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Zabian v. Comm. of Correction

Connecticut Superior Court Judicial District of Tolland at Somers
May 14, 2007
2007 Ct. Sup. 6749 (Conn. Super. Ct. 2007)


No. CV06-4000948

May 14, 2007

Memorandum of Decision

The petitioner, Omar Zabian, inmate #308897, alleges in his petition for a Writ of Habeas Corpus initially filed on January 30, 2006 and amended for the final time on December 15, 2006, that he is not receiving the full benefit of the plea agreement into which he entered in 2004. Consequently, he asks this court under authority of Santobello v. New York, 404 U.S. 257 (1971), to order specific performance of that agreement.

The court notes that this petition does not contain an allegation of ineffective assistance of counsel, nor does it seek to allow the petitioner to withdraw his pleas of guilty and have the matter restored to the criminal docket.

This habeas petition came on for trial before the Court on April 4th, and 9th, 2007. The Court received testimony from the petitioner; Ms. Sylvia Bell, a Records Specialist with the state Department of Correction; the petitioner's trial defense counsel, Atty. Raipher Pellegrino; and the trial prosecutor, Sr. Asst. State Attorney Vicky Melchiorre. In addition, the Court received the plea and sentencing transcripts as well as numerous other pieces of documentary evidence. The Court notes that the trial judge who took the plea and pronounced the sentence in this case did not testify, nor did either party attempt to introduce any sort of affidavit from him.

A fact finder, whether it be the judge in a bench trial or the jury, is limited to using only the evidence lawfully placed before it. It is improper in resolving issues of fact to consider matters that are outside the record of trial, engage in speculation, or supposition. While "truth" should be a concrete concept, when deciding what facts are true for the purposes of resolving a petition, the Court is limited to considering only the properly admitted evidence before it in finding that truth. Consequently, it must be reiterated that the following findings of fact are derived from the evidence adduced at the habeas trial.

Findings of Fact

1. The petitioner was a defendant in twenty separate criminal cases proceeding in the Judicial District of Hartford.

2. The first cases for which the petitioner was arrested on February 25, 2003 were Docket Nos. CR03-568575 and CR03-568576.

3. The petitioner failed to post bond on these two dockets and was held in custody by the Respondent. He has remained in continuous custody since then.

4. Between February 25, 2003 and May 13, 2003, the petitioner was arrested, arraigned and held in lieu of bond on the remaining eighteen criminal dockets.

5. On May 17, 2004, the petitioner pled guilty under each of these dockets pursuant to a plea agreement.

6. On August 4, 2004, the petitioner was sentenced to a total effective sentence of sixteen years confinement, suspended after the service of eight years, to be followed by five years probation.

7. The petitioner did receive varying amounts of jail credit for the time he spent in pretrial confinement ranging from a minimum of 448 days credited to Docket No. CR03-0209071 to a maximum of 526 days credited to Docket Nos. CR03-568575 and CR03-568576.

8. The petitioner's release date on the to-be-served portion of his sentence is May 13, 2011.

9. Additional facts will be discussed, as necessary, in subsequent portions of this decision.


The petitioner now comes before this Court seeking to have this court order specific performance of the "contract" between him and the state. It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case is now in the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.

This may seem to be difficult for a layman to accept, given the oft-repeated phrase that "one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine if there have been any errors of law that were made by the trial court. Given that a habeas petition is often called the "court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.

At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though our courts have recognized that "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving entitlement to the grant of a writ rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422.

The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95." Fay v. Noia, infra. at 400 (1963).

Edward I reigned in England in the late 13th century AD.

Issuance of a writ of habeas corpus is a remedy whose "most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995). Moreover, when a court reviews a petition for habeas corpus, "it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730 (1991). So, the writ of habeas corpus "has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314 (1996).

A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. "This does not mean, of course, that a criminal defendant has an absolute right to have his guilty plea accepted by the court." Lynch v. Overholser, 369 U.S. 705, 719 (1962).

"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure or persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called `plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello, infra at 260. When criminal cases are resolved by plea agreement, it is axiomatic that each party must be required to perform the actions to which agreement was made. "It is well-established that the interpretation of plea agreements is rooted in contract law, and that each party should receive the benefit of its bargain." United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994). This is so because by entering into a plea agreement, a defendant gives up a number of critically important constitutional rights. "However important plea bargaining may be in the administration of criminal justice, . . . [U.S. Supreme Court] opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, to confront one's accusers, Pointer v. Texas, 380 U.S. 400, to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, to remain silent, Malloy v. Hogan, 378 U.S. 1, and to be convicted by proof beyond all reasonable doubt, In re Winship, 397 U.S. 358." Santobello at 264.

Moreover, here in Connecticut it is clear that "[p]retrial 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 expeditions and fair administration of our courts . . . Plea bargaining leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned." Copas v. Commissioner of Correction, 234 Conn. 139, 153-54 (1995).

Notwithstanding, the instant case brings up a number of interesting issues that deserve detailed examination. The first of which involves the resolution of a Motion to Dismiss filed by the Respondent in court on the first day of the trial on the merits. In essence, the Respondent asks this Court to dismiss the petition on the grounds of collateral estoppel and res judicata. In support of her motion, the Respondent alleges that the petitioner filed a Motion to Correct an Illegal Sentence with the trial court and that said motion was thereafter summarily denied. The Respondent now claims that this renders the matter res judicata since the petitioner is asking this habeas court to do the very same thing. So, the first question before this Court is whether this petition amounts to a challenge of an illegal sentence. If so, then the Respondent may be right.

A. Is this Habeas Petition Alleging Illegal Sentence?

At the outset, it must be noted that the petitioner is not asking that his actual sentence of sixteen years suspended after the service of eight years be modified. Instead, it is the assertion of the petitioner that he is entitled to have jail credit computed on all of his dockets from February 25, 2003, the date upon which he first entered the custody of the Respondent. The petitioner claims that it was a term of the pretrial agreement that he be given the entire 526 days of pretrial jail credit on all of his files. The petitioner believes that he is entitled to have a maximum release date, therefore, of February 24, 2011. The sticking point in this case is the contested 78 days of jail credit that the petitioner believes is due him and the Respondent does not. The petitioner is not, therefore raising any sort of a direct challenge to the actual sentence that the criminal trial court imposed.

On its face the sentence at issue is clearly not an illegal sentence. "An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). So, at first blush, given that the sentence in the instant case does not meet a single one of these criteria, there would appear to be no illegality in the sentence. However, the Respondent further cites to State v. Lawrence, 91 Conn.App. 765, 773, affirmed 281 Conn. 147 (2007) as standing for the proposition that a sentence can still be illegal if it "was imposed in a way which violates defendant's right . . . that the government keep its plea agreement promises." Even so, there would appear to be nothing in the sentence that was actually imposed the trial court that could be seen as preventing the government from keeping its pretrial agreement. There is, to be sure, a dispute over the jail credit to be allowed, but this does not affect the legality of the sentences that were handed down by the trial court. "It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence . . . Under the common law, the court has continuing jurisdiction to correct an illegal sentence. See, e.g., Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947)." State v. Lawrence, supra at 770-72. Since there was and is no illegality about the sentence, the trial court quite appropriately, then, declined to grant relief as it was without jurisdiction so to do.

The petitioner was then free to pursue his claim of a violation of the plea agreement in accordance with Santobello v. New York, 404 U.S. 257 (1971). This Court will therefore, expressly find that neither the doctrine of collateral estoppel nor res judicata apply in the instant petition. Further, given that the challenge in this case does not amount to a claim of an illegal sentence, the petitioner can not be procedurally defaulted for having failed to take an appeal of the trial court's denial of his motion to revise the sentence. Consequently the Respondent's belatedly filed Motion to Dismiss shall be denied.

B. What was the Plea Agreement?

The second interesting issue involves the exact nature of the plea agreement in this case. At the habeas trial the petitioner testified that it was his belief that it was a term of the pretrial agreement that he was to receive pretrial jail credit for all of his files retroactive until the date he first entered confinement, that is, February 25, 2003. Moreover, the petitioner's trial defense counsel testified that he also had that belief. This belief on the part of the petitioner and his counsel is further corroborated by the filing of the motions to revise the sentence seeking exactly that relief from the criminal trial court judge. However, at the habeas trial, the trial prosecutor testified that she did not make such an agreement, felt that the trial judge's agreement was too lenient to begin with, and would never have agreed to "knock" an additional 78 days off what she believed to be an already too lenient sentence. It is clear that given the testimony at the habeas trial, there was no express or explicit agreement between the state and the defendant for the jail credit to be awarded to all of the files.

It is not altogether clear that this is a correct belief. There is an exchange in the record of the petitioner's sentencing in which Atty. Pellegrino does expressly ask the trial judge for credit from 2/25/03. The prosecutor, having been given an opportunity to object, does not raise an objection and the trial judge then goes on to state that "to the extent that he's doing pretrial time on these files only, then he's entitled to that credit. If there's any problem with it, Attorney Pellegrino, let me know." See Petitioner's Exhibit 30, at p. 96, lines 20-23. The trial judge's response is capable of differing interpretation and given the decision of the parties at the habeas trial not to introduce the testimony of the trial court judge, this Court can only speculate as to what was the true meaning of the trial judge's words. Nevertheless, it is clear that both the petitioner and Atty. Pellegrino believed the plea agreement contained an agreement for retroactive credit on all files and given this exchange, it was a reasonable, albeit possibly mistaken, belief on their part.

Given this testimony, there are three possible alternatives. One: either the "agreement" is between the petitioner and the criminal trial court judge to which the state was not a party. Two: although the agreement appeared to be ostensibly between the court and the defendant, the state became bound by the agreement though its silence and acquiescence in the plea. Three: there never was a meeting of the minds in the first place such that there is no plea agreement.

The resolution of criminal cases by plea bargain is critical to the smooth functioning of the American criminal justice system. "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of [the] criminal justice system." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). However, what is the role of the trial judge in pretrial bargaining? "Although plea bargaining between the state and the accused is a universally accepted practice, many jurisdictions bar judges from active participation in plea negotiations. Indeed, on those occasions when this court has addressed claims regarding the active participation in plea bargaining by the judge responsible for trying the case and for sentencing the defendant in the event of a conviction, we have underscored the inappropriateness of such conduct due to its inherent dangers. E.g., Safford v. Warden, 223 Conn. 180, 194 n. 16, 612 A.2d 1161 (1992); State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984); cf. State v. Fullwood, 194 Conn. 573, 580-81, 484 A.2d 435 (1984)." State v. Revelo, 256 Conn. 494, 506 (2001). In the Federal system a trial judge is expressly enjoined by Fed Rule of Crim. Pro. 11 from any role except to accept or reject a plea agreement entered into between the defendant and the prosecutor. See, for example, United States v. Adams, 634 F.2d 830 (5th cir. 1981) and United States v. Werker, 535 F.2d 198 (2nd cir. 1976).

In Connecticut, trial court judges are permitted, at least to some degree, to participate in pretrial plea discussions between the state and the defendant. "Although we have not adopted the federal rule flatly prohibiting trial judges from any participation in plea bargaining . . . our rules of practice expressly authorized the trial judge to do no more than to indicate whether a proposed agreed disposition may be accepted or rejected . . . Active involvement by trial judges in plea negotiations has frequently been criticized." State v. Fullwood, 194 Conn. 573, 580 (1984). At a later time, our Supreme Court gave approval to a process whereby trial judges act as facilitators to help the parties reach agreement. "The plea negotiations involved an assistant state's attorney, defense counsel and eventually a judge who assisted the adversaries in reaching an agreement, which resulted in the court's recommendation of an aggregate sentence of fifty years on all charges. The judge was responsible for conducting plea negotiations and, if an agreement was reached, for holding a plea and sentencing hearing. If negotiations were not successful, however, a judge who was not involved in the plea negotiations would have presided at trial and pronounced sentence if the defendant were found guilty. We approve of the procedure followed in reaching the plea agreement." State v. Niblack, 220 Conn. 270, 280 (1991). Connecticut trial judges are, consequently, allowed to take an active role in the pretrial negotiations between the state and defendant and to assist in "brokering a deal," provided, of course, that in the event an agreement is not reached the settlement judge cannot be the trial judge.

But consider the warning raised by Judge Weinfeld, "The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice. Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence. A guilty plea predicated upon a judge's promise of a definite sentence by its very nature does not qualify as a free and voluntary act. The plea is so interlaced with the promise that the one cannot be separated from the other; remove the promise and the basis for the plea falls." United States v. Gilligan, 256 F.Sup. 244, 254 (SDNY 1966).

Notwithstanding, in the instant case, the state has disavowed that there is an agreement between the prosecutor and the defendant. Instead, the Respondent and the state seem to suggest that the agreement, if indeed there was an agreement, was between the defendant and the trial judge. This would appear to be impermissible, even under the fairly liberal participation of judges in the pretrial bargaining process in Connecticut approved by our Supreme Court. "[W]here the judge who participates in plea negotiations is also responsible for conducting the trial and, therefore, for sentencing the defendant in the event of a conviction . . . the dangers we identified in State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984), are present. Those dangers are that (1) the trial judge's impartiality may truly be compromised by his own perception of `a personal stake in the agreement,' resulting in resentment of the defendant who rejects his suggested disposition, (2) the defendant may `make incriminating concessions during the course of plea negotiations,' and (3) the trial judge may become or appear to become an advocate for his suggested resolution." State v. Safford, 223 Conn. 194, n. 16. Those dangers apply doubly where the agreement is between the judge and the defendant and not the state. So it is the conclusion of this court that under Connecticut law, there can never be a legitimate agreement solely between the trial judge and the defendant as the parties to a pretrial agreement. In order to have a valid pretrial agreement, the state must, therefore, be a party to the agreement.

Certainly as to whether the petitioner is entitled to have an additional 78 days of pretrial jail credit applied to his sentence. Senior Assistant State Attorney Melchiorre made it clear in her testimony that this was never her understanding, even if it was the understanding of the petitioner and the judge.

At several key points in the cross examination of the Petitioner, counsel for the respondent pointedly made reference to a deal between the petitioner and "this prosecutor."

Judicial participation in pretrial agreements is completely prohibited in the federal system as well as in Alaska, see State v. Buckalew, 561 P.2d 289, 290-91 (Alaska 1977); Pennsylvania, see Commonwealth v. Evans, 252 A.2d 689, 691 (Pa. 1969); Texas, Ex parte Spicuzza, 903 S.W.2d 381, 384 (Tex.App. 1995); Utah, State v. Hoff, 814 P.2d 1119 (Utah 1991); West Virginia, W.Va.R.Crim.P. 11(e); and Wisconsin, In re Amendment of Rules of Civil and Criminal Procedure, 383 N.W.2d 496, 498 (1986). In other states, limited judicial involvement is permitted. However, in no state is it permissible for the trial judge and the defendant to enter into a pretrial plea agreement without the state also being a party. But note the finding in at least one habeas case, here in Connecticut, "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 . . . and petitioner. At no time was the state a party to any plea agreement with petitioner." (Emphasis added.) Palmenta v. Warden, 2006 Ct.Sup. 22344 (December 14, 2006).

"Regardless of the judge's objectivity, it is the defendant's perception of the judge that will determine whether the defendant will feel coerced to enter a plea. Any compulsion felt by the defendant will surely be aggravated where, as here, the government refuses to participate and is absent from the bargaining process and the defendant deals only with the judge in framing the terms of the agreement. The defendant is then more likely to come to view the judge as an adversary `rather than as an embodiment of (the) guarantee of a fair trial and just sentence.' Gallagher, Judicial Participation in Plea Bargaining: A Search for New Standards, 9 Harv.Civ.Rights — Civ.Lib.L.Rev. 29, 44 (1974)." United States v. Werker, supra at 202.

Since that would appear to be the case, then what is the result if the state stands silent? As in the instant case, this Court believes that Connecticut law permits a reviewing court (whether that review be in habeas or the normal course of appeal) to conclude that the state is not allowed to stand silent and through its silence, thereby, induce a defendant to plead guilty in reliance upon an agreement to which the state later tries to claim not to be a party. The state receives enormous benefit when a defendant elects to plead guilty. The necessity to put on evidence is thereby averted and the state may save a large amount of money by being relieved of the burden to engage in a lengthy trial. Victims may be spared the pain and exposure that comes from having to testify in open court. "However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, to confront one's accusers, Pointer v. Texas, 380 U.S. 400, to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, to remain silent, Malloy v. Hogan, 378 U.S. 1; and to be convicted by proof beyond all reasonable doubt, In re Winship, 397 U.S. 358." Santobello, supra at 264. It is clear then, that considerable benefits inure to the state when a defendant elects to plead guilty.

If the defendant has given up these precious constitutional rights in the reasonable belief that there will be a benefit flowing to him or her, then that defendant should be entitled to receive the fruits of his agreement. Where, as in the instant case, a defendant believes that: (1) the state concurs with a term or terms of a pretrial agreement; (2) the defendant's belief is not unreasonable in light of all of the circumstances under which the plea was taken; and, (3) the state does nothing prior to the acceptance of the guilty plea to make it clear that it does not consent to the agreement, then the state must be found to be bound by the terms of that agreement, even in the absence of explicit agreement. "When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state . . . The same concept of fairness ordinarily compels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea." State v. Stevens, 278 Conn. 1, 20 (Norcott, J. concurring 2006).

The government "cannot rely upon a `rigidly literal construction of the language' of the agreement . . ." United States v. Hand, 913 F.2d 854, 856 (10th Cir. 1990) (quoting United States v. Shorteeth, 887 F.2d 253, 256 (10th Cir. 1989).

There is persuasive support for this from recent case law out of the state of Maryland. "We construe the terms of a plea agreement according to the reasonable understanding of the defendant when he pled guilty. Id. See also United States v. Scott, 469 F.3d 1335, 1338 (10th Cir. 2006); United States v. Farias, 469 F.3d 393, 397 n. 4 (5th Cir. 2006); United States v. Williams, 444 F.3d 1286, 13 05 (11th Cir. 2006); United States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004); United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003); State v. Bethel, 854 N.E.2d 150, 167 (Ohio 2006); State v. Bisson, 130 P.3d 820, 830 (Wash. 2006)." Solorzano v. State, 93 (Md. 3-19-2007).

Notwithstanding, the Respondent in the instant case is attempting to focus the issue on what the particular prosecutor may have promised and asserts that this is the only enforceable part of the deal. While the issue has not been expressly dealt with here in Connecticut, other states do not permit this distinction to be drawn. "When either the prosecution breaches its promise with respect to a plea agreement, or the court breaches a plea agreement that it agreed to abide by, the defendant is entitled to relief. Mabry v. Johnson, 467 U.S. at 504, 509 (1984), 104 S.Ct. at 2547; Miller, 272 Md. at 255, 322 A.2d at 530." Solorzano v. State, 93 (Md. 3-19-2007), at p. 7. From the facts adduced at the habeas trial, it is clear that the petitioner was induced to plead guilty in part due to his not unreasonable reliance upon a belief that he would be receiving jail credit back to February 25, 2003 on all of his files. The state did nothing to manifest its non-consent to this term and the trial court, in comments on the record at sentencing, seemed to corroborate the petitioner's position (albeit in an admittedly ambiguous manner).

Based on the foregoing, there is enough for this court to conclude that there was an agreement that the petitioner was to receive jail credit back to February 25, 2003 on all of the files to which he entered his plea of guilty. Since he did not get the credit as he believed he would, then the plea bargain is not being fulfilled and the petitioner is being deprived of the benefit of his bargain.

In general, when there is a breach of a pretrial agreement, the defendant is entitled either to receive specific performance, or in the alternative, to be allowed to withdraw his pleas of guilty. It is clear that, in general, the petitioner is satisfied with the pretrial agreement, except for the jail credit issue, does not want to withdraw his pleas, and has even gone so far as to express a fear of the prosecutor in this case. It is clear that the petitioner is only seeking an order from this Court mandating specific performance as to the pretrial jail credit that is at issue. There is, however, a major problem in that regard. The "agreement" in connection with the application of jail credit retroactive back to February 25, 2003 is illegal and this Court cannot order specific performance because to do so would be to order the Department of Correction to commit an illegal act, or at least an act that is contrary to statutes duly enacted by the Legislature.

It is clear that the application of jail credit for pretrial detention in the state of Connecticut is legislatively created. "`Pre-sentence credit is a creature of statute and that, as a general rule, such credit is not constitutionally required.' Hammond v. Commissioner of Correction, supra, 259 Conn. 879; see also Johnson v. Manson, 196 Conn. 309, 321 n. 12, 493 A.2d 846 (1985) ('[t]he credit sought by the petitioner under § 18-98d, statutorily created, is a matter of legislative grace'), cert denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986). Since pre-sentence confinement credits are a matter of legislative grace, the manner in which they are applied to reduce a sentence and the proscription against double counting are properly determined by the legislature." Harris v. Commissioner of Correction, 271 Conn. 808, 833 (2004). Moreover, the Commissioner of Correction is under a legislative mandate to ensure that she correctly determines an inmate's pretrial jail credits. It is clear that an inmate can only earn pretrial confinement jail credit when held on a mittimus subsequent to a failure to post bond. It is clear, again from the evidence in this case, that the petitioner is asking this Court to award jail credit for at least 78 days in which he was not held in lieu of bond. That cannot be done by the habeas court for to do so would place the Commissioner of Correction in the untenable position of having to either disobey an order of this Court or the mandates of a legislatively enacted statute. Undoubtedly, the trial court could have fashioned appropriate relief by reducing the sixteen-year sentence by a total of 78 days, however, that was not done. It is clear that the habeas court does not have jurisdiction to re-sentence the petitioner so that remedy is not within the tool box of remedial measures available to this court. Therefore, this Court is without a remedy available to order specific performance of the agreement. The only option for the petitioner would be to have his guilty pleas set aside and once again face the prosecutor with his cases having been restored to the regular criminal docket. Given the state of the evidence and pleadings in this case, it is clear that the petitioner does not want to have this remedy taken in his case. Consequently, the petitioner cannot be granted the remedy that is being sought, the petition must, therefore, be denied.

"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." See CGS § 18-98d(c).

"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 pre-sentence confinement to the time such person began serving the term of imprisonment imposed." See CGS § 18-98d(a)(1).

Specifically on Docket No. CR03-0209071 under which be began to be held in custody on May 13, 2003.

"The refusal to credit the petitioner with jail time affects the period of his confinement and directly impinges on his fundamental right of liberty . . . Hence his lengthened confinement must be justified by a compelling state interest. The compelling state interest in upholding the respondent's calculations here lies in the unacceptable ramifications of transferring jail time credit between different offenses . . . The petitioner in effect would have begun serving the sentence before he was even charged with the offense in the information. A petitioner should not, upon posting bail, leave a correctional center with the perception that there is jail time accrued in his name which may be applied to subsequent sentences that may follow criminal activity occurring after his release on bail but before the disposition of the original charges. `The principle that extra time served on a criminal sentence may not be banked is strongly rooted in the public policy that individuals should not be encouraged to commit crimes knowing they have a line of credit that can be applied against future sentences.' [citations omitted]." Payton v. Albert, 209 Conn 23, 33-34 (1988).

To afford the correct relief sought by the petitioner, the sentence on Docket No. CR03-0209071 would have to have been "Committed to the custody of the Commissioner of Correction for Fifteen years, nine months and 12 days, suspended after the service of seven years, nine months and 12 days." The sentence of each of the remaining documents would have to have been adjusted in a like manner to achieve the desired result of having the "to serve portion" of his sentences end on Feb. 23, 2011. While this would have avoided the problem of having to order the Commissioner of the Department of Correction to take an illegal act, it would have achieved the same result and established a single date of February 24, 2011 on which all of the petitioner's sentences would be discharged.

"The court, prior to sentencing, may ascertain how much good time the defendant has earned on any prior sentence or sentences, thereby enabling the court to determine with precision how much concurrent prison time must be imposed to accomplish the court's sentencing objectives . . . Although in some instances, there may be incongruous results, those results are not inevitable and may be avoided by a discerning sentencing court." Rivera v. Commissioner of Correction, 254 Conn. 214, 249-50 (2000).

Indeed, such a remedy is not specifically sought in the amended petition, which seeks to have this court award pre-sentence confinement credits, order the petitioner released, or such other relief as law and justice may require.


In summary, then, this Court draws the following conclusions:

In order that there be a valid pretrial agreement, both the state and the defendant must reach agreement as to the terms of the agreement.

While the issue has not been conclusively determined in Connecticut, it appears that the available case law in our state cautions the trial judge to avoid becoming too deeply immersed in detailed pretrial negotiations. Moreover, it appears that an agreement solely between the defendant and the trial judge does not constitute a valid pretrial agreement.

Where the state acts as a passive observer, fails to register an objection, and thereby acquiesces in an agreement between the trial judge and the defendant whereby the defendant is induced to plead guilty, the state, being the beneficiary of the defendant's waiver of important state and federal Constitutional rights, will be bound by the agreement and will be estopped from denying that there is such an agreement at a later time.

A habeas court can only grant the relief that is being sought by the petitioner if such relief is permissible under law. Where a habeas petitioner asks for relief that is beyond the power of the court to grant, the petition, irrespective of other findings, must, therefore be denied.

The Petition for a Writ of habeas Corpus is Denied.

Summaries of

Zabian v. Comm. of Correction

Connecticut Superior Court Judicial District of Tolland at Somers
May 14, 2007
2007 Ct. Sup. 6749 (Conn. Super. Ct. 2007)
Case details for

Zabian v. Comm. of Correction

Case Details


Court:Connecticut Superior Court Judicial District of Tolland at Somers

Date published: May 14, 2007


2007 Ct. Sup. 6749 (Conn. Super. Ct. 2007)
43 CLR 636