. It is important to note, however, that in more recent cases, the Supreme Court has acknowledged that “[c]ritical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea.” Missouri v. Frye, supra, 132 S.Ct. at 1405. Therefore, it seems that more recent Supreme Court cases have not limited only certain arraignments to be “critical stages.”
Nonetheless, an examination of Hamilton supports our conclusion that the arraignment in the present case is a critical stage. In finding that an arraignment constitutes a “critical stage” in Alabama, the Supreme Court relied on the fact that, in that state, “[i]t is then that the defense of insanity must be pleaded ... or the opportunity is lost.... Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is not revisable on appeal.... Pleas in abatement must also be made at the time of arraignment.... It is then that motions to quash based on systematic exclusion of one race from grand juries ... or on the ground that the grand jury was otherwise improperly drawn ... must be made.” (Citations omitted; internal quotation marks omitted.) Hamilton v. Alabama, supra, 368 U.S. at 53–54, 82 S.Ct. 157.
Similarly, in Connecticut, at an arraignment, a defendant must plead certain defenses and make certain requests or the opportunity is lost. Indeed, the request at issue in the present case—that the petitioner's bond in connection with his prior arrests be increased—needed to be made at the petitioner's arraignment or the right to the bond increase would be lost and it would be at a judge's discretion to grant the request at a later date. Certainly, the petitioner served additional time in prison because the request was not made. Accordingly, we conclude that under the test developed in Hamilton, the arraignment in the present case is a “critical stage.”
We agree with the dissent that “[t]he determination of an appropriate pretrial bond is a matter within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. McDowell, 241 Conn. 413, 415, 696 A.2d 977 (1997). When asked to set the same bond on other charges as set in the charge on which the defendant is being arraigned, however, judges routinely grant the request. Further, it is not uncommon for judges in criminal court, upon a recognition of other pending charges, to ask counsel if he or she would like the bond raised in the other case. Certainly arraignment is a “critical stage” because “substantial prejudice ... inheres in the ... confrontation and counsel [may] help avoid that prejudice.” (Internal quotation marks omitted.) Rothgery v. Gillespie County, supra, 554 U.S. at 217, 128 S.Ct. 2578 (Alito, J. concurring), quoting Coleman v. Alabama, supra, 399 U.S. at 9, 90 S.Ct. 1999. In this case, the substantial prejudice is that the petitioner must serve extra time in prison as the result of his attorney's deficient performance.
Moreover, this court has recognized that a defendant is entitled to counsel at an arraignment. In State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985), the defendant asserted that he was entitled to counsel at his extradition hearing. In concluding that he was not entitled to counsel at the extradition hearing, Chief Justice Peters, writing for the court stated as follows: “Contrary to the defendant's argument, the hearing at which he waived formal extradition was not akin to an arraignment at which he would have been entitled to counsel. Hamilton v. Alabama, [supra, 368 U.S. at 54–55, 82 S.Ct. 157]. At an arraignment, a defendant is advised of the charges against him and enters a plea. Practice Book § [37–7].” State v. Falcon, supra, 196 Conn. at 563–64, 494 A.2d 1190.
The dissent avoids the issue that this court has previously concluded that a defendant is entitled to counsel at an arraignment, by framing the issue as whether “counsel's purported failure to request an increase in bond related to the petitioner's two prior arrests ... would constitute a critical stage....” We conclude that the dissent's approach parses the sixth amendment right to counsel at an arraignment too narrowly. We cannot conclude that a defendant is entitled to effective assistance of counsel for some matters at an arraignment and not others that arise during the same arraignment.
In addition, as the United States Supreme Court stated in Rothgery v. Gillespie County, supra, 554 U.S. at 212, 128 S.Ct. 2578 “what makes a stage critical is what shows the need for counsel's presence.” In the present case, it is evident that the petitioner's counsel could have helped him cope with legal problems, namely, making the appropriate requests to ensure that he received adequate credit for his presentence confinement. See United States v. Ash, supra, 413 U.S. at 313, 93 S.Ct. 2568 (“[t]his review of the history and expansion of the [s]ixth [a]mendment counsel guarantee demonstrates that the test utilized by the [c]ourt has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary”).
We further note that the prejudice in this matter did not involve the case in which the petitioner was currently being arraigned. The prejudice involved the other two matters for which the petitioner did not receive his presentence confinement credit. We do not consider this fact to affect the analysis of whether this arraignment was a critical stage for purposes of the sixth amendment. Notably, the same attorney had filed an appearance in all three cases. The United States Supreme Court has already identified pretrial negotiations to be a “critical stage” for purposes of the sixth amendment. See Missouri v. Frye, supra, 132 S.Ct. at 1405;Lafler v. Cooper, supra, 132 S.Ct. at 1384. It is not uncommon that pretrial negotiations would involve multiple separate offenses and that the separate offenses would then be packaged into one global plea. Accordingly, we see no reason why the fact that the prejudice in this matter related to the petitioner's other charges should impact the “critical stage” analysis. As long as the same attorney is representing the defendant on all the charges there is no concern about the lack of information the attorney may possess on one case as opposed to another. Certainly, where there are multiple charges, the petitioner's need for legal advice to help him cope with legal problems becomes even more acute.
In the present case, it is clear that “potential substantial prejudice to the [petitioner's rights inhered]” to the arraignment proceedings and the petitioner's counsel had “the ability ... to help avoid that prejudice....” Jackson v. Miller, supra, 260 F.3d at 775. Specifically, because the petitioner's counsel failed to timely request that the petitioner's bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required. The petitioner was thus denied an essential liberty interest as the result of his counsel's deficient performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner's bonds on the first two cases. The fact that counsel's performance affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel's ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings. On the basis of the foregoing, we conclude that the Appellate Court properly concluded that the petitioner had a sixth amendment right to effective assistance of counsel at the arraignment stage in which proceedings pertaining to the setting of bond and credit for presentence confinement occurred because it is clear that potential substantial prejudice to the petitioner's right to liberty inhered to the arraignment proceedings and the petitioner's counsel had the ability to help avoid that prejudice by requesting that the bond on his first arrest and second arrest be raised at the arraignment on his third arrest. See Id.
In support of this conclusion we rely upon the language of the United States Supreme Court in Mempa v. Rhay, supra, 389 U.S. at 134, 88 S.Ct. 254 that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Clearly, it cannot be questioned that since the petitioner spent extra time in jail as the result of his attorney's error, substantial rights were affected during both the arraignment stage and subsequent hearings when his counsel failed to request a higher bond on the other two cases. Further, it is incongruous to us that the United States Supreme Court would hold that “[a petitioner's] right to effective assistance of counsel applies to certain steps before trial ... [which] include arraignments, postindictment interrogations, postindictment lineup, and the entry of a guilty plea”; (citation omitted; internal quotation marks omitted) Missouri v. Frye, supra, 132 S.Ct. at 1405; and parse that right so that it only applied to matters strictly relating to the criminal trial. Indeed, the petitioner's confinement while he awaits trial, and his potential release based upon a determination of bond, affect the denial of liberty as much as a criminal trial that results in a judgment of conviction. To paraphrase Frye, the right to be represented at arraignment is not some adjunct to the criminal justice system, “it is the criminal justice system.” (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1407.
II
We next address the respondent's claim that the Appellate Court improperly concludedthat the petitionermet his burden of showing deficient performance and prejudice within the meaning of Strickland v. Washington, supra, 466 U.S. at 668, 104 S.Ct. 2052. Specifically, the respondent claims that the record fails to establish either that the performance of the petitioner's counsel was defective or that the petitioner was prejudiced. In response, the petitioner claims that the Appellate Court correctly concluded that the performance of the petitioner's counsel was deficient and that the petitioner was prejudiced by such deficient performance. Specifically, the petitioner asserts that the failure to request an increase in the bonds on the first arrest and second arrest clearly demonstrated deficient performance and the increased jail time, which the petitioner is required to serve as a result thereof, demonstrates prejudice. We agree with the petitioner.
We begin by setting forth the standard of review applicable to this claim. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [supra, 466 U.S. at 698, 104 S.Ct. 2052]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard....
“[Under] the familiar two part test for ineffective assistance of counsel enunciated by the United States Supreme Court in Strickland ... the ... [c]ourt determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment....
“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.... [J]udicial scrutiny of counsel's performance must be highly deferential.... [Moreover], a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 62–63, 951 A.2d 520 (2008).
A
The respondent first claims that the Appellate Court improperly concluded that “a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner's third arraignment, not two and one-half months later.” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 716, 1 A.3d 170. The respondent asserts that on January 12, 2007, when the petitioner was arrested for violation of a protective order, a class D felony, he was already facing prosecution for the same offense from a previous incident with the same victim, as well as prosecution on several misdemeanors. The foremost concern of any competent defense attorney at this point, the respondent contends, would have been avoiding a lengthy period of incarceration for his client and not maximizing his client's credit for presentence confinement. The respondent claims, therefore, that although the failure to seek an increase in the previous bonds was an oversight, it was hardly an error so serious that the petitioner's counsel was not acting as the “ ‘counsel’ ” guaranteed by the sixth amendment. Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052. The respondent further contends that, despite the petitioner's repeated arrests for similar offenses involving the same victim, his counsel was able to negotiate a disposition of all the charges against him that required only a relatively brief period of incarceration. The respondent asserts, therefore, that the representation provided to the petitioner by his counsel did not fall below an objective standard of reasonableness. Id., at 688, 104 S.Ct. 2052. We disagree.
During the habeas trial, Bruce McIntyre, a criminal attorney, testified that he believed, that “it is within the range of competency for an attorney to address the bond issue with every client and, where appropriate, to have it raised to preserve and increase his pretrial credit.” The habeas court found that it could “see no strategic reason why [the] petitioner's defense counsel would not have asked for an increase of bond on January 16 [2007] when the petitioner was arraigned on the newest charges.” Therefore, we reject the respondent's argument that this was a mere oversight by defense counsel that was within the range of competency not to have been addressed by the petitioner's attorney and, accordingly, conclude that the Appellate Court properly determined that the petitioner met his burden of demonstrating that his counsel's performance was deficient.
As noted by the Appellate Court, “[t]he petitioner was the only other witness during the habeas trial. He testified that he had told counsel, prior to his accepting the plea agreement, that he would only plead guilty if he got his presentence confinement credit. He further stated that had he known he would not be credited with his presentence confinement, he would not have pleaded guilty and instead would have gone to trial.” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 713 n. 7, 1 A.3d 170.
Our conclusion is further buttressed by General Statutes § 18–98d, which establishes the procedure through which a confined prisoner receives credit for his presentence confinement. Certainly, an attorney's knowledge of all existing state statutes that could be an aid to his client in either providing a defense or reducing the amount of time his client spends in prison is necessary to providing effective assistance. Therefore, we agree with the Appellate Court that “[t]he habeas court correctly determined that a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner's third arraignment, not two and one-half months later. No evidence to the contrary was presented at the habeas trial. Counsel's conduct fell below an objective level of reasonableness, as it was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law.” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 716, 1 A.3d 170.
See footnote 2 of this opinion for the relevant text of § 18–98d.
The respondent cites Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992), for the proposition that the petitioner herein “was not entitled to error free representation, only representation falling within the range of competence demanded of attorneys in criminal cases....” (Internal quotation marks omitted.) Although we agree that a defendant is not entitled to error free representation, the evidence presented at the habeas trial demonstrated that a competent criminal attorney would have sought to have the petitioner's bond on the first arrest and the second arrest raised at the third arraignment. Accordingly, we find Commissioner of Correction v. Rodriquez, supra, 222 Conn. at 478, 610 A.2d 631, inapplicable to the present case.
B
We next examine whether the Appellate Court properly concluded that the petitioner established the prejudiceprong. Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. 2052. The respondent claims that the Appellate Court improperly concluded that the deficient performance of the petitioner's counsel was prejudicial because it extended the period of time that the petitioner must remain in prison to complete his sentence. Instead, the respondent maintains that the loss of presentence confinement credit does not constitute prejudice within the meaning of Strickland.
In order to satisfy the prejudice prong, a claimant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id., at 686, 104 S.Ct. 2052. “[Prejudice] resulted from a breakdown in the adversary process that renders the result unreliable.” Id., at 687, 104 S.Ct. 2052. “The purpose of the [s]ixth [a]mendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome in the proceeding.... Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the [c]onstitution [of the United States].” Id., at 691–92, 104 S.Ct. 2052.
In the present case, the respondent contends that the petitioner has failed to demonstrate prejudice because he did not claim that his conviction was unreliable or that his sentence was unlawful. Rather, the respondent asserts that the petitioner's only claim is that he did not receive presentence confinement credit for all of the time that he was in custody while awaiting disposition of the charges against him. The respondent asserts that, because “presentence credit is a creature of statute and that ... such credit is not constitutionally required,” it cannot form the basis for a claim of ineffective assistance of counsel. (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 271 Conn. 808, 833, 860 A.2d 715 (2004). The respondent contends that, because the application of presentence credit is governed by § 18–98d, it is determined by factors that are unrelated to the validity of his conviction or the lawfulness of his sentence. Moreover, the respondent further claims that, under § 18–98d, presentence confinement credit is awarded by the respondent after the imposition of sentence and the conclusion of the criminal proceedings. Thus, the respondent maintains, the failure to receive presentence confinement credit is too remote a consequence of the prosecution to be considered a “result of the proceeding” for the purposes of Strickland. Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. 2052. We are not persuaded.
When the bonds in connection with the first two arrests were increased, the petitioner was unable to obtain bail and was eligible to receive presentence confinement credit for the time he spent in jail from March 30, 2007, until sentencing. If the petitioner's counsel had requested that the bonds be increased at the third arraignment on January 16, 2007, the petitioner would have been entitled to seventy-three additional days of presentence confinement credit. We agree with the Appellate Court that “[t]here can be no dispute that counsel's failure to request that the bonds be raised at the third arraignment prejudiced the petitioner by exposing him to seventy-three additional days in jail for which he received no credit. This being the case, the petitioner has satisfied his burden of proving that he was prejudiced by counsel's representation.” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 717, 1 A.3d 170. The respondent asserts that the petitioner has failed to demonstrate prejudice because presentence 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 presentence confinement credit but, rather, involves the failure of the petitioner's counsel to take the necessary and available steps during critical stages of the proceedings to protect his client's statutory right to receive his full presentence confinement credit. Accordingly, we conclude that the Appellate Court properly affirmed the judgment of the habeas court, determining that the petitioner had established prejudice within the meaning of Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. 2052.
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and NORCOTT and VERTEFEUILLE, Js., concurred.
PALMER, J., concurring.
I agree with the majority that the Appellate Court properly affirmed the judgment of the habeas court, which concluded that the petitioner, Odilio Gonzalez, is entitled to seventy-three days of presentence confinement credit (presentence credit) under General Statutes § 18–98d because the petitioner's trial counsel rendered ineffective assistance in failing to obtain a modification of his bond so that he would receive that credit. I also agree with the majority that the determination of whether the petitioner was entitled to the effective assistance of counsel with respect to that presentence credit turns on whether trial counsel's failure to obtain the bond modification at issue implicated a critical stage of the criminal proceeding, because a defendant has a sixth amendment right to the assistance of competent counsel at all critical stages of a criminal prosecution. See, e.g., United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). I part company with the majority, however, insofar as it concludes that arraignment is the critical stage implicated by the petitioner's claim. In my view, the proceeding that gives rise to a right to counsel is not arraignment, which may or may not provide a convenient time for counsel to seek a bond modification but, rather, a bail hearing, the proceeding at which bond may be modified. From my perspective, therefore, the question presented by this appeal is whether a bail hearing is a critical stage of a criminal prosecution, for that is the proceeding implicated by the petitioner's claim and during which counsel improperly failed to seek a bond modification for the purpose of securing presentence credit for the petitioner.
In this regard, I agree generally with the analysis of the dissenting justice, who, in his dissenting opinion, explains in greater detail why a bail hearing and not arraignment is the stage of the proceedings implicated by the petitioner's claim.
Although the issue is not entirely free from doubt, I believe that a bail hearing is such a critical stage. In Coleman v. Alabama, 399 U.S. 1, 7–9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the United States Supreme Court considered whether Alabama's preliminary hearing constituted a critical stage for sixth amendment purposes. The court explained that “the sole purposes of a preliminary hearing are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury, and, if so, to fix bail if the offense is bailable.” Id., at 8, 90 S.Ct. 1999. The court also observed, as the Alabama Court of Appeals had explained, that, “[a]t the preliminary hearing ... the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case. Also [binding precedent] ... bars the admission of testimony given at a pre-trial proceeding [in which] the accused did not have the benefit of cross-examination by and through counsel. Thus, nothing occurring at the preliminary hearing in [the] absence of counsel can substantially prejudice the rights of the accused on trial.” (Citation omitted; internal quotation marks omitted.) Id. The court nevertheless concluded that, contrary to the determination of the Alabama Court of Appeals, the preliminary hearing constituted a critical stage at which the defendant was entitled to counsel. Id., at 9–10, 90 S.Ct. 1999. In reaching its conclusion, the court identified four reasons why the “guiding hand of counsel at the preliminary hearing is essential”; id., at 9, 90 S.Ct. 1999; one of which was that “counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.” (Emphasis added.) Id. It seems unlikely that the court would have made express reference to counsel's important role “in making effective arguments for the accused on ... the necessity for ... bail”; id.; if the court did not intend for the bail hearing component of the preliminary hearing to be considered a critical stage under the sixth amendment.
Indeed, in Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir.2007), the United States Court of Appeals for the Second Circuit recently characterized Coleman as holding that a bail hearing is a critical stage at which a defendant is entitled to counsel. The court in Higazy explained: “In the [s]ixth [a]mendment context, the [United States] Supreme Court found that a bail hearing is a critical stage of the [s]tate's criminal process at which the accused is as much entitled to such aid (of counsel) ... as at the trial itself. Coleman v. Alabama, [supra, 399 U.S. at 9–10, 90 S.Ct. 1999].... This accords with [Second Circuit] case law on bail hearings. In United States v. Abuhamra, 389 F.3d 309, 323 (2d Cir.2004), [the court] wrote that [b]ail hearings fit comfortably within the sphere of adversarial proceedings closely related to trial. There, [the court] explained that ... [b]ail hearings, like probable cause and suppression hearings, are frequently hotly contested and require a court's careful consideration of a host of facts about the defendant and the crimes charged.... Bail hearings do not determine simply whether certain evidence may be used against a defendant at trial or whether certain persons will serve as trial jurors; bail hearings determine whether a defendant will be allowed to retain, or [be] forced to surrender, his liberty during the pendency of his criminal case. Id. at [323–24].” (Citation omitted; internal quotation marks omitted.) Higazy v. Templeton, supra, 505 F.3d at 172–73. I agree with these observations of the Second Circuit Court of Appeals, whose decisions we generally give special consideration when applying federal law. E.g., State v. Dyous, 307 Conn. 299, 318–19, 53 A.3d 153 (2012).
Other courts have reached the same conclusion. See, e.g., Smith v. Lockhart, 923 F.2d 1314, 1319 (8th Cir.1991) (observing that “[a]t least two of [the defendant's] motions constituted important matters in which the assistance of counsel could have been of critical importance ... [including the] motion to reduce bail, which the prosecutor vigorously resisted,” and concluding that hearing on those motions constituted critical stage of proceedings because, inter alia, “[t]he [United States] Supreme Court [in Coleman v. Alabama, supra, 399 U.S. at 9, 90 S.Ct. 1999] ... recognized the special role played by counsel at preliminary hearings in which bail reduction motions are considered”); Hurrell–Harring v. State, 15 N.Y.3d 8, 20, 930 N.E.2d 217, 904 N.Y.S.2d 296 (2010) (following Higazy and concluding that “[t]here is no question that a bail hearing is a critical stage of the [s]tate's criminal process” [internal quotation marks omitted] ).
The United States Supreme Court has stated that the term “ ‘critical stage’ ... denote[s] a step of a criminal proceeding ... that [holds] significant consequences for the accused.” (Citations omitted.) Bell v. Cone, 535 U.S. 685, 695–96, 122 S.Ct. 1843, 152 L.Ed.2d 914 2002). Because the primary purpose of a bail hearing is to determine whether a defendant will remain incarcerated or be released in advance of trial, the defendant's liberty interest is directly implicated, and, therefore, the hearing most certainly holds “significant consequences” for the defendant. Id., at 696, 122 S.Ct. 1843. Those consequences are especially great because a defendant who is released from confinement pending trial may be better able to assist counsel in preparing for that trial, or to maintain employment so as to afford counsel of choice, or both. In sum, given the nature and importance of the interests at stake, I see no reason why a defendant should not be entitled to the assistance of counsel at a bail hearing, and I therefore would affirm the judgment of the Appellate Court. Accordingly, I concur in the result. ZARELLA, J., dissenting.
The majority opinion effectively broadens the scope of the sixth amendment beyond what is recognized under either the language of the amendment or the jurisprudence of the United States Supreme Court, which has applied the right to counsel in the pretrial context only with respect to “critical stages” of the prosecution when an accused confronts the possibility of prejudice in the adversarial process. Thus, I cannot agree with the majority that, at an arraignment for a third arrest, an attorney's failure to request an increase in his client's bonds relating to two prior arrests occurs as part of a critical stage of the proceedings. I am persuaded that the majority's focus on the arraignment for the petitioner's third arrest, rather than the bond proceedings relating to the two prior arrests, is misplaced. To the extent that the arraignment for the third arrest was a critical stage of the criminal proceedings related to that arrest, the bond determinations made in connection with the petitioner's two prior arrests were not part of a critical stage of those proceedings. Because I am not persuaded that a bond hearing is a critical stage under the sixth amendment, I instead would hold that the petitioner was not denied his constitutional right to the effective assistance of counsel at the time of the purported violation and would reverse the judgment of the Appellate Court. Accordingly, I respectfully dissent.
As the majority sets out more fully in its opinion, this appeal arises from a petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez, in which he alleged that his convictions and incarceration were “illegal because they were obtained in violation of his federal constitutional right to the effective assistance of counsel....” At the time of his arrest on January 12, 2007, the petitioner, who had been arrested and released on a promise to appear and on a nonsurety bond, respectively, on two prior occasions, was unable to post bond with respect to his third arrest and was taken into custody following his January 16, 2007 arraignment. On March 30, 2007, the petitioner's counsel requested that the trial court increase the petitioner's bonds with respect to the first and second arrests in order to maximize the petitioner's potential eligibility for presentence confinement credit under General Statutes § 18–98d, which the trial court did. The petitioner entered a guilty plea to two charges on May 21, 2007, pursuant to a plea agreement, and was sentenced on June 11, 2007. Under the terms of the agreement, the petitioner pleaded guilty to counts arising out of his first and second arrests, and the charges related to the third arrest—for which the seventy-three days from January 16 through March 29, 2007, might have been credited—were nolled. The petitioner relies on this seventy-three day period from his third arrest through the decision of the trial court to raise his bonds in connection with the other two arrests as the basis for his claim of ineffective assistance of counsel.
The petitioner claims that the failure of counsel to request an increase in bond prior to March 30, 2007, constituted ineffective assistance of counsel because it “caused a loss of [seventy-three] days of presentence credit [to which the] petitioner would have been entitled.” The respondent, the commissioner of correction, maintains, however, that the petitioner was not deprived of his constitutional right to the effective assistance of counsel at the time of the alleged deficiency because it did not occur within the context of a critical stage of the prosecution. Accepting the petitioner's argument, the majority concludes that the petitioner's counsel, in failing to request an increase in the bonds relating to the first and second arrests at the time of the petitioner's arraignment for the third arrest, performed deficiently in his representation of the petitioner.
I disagree with the majority because I am not persuaded that the injury about which the petitioner complains occurred during a critical stage of the prosecution, which would render the sixth amendment right to the effective assistance of counsel inapplicable. Specifically, I am convinced that the majority improperly focuses on the arraignment for the third arrest, rather than the bail determinations relating to the prior arrests, as the relevant procedure for its critical stage analysis. Bail determinations, although often addressed concurrently with arraignments, also can be addressed at other times, and the fact that an arraignment is a critical stage of a prosecution cannot transform an ancillary proceeding, such as a bail determination, into a critical stage simply by association.
Although the concurring justice focuses, as I do, on whether a bond hearing is a critical stage, he reaches the opposite conclusion because of his emphasis on the trial preparation advantages that a defendant may obtain when he is represented adequately at a bond hearing. Notably, the concurring justice emphasizes that “a defendant who is released from confinement pending trial may be better able to assist counsel in preparing for ... trial or to maintain employment so as to afford counsel of choice, or both.” Such considerations are undoubtedly important to a defendant, but I disagree that they implicate the defendant's sixth amendment right to counsel. See, e.g., United States v. Stanford, 722 F.Supp.2d 803, 811 (S.D.Tex.2010) (rejecting contention that pretrial detention violated defendant's “[s]ixth [a]mendment right to prepare for trial with assistance of counsel”), aff'd, United States Circuit Court of Appeals, 394 Fed.Appx. 72 (5th Cir.2010); see also United States v. Poulsen, United States District Court, Docket No. CR02–06–129, 2008 WL 161328 (S.D.Ohio January 15, 2008) (although defendant's expertise was necessary with respect to preparation for trial, “[t]he [c]ourt [was] not convinced ... that [the defendant's] need to be centrally involved in mapping out his defense [could not] be comfortably accommodated with appropriate modifications to the terms of his incarceration”); cf. Rothgery v. Gillespie County, 554 U.S. 191, 216, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (Alito, J., concurring) (observing that United States Supreme Court has “held that [the term ‘defense’ in the sixth amendment] means defense at trial, not defense in relation to other objectives that may be important to the accused”).
In a similar vein, I also disagree with the majority to the extent that it accepts the petitioner's implicit premise that he was entitled to an increase in his bonds solely to avail himself of presentence confinement credit, and that counsel's failure to request such an increase rose to the level of constitutionally deficient representation, because the decision to raise or lower bond is within the sound discretion of the trial court, and an increase need not have been granted simply because it was requested by the petitioner's counsel. I address these concerns in turn.
The majority correctly indicates that the basis of the petitioner's claim is grounded in § 18–98d, which allows for pretrial confinement credit when an accused cannot or does not post bond. That statute, however, does not give an accused the right to an increased bond on charges for which he already has posted bond and has been released.
I begin by briefly summarizing the applicable legal principles. First, with respect to the writ of habeas corpus, this court has emphasized that “[h]abeas corpus provides a special and extraordinary legal remedy for illegal detention.... The deprivation of legal rights is essential before the writ may be issued.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 815, 786 A.2d 1091(2002). “Thus, ordinarily a habeas corpus petitioner must establish some fundamental constitutional violation entitling him to relief.” Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992).
The constitutional provision on which the petitioner relies is the sixth amendment to the federal constitution. The relevant clause of the sixth amendment, which is made applicable to the states through the due process clause of the fourteenth amendment; see, e.g., Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” (Emphasis added.) U.S. Const., amend. VI. “As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, 307 Conn. 342, 351, 53 A.3d 983 (2012).
The United States Supreme Court has long emphasized that “the [s]ixth [a]mendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” (Emphasis added.) Strickland v. Washington, supra, 466 U.S. at 684, 104 S.Ct. 2052; see also Johnson v. Zerbst, 304 U.S. 458, 462–63, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “Thus, the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the [s]ixth [a]mendment guarantee is generally not implicated. United States v. Cronic, [466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ].” (Internal quotation marks omitted.) Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see also Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)(“ ‘benchmark’ ” of right to counsel under Strickland is “fairness of the adversary proceeding”); United States v. Cronic, supra, 466 U.S. at 653, 104 S.Ct. 2039 (“[w]ithout counsel, the right to a trial itself would be ‘of little avail’ ”); United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (right to counsel “is meant to [ensure] fairness in the adversary criminal process”).
Acknowledging the changes in prosecutorial practice that have occurred since the sixth amendment was crafted, however, the United States Supreme Court gradually has broadened the protections thereunder, finding it applicable not only to an accused's defense at the trial itself, but also to those “critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality.” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); accord United States v. Ash, 413 U.S. 300, 310, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). “This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” (Emphasis added.) United States v. Ash, supra, 413 U.S. at 310, 93 S.Ct. 2568. As the United States Supreme Court explained in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), it “has held that a person accused of crime requires the guiding hand of counsel at every step in the proceedings against him, Powell v. Alabama, [287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ], and that that constitutional principle is not limited to the presence of counsel at trial. It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the [s]tate at any stage of the prosecution, formal or informal, in court or out, [when] counsel's absence might derogate from the accused's right to a fair trial. United States v. Wade, supra, [at 226, 87 S.Ct. 1926]. Accordingly, the principle of Powell ... and succeeding cases requires that [the court] scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It [requires the court] to analyze whether potential substantialprejudice to [the] defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. Id., [at 227, 87 S.Ct. 1926].” (Internal quotation marks omitted.) Coleman v. Alabama, supra, at 7, 90 S.Ct. 1999.
“Applying this test, the [United States Supreme] Court has held that ‘critical stages' include the pretrial type of arraignment [during which] certain rights may be sacrificed or lost, Hamilton v. Alabama, 368 U.S. 52, 54 [82 S.Ct. 157, 7 L.Ed.2d 114] (1961), see White v. Maryland, 373 U.S. 59 [60, 83 S.Ct. 1050, 10 L.Ed.2d 193] (1963), and the pretrial lineup, United States v. Wade, supra [388 U.S. at 236–37, 87 S.Ct. 1926];Gilbert v. California, [388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ]. [Compare] Miranda v. Arizona, 384 U.S. 436 [469, 86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), [in which] the [c]ourt held that the privilege against compulsory self-incrimination includes a right to counsel at a pretrial custodial interrogation.” Coleman v. Alabama, supra, 399 U.S. at 7, 90 S.Ct. 1999.
An accused's right to counsel is said to attach “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006), quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985); see also Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (“[t]he [s]ixth [a]mendment right of the accused to assistance of counsel in all criminal prosecutions is limited by its terms: it does not attach until a prosecution is commenced” [internal quotation marks omitted] ); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (“the right to counsel granted by the [s]ixth and [f]ourteenth [a]mendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him”). Although the United States Supreme Court has declined to delineate the boundaries of the postattachment right to counsel, it nevertheless has indicated that a key inquiry is whether a critical stage is involved. In Rothgery, for instance, the court explained that, “[o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings; what makes a stage critical is what shows the need for counsel's presence.” Rothgery v. Gillespie County, supra, at 212, 128 S.Ct. 2578. As the court emphasized in Strickland, however, the presence of counsel alone is insufficient; “the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. 2052, quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). By the same token, where there is no right to counsel, the mere presence of counsel does not in and of itself trigger a constitutional right to the effective assistance of counsel when none would exist for an unrepresented defendant. See Wainwright v. Torna, 455 U.S. 586, 587–88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982).
With these principles in mind, I begin by noting that, although I agree with the majority's conclusion that the petitioner's right to counsel had attached at the time of counsel's purported failure to request an increase in bond related to the petitioner's two prior arrests, I disagree that such bail matters would constitute a critical stage and that habeas relief would therefore be appropriate. Cf. Rothgery v. Gillespie County, supra, 554 U.S. at 213–14, 128 S.Ct. 2578 (Alito, J., concurring) (“ ‘[A]ttachment’ signifies nothing more than the beginning of the defendant's prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel.”). In essence, the majority appears to conclude that, because arraignment is a critical stage, and bail matters may be addressed at arraignment, the failure to address bond issues relating to the first two arrests at the arraignment for the third arrest therefore transformed the proceedings relating to bail and presentence confinement credit themselves into critical stages. In my view, however, this is an unwarranted leap. Although arraignments are critical stages with respect to the charges for which the accused is being arraigned; see, e.g., State v. Pierre, supra, 277 Conn. at 94, 890 A.2d 474;State v. Falcon, supra, 196 Conn. at 563–64, 494 A.2d 1190; I am not persuaded that this alone is sufficient to transform matters such as the raising or lowering of the bond set for prior arrests into critical stages simply by association. The fact that the arraignment may have afforded the petitioner's counsel an opportunity to make this request does not necessarily mean that any matter potentially raised at that stage should likewise be treated as a critical stage. Accordingly,my resolution of this issue would turn on whether a bond hearing, rather than an arraignment, is a critical stage.
The majority concludes that the manner in which I analyze this issue “parses the sixth amendment right to counsel at an arraignment too narrowly.” Footnote 7 of the majority opinion. I am persuaded, however, that the majority's interpretation of an arraignment is inappropriately broad for purposes of its critical stage analysis. In fact, the majority itself explains that, “[a]t an arraignment, a defendant is advised of the charges against him and enters a plea.” Text accompanying footnote 7 of the majority opinion; see also General Statutes § 54–1b (governing arraignment of accused persons). Notably, the majority's definition of arraignment does not include any requirement that bond matters relating to arrests for which an accused already has been arraigned be reconsidered in light of the new arrest. Instead, the elements that the majority describes are what make an arraignment a critical stage under our law, because “certain rights may be sacrificed or lost” if an accused were to proceed without the effective assistance of counsel. Coleman v. Alabama, supra, 399 U.S. at 7, 90 S.Ct. 1999.
In the present case, however, the petitioner already had been arraigned in connection with both of his prior arrests, and there is no indication that, at either of those earlier arraignments, the petitioner's counsel failed to advise the petitioner of the charges against him, failed to assist him in entering a plea, or otherwise provided constitutionally deficient representation. Unlike the majority, which “see[s] no reason why the fact that the prejudice in this matter related to the petitioner's other charges should impact the ‘critical stage’ analysis”; footnote 8 of the majority opinion; I find the fact that the purported prejudice was unrelated to the arraignment for the third arrest to be of vital importance to the analysis, because this further suggests that the alleged violation could not have occurred within the context of a critical stage. Requests for bond increases in other cases, although potentially addressed at an arraignment for an unrelated arrest, need not occur at that time, and are not what makes an arraignment a critical stage; the absence of such a request at an arraignment, as in the present case, thus cannot give rise to a sixth amendment violation.
Several of our sister states and various federal courts have concluded that a bond hearing is not a critical stage under the sixth amendment. E.g., United States v. Hooker, 418 F.Supp. 476, 479 (M.D.Pa.), aff'd mem., 547 F.2d 1165 (3d Cir.1976), cert. denied, 430 U.S. 950, 97 S.Ct. 1591, 51 L.Ed.2d 799 (1977); Fenner v. State, 381 Md. 1, 23, 846 A.2d 1020, cert. denied, 543 U.S. 885, 125 S.Ct. 158, 160 L.Ed.2d 143 (2004). But see Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir.2007) (suggesting in dictum that bail hearing is critical stage under Coleman v. Alabama, supra, 399 U.S. at 9–10, 90 S.Ct. 1999);Hurrell–Harring v. State, 15 N.Y.3d 8, 20, 930 N.E.2d 217, 904 N.Y.S.2d 296 (2010) (quoting Higazy with approval). The Maryland Court of Appeals, for instance, considered whether an accused was entitled to counsel at a bail review hearing in Fenner v. State, supra, 381 Md. at 19, 846 A.2d 1020. After considering the principles of sixth amendment jurisprudence, as articulated by the United States Supreme Court; id., at 19–20, 846 A.2d 1020; the court in Fenner concluded that it was “not prepared ... to hold that a bail review hearingis a ‘critical stage’ of criminal proceedings, at which provided counsel is required. Accordingly ... generally ... there exists no [s]ixth [a]mendment right to provided counsel during a bail review hearing....” Id., at 23, 846 A.2d 1020; see also Padgett v. State, 590 P.2d 432, 436 (Alaska 1979) (“[t]he setting of bail is ... not an adversary confrontation wherein potential substantial prejudice to the defendant's basic right to a fair trial inheres ... but rather is limited to the issue of interim confinement”), citing United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. 1926;State v. Williams, 263 S.C. 290, 295, 210 S.E.2d 298 (1974) (bail hearing not critical stage of criminal prosecution). Similarly, in People v. Collins, 298 Mich.App. 458, 828 N.W.2d 392 (2012), the Michigan Court of Appeals concluded that a bond revocation hearing “was not a critical stage in the proceeding because it did not have any effect on the determination of [the] defendant's guilt or innocence.” (Internal quotation marks omitted.) Id., at 470, 828 N.W.2d 392. The United States District Court for the Middle District of Pennsylvania likewise explained that “[a] bail reduction hearing is not a ‘critical stage’ of the proceedings [during which] the defense on the merits would be impaired without the assistance of counsel. Gerstein v. Pugh, 420 U.S. 103, 122, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States ex rel. Reed v. Anderson, 461 F.2d 739, 742 (3d Cir.1972).” United States v. Hooker, supra, 418 F.Supp. at 479; see also Quadrini v. Clusen, 864 F.2d 577, 586 n. 8 (7th Cir.1989).
In Higazy v. Templeton, supra, 505 F.3d at 161, however, the Second Circuit Court of Appeals indicated that the United States Supreme Court had “found that a bail hearing is a ‘critical stage of the [s]tate's criminal process at which the accused is as much entitled to such aid ... as at the trial itself.’ ” Id., at 172, quoting Coleman v. Alabama, supra, 399 U.S. at 10, 90 S.Ct. 1999; accord Hurrell–Harring v. State, supra, 15 N.Y.3d at 20, 904 N.Y.S.2d 296, 930 N.E.2d 217. Such a characterization of Coleman, however, both was unnecessary to the holding of Higazy and overstated the court's holding in Coleman, and, therefore, does not alter my conclusion that a bail hearing is not a critical stage within the meaning of the sixth amendment. In Coleman, the UnitedStates Supreme Court considered whether a preliminary hearing under Alabama law constituted a critical stage under the sixth amendment. See Coleman v. Alabama, supra, at 3, 90 S.Ct. 1999. The Alabama preliminary hearing, however, addressed more than bail; under the applicable state law, “the sole purposes of [the] preliminary hearing [were] to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury and, if so, to fix bail if the offense is bailable.” Id., at 8, 90 S.Ct. 1999.
We previously have explained that “decisions of the Second Circuit, while not binding [on] this court, nevertheless carry particularly persuasive weight in the resolution of issues of federal law when the United States Supreme Court has not spoken on the point. See Szewczyk v. Dept. of Social Services, 275 Conn. 464, 475, 881 A.2d 259 (2005) (statutory interpretation); Schnabel v. Tyler, 230 Conn. 735, 742–43, 646 A.2d 152 (1994) (qualified immunity under 42 U.S.C. § 1983).” (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 783–84, 23 A.3d 1192 (2011). This principle is inapposite in the present case, however, because the court's statement in Higazy that a bail hearing is a critical stage was dictum and also was premised on an incomplete construction of Coleman. Indeed, although Higazy briefly analyzed other constitutional provisions by way of analogy, its holding related to an arrestee's fifth amendment right against compulsory self-incrimination and whether a bail hearing was an element of the “criminal case” against him. Higazy v. Templeton, supra, 505 F.3d at 173.
Thus, Coleman could not have settled the issue of whether a bail hearing, rather than a proceeding such as a preliminary hearing under Alabama law, constitutes a critical stage. Indeed, Coleman 's express reliance on Wade belies such an argument. See id., at 9, 904 N.Y.S.2d 296, 930 N.E.2d 217. As the United States Supreme Court emphasized in Wade, the primary inquiry is “whether the presence of [the defendant's] counsel is necessary to preserve the defendant's basic right to a fair trial....” United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. 1926. This principle led the Supreme Court to conclude that a preliminary hearing in Alabama is a critical stage, not because bail may be set therein, but because “the guiding hand of counsel at the preliminary hearing is essential to protect [an] ... accused against an erroneous or improper prosecution.” Coleman, supra, 399 U.S. at 9, 90 S.Ct. 1999. For this reason, I am likewise unpersuaded by the decision of the New York Court of Appeals in Hurrell–Harring v. State, supra, 15 N.Y.3d at 20, 904 N.Y.S.2d 296, 930 N.E.2d 217, which adopts Higazy 's characterization of Coleman. Accordingly, under the foregoing principles, I would conclude that a bond hearing is not a critical stage under the sixth amendment.
Because my focus is on bond, rather than on arraignment, I am persuaded that the decisions in Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), which were decided by a divided United States Supreme Court while the present appeal was pending, are consistent with my conclusion that a bond hearing is not a critical stage of the prosecution. Lafler and Frye both addressed the scope of the sixth amendment right to counsel in the context of plea offers that are rejected as a result of allegedly deficient legal advice. See Missouri v. Frye, supra, 132 S.Ct. at 1404;Lafler v. Cooper, supra, 132 S.Ct. at 1383. The United States Supreme Court determined that the consideration and negotiation of plea bargains that are allowed to lapse or are rejected could constitute a “critical stage” for sixth amendment purposes, even when the defendant later receives a trial free of constitutional defects, as in Lafler, or subsequently pleads guilty, but on less favorable terms, as in Frye. See Missouri v. Frye, supra, 132 S.Ct. at 1407 (“[i]n today's criminal justice system ... the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant”); Lafler v. Cooper, supra, 132 S.Ct. at 1384 (“[d]efendants have a [s]ixth [a]mendment right to counsel, a right that extends to the plea-bargaining process”).
Although Lafler and Frye expanded the scope of the sixth amendment right to counsel, a point that the dissenting justices in those decisions took pains to highlight; see Missouri v. Frye, supra, 132 S.Ct. at 1414 (Scalia, J., dissenting); Lafler v. Cooper, supra, 132 S.Ct. at 1391–92 (Scalia, J., dissenting); the United States Supreme Court nevertheless justified this expansion by observing the modern trend toward resolving the vast majority of criminal cases outside of the courtroom. As the court explained, “[97] percent of federal convictions and [94] percent of state convictions are the result of guilty pleas.... The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the [s]ixth [a]mendment requires in the criminal process at critical stages.” (Citations omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1407.
Plea bargaining, therefore, is a quintessential trial substitute, as it “settle[s] the accused's fate” and obviates the need for trial. United States v. Wade, supra, 388 U.S. at 224, 87 S.Ct. 1926. The same cannot be said of the failure of counsel in the present case to request that bail be raised on the two prior arrests at the petitioner's January 16, 2007 arraignment. Unlike the plea bargains in Lafler and Frye, both of which involved “pretrial events that might appropriately be considered to be parts of the trial itself”; United States v. Ash, supra, 413 U.S. at 310, 93 S.Ct. 2568; the pretrial event at issue in the present case could have no bearing on the length of the sentence imposed, and the bonds at issue related to separate charges rather than the one for which the petitioner was being arraigned. As such, it did not serve as a trial substitute for the petitioner in any regard. Cf. Missouri v. Frye, supra, 132 S.Ct. at 1407;Lafler v. Cooper, supra, 132 S.Ct. at 1388.
By focusing its critical stage analysis on arraignment, rather than the bond determinations, the majority loses sight of the guiding principle of Lafler and Frye, namely, that, with such a significant portion of cases disposed of through plea agreements, plea negotiations themselves are trial substitutes to which the sixth amendment's guarantees apply. Because this principle does not apply with respect to bond proceedings, I would adopt the conclusion of several of our sister states that a bond hearing is not a critical stage for purposes of the sixth amendment and decline to expand the sixth amendment by way of this analogy. See, e.g., Fenner v. State, supra, 381 Md. at 23, 846 A.2d 1020.
The majority interprets the foregoing discussion of Lafler and Frye as a recommendation that this court “ignore the most recent Supreme Court cases on the sixth amendment right to counsel” in deciding the present case, and further determines that my position is unsound because it is instead chiefly premised “on much older cases....” (Citation omitted.) Footnote 5 of the majority opinion. This characterization, however, misconstrues my analysis. Indeed, as my discussion of Lafler and Frye makes clear, I agree that these cases should be carefully examined for purposes of the critical stage determination in the present case, because, as the majority notes, these cases “represent the [United States] Supreme Court's most recent statement on what constitutes a ‘critical stage’ for purposes of the sixth amendment.” Id. It is not the majority's reliance on these cases to which I object but, rather, its strained application of those cases well outside the context in which they arose, namely, plea bargaining. I am persuaded that the majority's application of Lafler and Frye to justify finding a sixth amendment violation in the present case extends these cases beyond that for which they reasonably can be read.
As for the majority's puzzling objection to my reliance on “much older cases”; id.; in addition to the recent Lafler and Frye decisions, I note that the majority likewise relies on older cases in its discussion of the right to counsel, and appropriately so, as an analysis of the right to counsel likely would be incomplete without considering the Supreme Court's sixth amendment jurisprudence from Powell to the present.
Finally, I disagree with the majority regarding both the implicit premise that the petitioner was constitutionallyentitled to an increase in his bonds and the nature of the interest at stake in this case. As I noted previously, the petitioner's claim is premised on his counsel's purported failure to request that bond be increased with respect to two prior arrests after the petitioner was arrested for a third time. Such an omission, in the petitioner's view, constituted ineffective assistance of counsel because it “caused a loss of [seventy-three] days of presentence credit [to which the] petitioner would have been entitled,” resulting in a longer period of imprisonment than otherwise might have been necessary. This claim therefore implies that, but for counsel's failure to make such a request, the petitioner would have received the increase in bond that he describes. The majority, however, refers to no constitutional provision, rule of practice, or any other authority that demonstrates the petitioner's right to have his bond increased.
Returning to sixth amendment principles, “what makes a stage critical is what shows the need for counsel's presence.” Rothgery v. Gillespie County, supra, 554 U.S. at 212, 128 S.Ct. 2578. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights [that] he may have.” (Emphasis added; internal quotation marks omitted.) United States v. Cronic, supra, 466 U.S. at 654, 104 S.Ct. 2039. As Justice Samuel Alito observed in his concurrence in Rothgery, the United States Supreme Court has “held that [the term ‘defense’ in the sixth amendment] means defense at trial, not defense in relation to other objectives that may be important to the accused.” Rothgery v. Gillespie County, supra, at 216, 128 S.Ct. 2578 (Alito, J., concurring), citing United States v. Gouveia, 467 U.S. 180, 190, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); see also United States v. Ash, supra, 413 U.S. at 309, 93 S.Ct. 2568. Thus, what makes an arraignment a critical stage, for example, is its potential effect on the accused's right to a fair trial because “certain rights may be sacrificed or lost”; Coleman v. Alabama, supra, 399 U.S. at 7, 90 S.Ct. 1999; and an accused might otherwise be denied “effective representation by counsel at the only stage when legal aid and advice would help him” to vindicate constitutional rights. (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1408, quoting Massiah v. United States, 377 U.S. 201, 204, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Similarly, the expansion of the sixth amendment to cover the plea negotiation process, as discussed in Lafler and Frye, guards against the defendant's uninformed rejection of a plea offer that results in a longer sentence than otherwise would have been imposed, because, following the rejection of such an offer, the defendant may have “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him” in lieu of trial. (Internal quotation marks omitted.) Lafler v. Cooper, supra, 132 S.Ct. at 1384.
In the present context, however, the matters pertaining to bail and presentencing confinement do not result in a longer sentence being imposed, nor do they implicate a constitutional right. Although the United States Supreme Court's “jurisprudence suggests that any amount of actual jail time has [s]ixth [a]mendment significance” where the imposition of a longer sentence is concerned; Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001); the same cannot be said when, as in the present case, no dispute as to the length or the validity of the sentence imposed exists. As this court previously has explained, presentence confinement credit is a legislative grace, not a constitutional right. E.g., Hammond v. Commissioner of Correction, 259 Conn. 855, 878, 792 A.2d 774 (2002) (“credit sought ... under § [18–98d], statutorily created, is a matter of legislative grace ... and, therefore, does not give rise to a fundamental right” [citation omitted; internal quotation marks omitted] ). To reach its holding, the majority goes beyond declaring such credit to be a right; it effectively extends the full force of the sixth amendment to increases in bonds in unrelated dockets to maximize the presentence confinement credit that a defendant may obtain. Because I do not accept the premise that an accused is entitled to such an increase upon request, I disagree that counsel's failure to make such a request at the earliest possible moment could amount to constitutionally deficient representation.
The majority likewise refers to an increase in bond on earlier charges as a right of an accused who faces new charges at a later date. Our case law is clear, however, that “[t]he determination of an appropriate pretrial bond is a matter within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. McDowell, 241 Conn. 413, 415, 696 A.2d 977 (1997). Therefore, an accused is not entitled to a modification in bond simply because, in the majority's view, trial courts often accommodate requests to increase bond, a finding not in the record before us. See footnote 6 of the majority opinion.
Moreover, when an accused faces subsequent charges and is unable to post bond, our law does not mandate that judges increase bond that an accused already has satisfied simply to increase the presentence confinement credit to which the accused might become entitled. To the contrary, our rules of practice provide clear guidance for trial courts in exercising their discretion regarding appropriate bond determinations. See generally Practice Book § 38–4. Section 38–4(a), for instance, emphasizes that the key consideration is to ensure “the person's appearance in court....” To that end, § 38–4(a) supplies a number of conditions of release that range in severity from a written promise to appear to a cash bond, with direction to the judicial authority to select the first such condition of release that is “sufficient reasonably to assure the person's appearancein court....” Likewise, § 38–4(b) provides additional criteria regarding the factors that the judicial authority may “consider” in determining “what conditions of release will reasonably assure the appearance of the defendant in court....”
.Practice Book § 38–4(a) provides in relevant part: “When any defendant is presented before a judicial authority, such authority shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient reasonably to assure the person's appearance in court and, when the crimes charged or the facts and circumstances brought to the attention of the judicial authority suggest that the defendant may pose a risk to the physical safety of any person, that the safety of any person will not be endangered:
“(1) The defendant's execution of a written promise to appear without special conditions;
“(2) The defendant's execution of a written promise to appear with nonfinancial conditions;
“(3) The defendant's execution of a bond without surety in no greater amount than necessary;
“(4) The defendant's deposit with the clerk of the court of an amount of cash equal to 10 percent of the amount of the surety bond set, pursuant to Section 38–8;
“(5) The defendant's execution of a bond with surety in no greater amount than necessary;
“(6) The defendant's execution of a cash bond and his or her deposit with the clerk of the court of cash in the amount of the bond set by the judicial authority in no greater amount than necessary....”
.Practice Book § 38–4(b) provides: “The judicial authority may, in determining what conditions of release will reasonably assure the appearance of the defendant in court, consider factors (1) through (7) below, and, when the crimes charged or the facts and circumstances brought to the attention of the judicial authority suggest that the defendant may pose a risk to the physical safety of any person, the judicial authority may also consider factors (8) through (10) below:
“(1) The nature and circumstances of the offense, including the weight of the evidence against the defendant;
“(2) The defendant's record of previous convictions;
“(3) The defendant's past record of appearance in court after being admitted to bail;
“(4) The defendant's family ties;
“(5) The defendant's employment record;
“(6) The defendant's financial resources, character, and mental condition;
“(7) The defendant's community ties;
“(8) The defendant's history of violence;
“(9) Whether the defendant has previously been convicted of similar offenses while released on bond; and
“(10) The likelihood based upon the expressed intention of the defendant that he or she will commit another crime while released.”
In light of this framework, the majority's conclusion that an attorney's failure to request an increase in bail amounts to a constitutionally deficient level of representation inappropriately extends the reach of the sixth amendment. Defendants have neither a right to nor an expectation of an increase in bond to secure credit for presentence confinement, and not even a tortured reading of the sixth amendment could justify the conclusion that the petitioner's rights were violated because he was not incarcerated on the charges pending against him. Even if the petitioner's attorney in the present case immediately had requested an increase in the bonds pertaining to the petitioner's other charges during the petitioner's arraignment for his third arrest, the trial judge would have been under no obligation to grant such an increase for the reasons that I noted previously; indeed, doing so would in effect deviate from the framework set forth in the rules of practice because it would not further the policy of ensuring the petitioner's eventual presence in court. See Practice Book § 38–4.
I emphasize that an increase in bail is not necessarily contemplated under either General Statutes § 18–98d or Practice Book § 38–4.
Because I would answer the first certified question in the negative, I need not reach the second certified question, namely, did the purported violation meet the standard for ineffective assistance of counsel under Strickland v. Washington, supra, 466 U.S. at 668, 104 S.Ct. 2052. See Gonzalez v. Commissioner of Correction, 298 Conn. 918, 919, 4 A.3d 1226 (2010). Even if I were to accept the majority's position that the petitioner's sixth amendmentright to counsel was violated in the present case, however, I nevertheless would reject the petitioner's claim of ineffective assistance of counsel under Strickland because there is no evidence that demonstrates that the petitioner actually spent any additional time in custody. The petitioner simply assumes that neither the court, in sentencing him, nor the parties, in negotiating his plea agreement, considered the seventy-three days of confinement for which he now seeks credit. In view of the wide discretion afforded a sentencing judge when imposing an appropriate sentence; see State v. Eric M., 271 Conn. 641, 649, 858 A.2d 767 (2004); and the complete dearth of evidence that the trial court did not consider the seventy-three days of incarceration at sentencing, I would conclude that the petitioner failed to meet his burden of establishing prejudice under Strickland. Although the majority does reach the second certified question, it fails to address this observation.
This court certified the following question for appeal: “[Did] the Appellate Court properly [rule] that the sixth amendment confers a right to the effective assistance of counsel in matters pertaining to credit for presentence confinement?” Gonzalez v. Commissioner of Correction, 298 Conn. 918, 919, 4 A.3d 1226 (2010).
Because the petitioner was not entitled to an increase in bail, I cannot agree that the failure of his counsel to request such an increase for the sole purpose of maximizing the presentence confinement credit to which the petitioner might be entitled could constitute deficient representation at a critical stage of the prosecution or could warrant the granting of a writ of habeas corpus. I cannot agree with the majority's determination that an arraignment in a third criminal case serves as a critical stage in the two prior, unrelated cases. In my view, the majority's decision constitutes an unprecedented expansion of the sixth amendment right to counsel, one that I do not believe is supported by the text of the sixth amendment or the related jurisprudence of the United States Supreme Court.
Accordingly, I respectfully dissent.