Opinion
No. TSR CV06 400918-S.
December 14, 2006.
MEMORANDUM OF DECISION
Petitioner, Scott Palmenta, alleges in his petition for a writ of habeas corpus, amended on September 14, 2006, that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and Article I, § 8, of the Connecticut constitution. Specifically petitioner alleges that counsel failed to make an adequate record at sentencing that reflected the terms of the plea agreement and intent of the parties, as well as failed to request that the mittimus reflect 147 days of presentence confinement credit. Petitioner also claims that his constitutional right to due process was violated because he was deprived the benefit of his plea agreement with the state. In the return respondent denies petitioner's claims and raises the affirmative defenses of procedural default and res judicata. Petitioner denies any default and asserts that he followed procedural rules by filing a motion to correct his sentence pursuant to Practice Book § 43-22.
As to the defense of res judicata, petitioner asserts that although he filed a motion to correct his sentence on August 14, 2006, there was no hearing on the merits of that motion. The application of res judicata in habeas matters is limited to claims that "actually have been raised and litigated in an earlier proceeding." (Emphasis added.) Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 45-46 (2004). Because petitioner's claim was not actually litigated, res judicata does not apply in this case.
Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."
The matter came before the court on October 30, 2006, for a trial on the merits. Witnesses included Attorney Fred B. Devine, Jr., Attorney Thomas Farver, Attorney Magdalena Valentin-Campos and Records Specialist Michelle DeVeau. The court finds Devine to be credible in part and not credible in part and Farver, Valentin-Campos and DeVeau to be highly credible. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the superior court, geographical area #18 in Bantam (the Bantam case). In that matter, on or about September 27, 2004, petitioner was arrested for burglary in the third degree and larceny in the third degree. Petitioner was thereafter arraigned on these charges and held in lieu of posting an appearance bond.
This matter is known as docket number CR04-0115540-S.
On or about December 28, 2004, petitioner was arrested for additional offenses which were committed in that portion of Connecticut covered by geographical area #4. Thereafter petitioner was arraigned on these charges and held in lieu of bond (the Waterbury case). On January 13, 2005, petitioner pleaded guilty to larceny in the third degree in the Waterbury case. Accordingly on March 29, 2005, he was committed to the custody of the commissioner of corrections for a period of eighteen months. Attorney Mark Solak represented petitioner in the Waterbury matter.
This matter is known as docket number CR04-0337126-S.
In early 2005, Fred B. Devine, Jr. began his representation of petitioner in the Bantam case. Prior to Devine's appearance in the Bantam case, petitioner had been represented, at various times, by a public defender and Solak. Until August 2005, the state of Connecticut was represented in the Bantam case by supervisory assistant state's attorney Andrew Wittstein and thereafter by assistant state's attorney Magdalena Valentin-Campos.
Wittstein's initial offer to settle the Bantam case was a plea to one count each of burglary in the third degree and larceny in the third degree and an agreed upon sentence of five years to serve and five years of special parole. By August 2005, Wittstein had modified the state's offer to an agreed-upon sentence of forty-two months to serve and thirty months of special parole. Petitioner declined to accept either of these offers.
Wittstein's offer was based on petitioner's lengthy prior criminal history combined with the fact that he had committed the Bantam offenses while on supervised parole.
On August 23, 2005, the Bantam matter was called for trial at the judicial district of Litchfield ourthouse. Prior to the commencement of jury selection, Devine met with petitioner for approximately twenty minutes in the courthouse lockup. Devine indicated to petitioner that although Devine believed the state had a weak case, if petitioner received an offer from the state which would result in minimal additional incarceration, petitioner would be foolish not to accept such an offer. Thereafter Devine and Valentin-Campos were ordered to report to the Hon. Charles Gill for a judicial pretrial settlement conference.
Geographical area #18 is located in the judicial district of Litchfield.
During the pretrial conference, Devine indicated that the state did not have a strong case and that petitioner wanted a trial. In response, Valentin-Campos advised Judge Gill of the facts underlying the state's case and of the pretrial offer of forty-two months to serve and thirty months of special parole. After hearing from both attorneys, Judge Gill indicated that if petitioner pleaded guilty, he would impose a sentence of forty-two months to serve and no special parole. Devine informed Judge Gill that he would relay the court's offer to petitioner, but he would not recommend petitioner accept it.
After discussing the court's offer with petitioner, Devine reported that petitioner had rejected the offer. Thereafter, for the first time, Devine mentioned that petitioner had seven months of pretrial confinement in the Bantam case, that he was presently serving a sentence of eighteen months as a result of the Waterbury case, and that, in Devine's opinion, petitioner should get some consideration for his Bantam pretrial time. After hearing this, Judge Gill modified his court indicated offer to eighteen months to serve concurrent to petitioner's Waterbury sentence.
Devine testified that he calculated the seven months as the period from the date of petitioner's arrest in Bantam in September 2004 until the date of his sentencing in Waterbury in March 2005.
Devine brought Judge Gill's revised offer to petitioner who thereafter decided to accept it. Immediately thereafter, petitioner pleaded guilty to one count of burglary in the third degree. The plea was canvassed by the trial court and in accordance with his agreement with the court, petitioner was committed to the custody of the commissioner of corrections for eighteen months. Thereafter based on the mittimus issued by the clerk's office and in accordance with the applicable statutes, the department of corrections determined that petitioner's discharge date on the Bantam case was February 23, 2007, some five months after his discharge on the Waterbury case.
The plea agreement to which petitioner pleaded guilty was an agreement between him and the court. The state was not a party to this agreement as at sentencing, it requested that the court impose a sentence of forty-two months. Petitioner's counsel conceded as much in closing argument. Thus any claim by petitioner that the state failed to fulfill its part of the plea agreement is not well founded.
Petitioner does not dispute the accuracy of the sentence as set out in the mittimus issued by the court in the Bantam case. Rather petitioner claims that in derogation of the plea agreement or in the alternative, due to ineffective assistance of counsel, he was not credited with 147 days.
At the habeas trial, Devine testified that on August 23, 2005, he believed that a sentence of eighteen months on the Bantam case concurrent to the Waterbury sentence would result in petitioner's discharge from incarceration on or before October 1, 2006. Devine further testified that Judge Gill also "understood" that petitioner's Bantam discharge date would not exceed petitioner's Waterbury discharge date. Additionally Devine testified that during their discussion of Judge Gill's offer, petitioner never asked what effect a concurrent sentence of eighteen months would have on his present sentence.
Petitioner's discharge date on the Waterbury sentence was September 29, 2006.
At the habeas trial, petitioner presented the testimony of Thomas Farver who testified as an expert witness in the area of criminal defense law. Farver is an attorney who was admitted to practice in the state courts of Connecticut in 1980. Farver has practiced criminal law in Connecticut for twenty-six years and at present, sixty percent of his practice consists of criminal cases. He has previously testified as an expert witness in habeas cases for both petitioners and the respondent.
Farver testified that in his opinion, a constitutionally competent criminal defense attorney should know the general principles of sentence calculation which includes the fact that if a client is presently serving a sentence, he will receive no pretrial credit for any pending case. Thus in order to render effective assistance, a competent attorney should know (1) whether his client is presently serving a sentence; (2) whether he has cases pending in multiple jurisdictions; and (3) approximately how much time a client must serve on any offered sentence. Additionally in the case of multiple jurisdictions, the competent defense attorney should contact other defense counsel to ensure coordination of sentences.
Farver further testified that if a client was presently serving a sentence and was also held in lieu of bond on a pending case, at the time of any pretrial hearing on the pending case, an effective attorney would request either that pretrial credit for the pending case be awarded to any proposed sentence or that a downward adjustment be made in the offered sentence. Additionally if either the prosecutor or the judge agreed to award pretrial credit, a competent attorney would put that fact on the record in court and ensure that the mittimus noted the same. Farver additionally testified that employees of the department of corrections are available to consult with defense counsel on sentence calculation issues and that he has, at times, employed their services. DeVeau corroborated this latter testimony.
DeVeau is employed as a Records Specialist II for the department. Her duties include giving technical advice to attorneys regarding the calculation of an inmate's sentence.
On September 27, 2004, petitioner was a sentenced prisoner who was released into the community on supervised parole. On that same date, he was arrested for the Bantam case. On or about the same date, as a result of the Bantam arrest the department remanded petitioner from parole to custody and required him to serve the remaining ninety days of a previous sentence. Therefore, although as of September 27, 2004, petitioner was being held in lieu of bond in the Bantam case, petitioner could not earn any pretrial credit on the Bantam case until, at the earliest, the expiration of his parole sentence in late December 2004.
On December 28, 2004, however, petitioner was arrested and held in lieu of bond on the Waterbury case. Thus starting in late December 2004 through March 29, 2005, petitioner was held in lieu of posting bond on both the Bantam and the Waterbury cases. Petitioner was, therefore, earning unallocated pretrial credit. At the time that he was sentenced in Waterbury, this unallocated credit was posted by the department to the Waterbury case. Thus once petitioner was sentenced on the Waterbury case, he lost all post December, 2004 pre trial credit on the Bantam case. Further, so long as petitioner continued to serve the Waterbury sentence, he could not accrue credit on the Bantam case. Thus on August 23, 2005, when petitioner appeared in Litchfield for trial, he had no accrued pre trial credit in the Bantam case.
The date of the commencement of his Waterbury sentence.
Additional facts will be discussed as necessary.
DISCUSSION OF LAW I. Ineffective Assistance of Counsel
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do this the petitioner must prove, by a preponderance of the evidence, both deficient performance and actual prejudice. Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721 (2002).
The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1994). "In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court 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." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, cert. denied, 273 Conn. 936 (2005). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, cert. denied, 275 Conn. 930 (2005).
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical states of criminal proceedings . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." (Citations omitted.) Copas v. Commissioner of Correction, supra, 234 Conn. 153.
The second part of the Strickland test, known as the prejudice prong, was modified by the United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), to assess claims of ineffective assistance of counsel arising from a guilty plea. Copas v. Commissioner of Correction, supra, 234 Conn. 151. Under the modified prejudice standard, "the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 706 (2004). The petitioner must also establish that the "decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, supra, 88 Conn.App. 152.
Petitioner claims that trial counsel failed to recognize the impact of the Bantam sentence on his discharge date, thereby allowing him to be sentenced to 147 days in excess of what he agreed to as part of the plea bargain. According to petitioner, at the plea hearing, Devine failed to make an adequate record of the plea agreement and intent of the parties, as well as failed to request the mittimus reflect that 147 days of presentence confinement credit be applied to the Bantam sentence. Petitioner further claims that but for Devine's deficient representation, the outcome of the trial proceedings would have been different in that the Bantam sentence would likely have been credited with the 147 days petitioner spent in presentence confinement from March 29, 2005 to August 23, 2005 and the discharge date on the Bantam sentence would have been on or before the discharge date on petitioner's Waterbury sentence.
At the close of the evidence in the habeas trial, petitioner moved to amend the petition to conform with the evidence adduced at trial. More specifically petitioner requested that ¶¶ 6, 7, 10, 14 and 16 of count one and ¶¶ 6 and 10-13 of count two be amended to reflect petitioner's claim that he was denied 183 days of pre trial credit for the period September 27, 2004 — March 29, 2005. The court denied this motion. Even if the court had allowed this amendment, the court's decision to deny the petition would remain unchanged.
Based on the evidence adduced at the habeas trial, the court finds that the parties to the plea agreement in petitioner's criminal case were Judge Gill and petitioner. At no time was the state a party to any plea agreement with petitioner. On August 23, 2005, Judge Gill's offer was as follows: in exchange for a plea of guilty by petitioner to one count of burglary in the third degree, the court would impose a sentence of eighteen months to serve concurrent to petitioner's Waterbury sentence. It is undisputed that petitioner accepted this offer.
As evidence of this during the plea proceeding, the prosecutor stated "[t]he state . . . had offered [petitioner] . . . three and a half years concurrent with two and a half years special parole [at] a judicial pretrial with Your Honor today. The Court has indicated [a] sentence of eighteen months to serve concurrent to his present sentence. He's serving a sentence out of Waterbury." (Emphasis added). Plea/Sentencing Transcript, August 23, 2005, p. 4-5.
Petitioner, however, claims that in entering into this agreement, he and Judge Gill additionally intended petitioner's Bantam discharge date not exceed his Waterbury discharge date. At the habeas trial Devine testified that in extending his offer, Judge Gill "understood" that the discharge date for petitioner's Bantam sentence would not exceed petitioner's Waterbury discharge date. The record at the trial court, however, does not support Devine's claim as to Judge Gill's understanding. During the plea canvass, Judge Gill specifically asked petitioner whether anyone had made any promises to him, other than the recommended sentence of eighteen months concurrent to his Waterbury sentence. To this inquiry, petitioner responded no.
Plea/Sentencing Transcript, August 23, 2005, p. 5-7.
Moreover, aside from Devine's testimony, there was no evidence presented in the habeas court that Judge Gill ever understood, indicated or implied that his offer was structured so that petitioner's Bantam sentence would end on or before petitioner's Waterbury sentence. To the extent that Devine and petitioner now claim that Judge Gill intended that the court's offer would result in a discharge at the same time as his Waterbury sentence or that Judge Gill intended that petitioner's Bantam sentence not exceed his Waterbury sentence, this court finds those claims not supported by the credible evidence in this case. The court finds that the transcript of the plea proceedings accurately sets out the entire agreement between petitioner and Judge Gill. Thus it cannot be said that Devine failed to make an adequate record of the plea agreement or the parties' intent.
The court also credits Valentin-Campos's testimony that Judge Gill never indicated he would award petitioner any presentence credit, but that if Judge Gill had made such a promise, Valentin-Campos would have ensured that the record reflected this.
Next petitioner claims that Devine's performance was deficient in that he failed to request petitioner be awarded 147 days of presentence credit. During the judicial pretrial Devine asked Judge Gill to give petitioner "some consideration" for the fact that he was serving an eighteen-month sentence from Waterbury and that he was serving "dead time" on the Bantam case. Both Devine and Valentin-Campos testified that when Judge Gill heard that petitioner was not earning credit on the Bantam sentence, he modified the court's offer to eighteen months to serve concurrent to petitioner's Waterbury sentence.
According to petitioner's expert, Thomas Farver, when representing at a pretrial on a pending case, a client who is presently serving a sentence, the effective attorney requests that the court either award pretrial credit for "dead time" on the pending case or requests a downward adjustment in the offered sentence. Devine chose the latter approach and was successful in getting Judge Gill to reduce his offer from forty-two months to eighteen months. Farver did not, however, testify that in order to provide effective representation, an attorney, having successfully argued for a downward departure in the offer, must also at sentencing request the court grant pretrial credit. Rather Farver couched his opinion in the disjunctive. Specifically Farver stated that the effective attorney requests either pretrial credit for the pending case be awarded to any sentence or a downward adjustment in the offered sentence. Farver's testimony therefore does not support petitioner's claim that Devine was ineffective in failing to request the award of presentence credit in the Bantam case. Thus Devine's failure to ask for the award of 147 days credit did not constitute deficient performance.
Devine's performance became deficient, however, when he incorrectly advised petitioner that acceptance of Judge Gill's offer would result in the service of no additional incarceration. "In order for a plea of guilty to be constitutionally valid, it must be equally voluntary and knowing . . . it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts . . . An understanding of the law in relation to the facts must include all relevant information concerning the sentence. The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty . . ." (Citations omitted; internal quotation marks omitted.) State v. Collins, 207 Conn. 590, 598 (1988). Petitioner's claim that counsel gave erroneous advice concerning the length of his incarceration raises the question whether petitioner's guilty plea is, in fact, valid. See id.
At the habeas trial Devine testified that by virtue of petitioner's status as a sentenced prisoner, Devine believed that petitioner would not be entitled to seven months of presentence credit in his Bantam case. Devine further testified that nevertheless he believed that Judge Gill's offer would not entail any additional jail service over and above the Waterbury sentence. Devine also testified that he never communicated these beliefs to petitioner and petitioner never asked what effect a sentence of eighteen months would have on his present sentence.
The court finds not credible Devine's disavowal of any discussion with petitioner as to the effect of the Bantam sentence on his release date. The trial transcript reveals that during the plea canvass, Devine represented to the court ". . . I've had an opportunity to extensively discuss what the impact of this sentence . . . would have on the rest of his sentence that he is currently serving, and he is satisfied that he has an understanding and adequate appreciation for them." Although petitioner did not testify in this case, it strains credulity for this court to believe that Devine never advised petitioner as to the effect of the offered sentence. While this court believes that Devine had such a discussion with petitioner, there is no evidence that this discussion ever included anything other than Devine's belief that petitioner would not serve any additional time. Thus this court does not credit petitioner's unproven claim that Devine advised petitioner that he would be awarded 147 days of credit.
Plea/Sentencing Transcript, August 23, 2005, p. 10.
While Devine believed that an eighteen-month concurrent sentence in the Bantam case would result in the same discharge date as the Waterbury case, his belief and his advice to petitioner were erroneous and, therefore, to petitioner's detriment. This court finds, therefore, that Devine's representation fell below an objective standard of reasonableness; accordingly, petitioner has met his burden of proof for the first part of the Strickland test.
Petitioner has failed, however, to satisfy the second prong of the Strickland test. Here, the petitioner does not seek to vacate his guilty plea. Petitioner asserts that, had counsel provided adequate representation, he would have been credited with the 147 days of presentence confinement credit. He seeks as relief, accordingly, the appropriate crediting of the time spent in presentence confinement for the Bantam case. This court does not agree that if at sentencing Devine had requested the award of 147 days of credit, such request would have been successful.
General Statute § 18-98d precludes a sentenced prisoner from earning pretrial credit for any case in which he is being held in lieu of bond. Further notwithstanding this statutory prohibition, prior to filing this habeas petition, petitioner presented this exact request to Judge Gill who denied the relief requested. More specifically on August 14, 2006, petitioner filed with the trial court a motion for a revised mittimus. In his motion petitioner alleged that at the time he entered his plea, he "believed that the [petitioner's] sentence in the Bantam case would include credit for the period of March 28, 2005-August 23, 2005" and he requested that the court award him 147 days of presentence credit. This motion was denied by Judge Gill on October 3, 2006. Petitioner therefore has failed to prove that if Devine had requested the court award pretrial credit of 147 days, the request would have been granted.
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 persons presentence confinement . . .
(2)(A) Any person convicted of any offense and sentenced on or after October 1, 2001, to a term of imprisonment who was confined to a police station or courthouse lockup in connection with such offense because such person was unable to obtain bail or was denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence in accordance with subdivision (1) of this subsection equal to the number of days which such person spent in such lockup, provided such person at the time of sentencing requests credit for such presentence confinement. Upon such request, the court shall indicate on the judgment mittimus the number of days such person spent in such presentence confinement.
Additionally petitioner has failed to prove that any other prejudice enured to him as a result of Devine's incorrect advice. Notably petitioner has failed to offer any evidence that he would have taken his case to trial if he knew that he would not receive credit for the 147 days of presentence confinement in the Bantam case. Moreover based on the strength of the state's case, petitioner would not have been successful had he gone to trial.
Devine testified that on May 11, 2005, petitioner sent him a letter indicating petitioner was not willing to "take additional time on the Bantam case." This letter was not introduced into evidence. Even if this letter could be construed to be some indication petitioner intended to try his case, this court is not prepared to conclude that petitioner's position on May 11, 2005 accurately reflected his position three and one-half months later.
At the habeas trial, Devine asserted that he and his client believed the state did not have a strong case against petitioner because petitioner's companion, and not petitioner, was found in possession of the items stolen in the burglary. This court does not agree with Devine's assessment.
A reasonable construction of the state's case indicates that on the date and time of the burglary resulting in the Bantam charges, an unfamiliar motor vehicle was observed by neighbors to be parked in the complainant-victim's driveway. Believing the car to be suspicious, one of the neighbors approached the vehicle to see if anyone was inside. The car, however, contained no passengers. Petitioner was then observed by the neighbor to be coming from the direction of the complainant's residence. Petitioner volunteered to the neighbor that he was looking for a dog that had jumped out of his car window. Petitioner then got into the vehicle and drove from the scene.
The neighbor, however, had obtained the registration number of petitioner's vehicle and reported the incident to the State Police. After running the registration, State Police determined that the car was registered to an Amy Switzer, petitioner's girlfriend. State Police called the Switzer house in Ridgefield and were informed by Switzer's mother that Amy was residing in a halfway house in Southbury.
Troopers then went to that location and while speaking to a staff member of the house, petitioner and Switzer drove up in Switzer's vehicle. The troopers asked petitioner and Switzer to go with them to Troop A for questioning which they consented to do. Prior to leaving for Troop A, Switzer went into the residence and left her purse on the kitchen table. While Switzer and petitioner were at Troop A, a staff member of the home called State Police to report that the purse had fallen over and a plastic bag containing jewelry had spilled out. Thereafter the complainant-victim came to Troop A and identified the jewelry as having been stolen from her home. In the court's opinion, on these facts, a reasonable jury would have found petitioner guilty of, at a minimum, accessory to burglary in the third degree and conspiracy to commit burglary in the third degree. Petitioner conceded as much in response to the court's questioning during the plea canvass.
General Statutes § 53a-103.
General Statutes §§ 53a-48 and 53a-103.
"THE COURT: Okay. Now you've pled guilty under the Alford doctrine. This doctrine essentially says that . . . you don't admit . . . all of the evidence that the State claims it has . . . but you feel there is sufficient evidence that the State has that you could be convicted and you don't want to run that risk . . . Is that essentially what you are doing? [PETITIONER]: Yes." (Emphasis added). Plea/Sentencing Transcript, August 23, 2005, p. 7.
Based on the foregoing, petitioner has failed to introduce sufficient evidence to convince this court that he was prejudiced by the deficiencies in trial counsel's representation. His ineffective assistance of counsel claim, therefore, fails on the second part of the Strickland test.
II. Due Process
Petitioner finally claims that his right to due process was violated because he was deprived the benefit of his plea bargain with the state. In other words, petitioner alleges that in violation of his plea bargain with the state, he is serving 147 days in excess of the eighteen-month sentence agreed to in the Bantam case. As with the ineffective assistance claim, petitioner seeks credit for the 147 days spent in presentence confinement, representing the time period of March 23, 2005, through August 23, 2005.
To this claim respondent raises the affirmative defense of procedural default. It is well settled that a petitioner may not raise a constitutional claim for the first time in a habeas petition that could have been addressed before sentencing or on direct appeal. Gray v. Commissioner of Correction, 84 Conn.App. 515, 518, 854 A.2d 45, cert. denied, 271 Conn. 930, 859 A.2d 584 (2004). The purpose behind this axiom is clear. Procedural rules serve important purposes at trial and on direct appeal. Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993). Such rules allow for the efficient resolution of issues, to ensure that the necessary evidence and potential witnesses are available for a new trial proceeding or appeal. See id. This "promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case." Id., quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Citations omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). If the petitioner fails in this burden of proof, the habeas court will not reach the merits of the claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
Respondent asserts that the court should not reach the merits of petitioner's claim because he failed to plead facts in support of the cause for his procedural default and the prejudice resulting therefrom. Petitioner, however, denies that he has defaulted and asserts that he filed a motion pursuant to Practice Book § 43-22 to correct his sentence, which was denied by the court (Gill, J.). Although petitioner did file a motion to correct his sentence, he never appealed the denial of that motion. Thus, petitioner declined to take advantage of a procedural mechanism that might have provided the remedy he now seeks through this habeas action. He has provided no cause for this procedural default. This court therefore finds that the petitioner has procedurally defaulted on this claim.
See State v. Dixson, supra, 93 Conn.App. 176-181 (denial of motion to correct sentence affirmed where defendant argued he did not receive the benefit of the plea bargain).
Notwithstanding the procedural default, the petitioner cannot prevail on the merits of his claim. "If the state makes promises to the defendant in order to induce a guilty plea, those promises must be fulfilled; Santobello v. New York, [ 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)] and the breaking of a promise made by the prosecutor as a result of plea negotiations is sufficient to invalidate a conviction." (Citation omitted; internal quotation marks omitted.) State v. Nelson, 23 Conn.App. 215, 219, cert. denied, 216 Conn. 826 (1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991). "Where . . . there is a dispute as to the terms of a plea agreement, [the] analysis turns on the real intent of the parties, and most significantly, of [the defendant] . . ." (Internal quotation marks omitted.) Id.
In the present case, petitioner does not seek to invalidate his conviction, but instead seeks specific performance of a provision of his plea agreement. In petitioner's criminal case, there existed no plea agreement between himself and the prosecution. The plea agreement entered into by petitioner was an agreement solely between himself and the court. Even assuming the Santobello/Nelson principles apply to a plea agreement between a defendant and the trial court, this court's conclusions in the first part of this opinion, preclude petitioner's claim that he failed to receive the benefit of his agreement.
Presentence credit for 147 days was never part of the explicit terms of the agreement between petitioner and Judge Gill. As evidence of this, during the plea canvass petitioner averred that other than a sentence of eighteen months concurrent to his Waterbury sentence, no promises had been made to him in order to induce his plea. Although Devine mentioned at the plea hearing that the Bantam sentence would have an impact on petitioner's total length of incarceration, he neither stated that the plea bargain included any presentence confinement credit nor requested that any credit be reflected in the judgment mittimus. Additionally, as noted in the first part of this opinion, there is no credible evidence that Judge Gill intended petitioner's Bantam and Waterbury sentences be coterminous or that petitioner receive 147 days of presentence credit. The credible evidence shows that what petitioner bargained for is precisely what he got, eighteen months, to run concurrent to the Waterbury sentence. There is therefore no merit to the petitioner's due process claim.
Plea/Sentencing Transcript, August 23, 2005, p. 5-7.
Plea/Sentencing Transcript, August 23, 2005, p. 10.
See fn. 16, supra.
Accordingly, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days. CT Page 22356
CT Page 22357