Opinion
No. CV06-4001360 S
December 21, 2007
MEMORANDUM OF DECISION
On October 4, 2006, the petitioner filed a petition for a writ of habeas corpus, which was amended on June 25, 2007. The amended petition raises claims in five counts; first, a due process violation arising from a plea bargain violation; second, ineffective assistance of trial defense counsel; third, a due process violation resulting from retroactive application of a court's construction of a criminal statute; fourth, a double jeopardy violation; and fifth, that petitioner's plea was rendered involuntary. Respondent's return denies that the petitioner is entitled to the relief he seeks and raises the special defenses that the Department of Correction (department) has correctly calculated petitioner's sentences and discharge dates and that petitioner has procedurally defaulted as to the claims in counts one, three, four and five. Petitioner's reply denies respondent's special defenses, alleges cause for the default and prejudice to rebut the claimed procedural default in count one, denies that procedural default is applicable to the claims in counts one, three, and four and, therefore, need not show cause and prejudice, and avers that petitioner has not procedurally defaulted as to counts one and four.
The matter came before this court for a trial on the merits on November 28, 2007, at which time the court received into evidence transcripts, mittimi, timesheets and copies of court documents and decisions. The court also heard testimony from Attorney Elizabeth Reid, the public defender who represented petitioner in the criminal matter primarily at issue, the petitioner himself and Department Record Specialist II, Michelle Deveau. From the foregoing and the facts pleaded in the amended petition and admitted to by the respondent, the court makes the following findings of fact.
FINDINGS OF FACTS
1. The petitioner was arrested and arraigned on December 1, 2000 in connection with docket number CR00-164866 in the Judicial District of Fairfield at Bridgeport (Bridgeport case). The petitioner was able to post bond very shortly after his arrest.
Whatever number of days petitioner was held before posting bond is not at issue in this matter.
2. The petitioner then was arrested and arraigned on April 30, 2001 in connection with docket number CR01-92961, in the Judicial District of Stamford at Norwalk (Norwalk case). The petitioner did not post bond and was held in lieu of bond in the Norwalk case commencing April 30, 2001.
3. On June 4, 2001, the bond was increased in the Bridgeport case and, consequently, petitioner was held in lieu of bond in both the Bridgeport and Norwalk cases commencing June 4, 2001.
4. On November 28, 2001, petitioner pleaded guilty in the Bridgeport case and was sentenced to a total effective sentence of five years, execution suspended after the service eighteen months, followed by three years probation. Upon receiving petitioner on the Bridgeport judgment mittimus, the department computed the presentence confinement credit (jail credit) to be applied to that sentence as 177 days, representing the time period of June 4, 2001 through November 28, 2001. Upon becoming a sentenced prisoner, petitioner ceased earning jail credit on the Norwalk case commencing November 28, 2001.
5. On March 18, 2002, petitioner pleaded guilty in the Norwalk case and was sentenced to a total effective sentence of five years, execution suspended after the service of twenty-one months, followed by four years probation, to run concurrent with the Bridgeport sentence. Upon receiving petitioner on the Norwalk judgment mittimus, the department had to determine how much jail credit to apply to the Norwalk sentence.
6. At the time petitioner originally came into custody on the Bridgeport and Norwalk sentences, the department sought to determine which sentence would receive the most benefit from the application of jail credit. Stated somewhat differently, the department would seek to advance discharge dates, if possible, by applying jail credit, including concurrent terms of jail credit, to the docket that would receive the most benefit from such application.
7. Petitioner has precisely such a concurrent term of jail credit: 177 days, the time period of June 4, 2001 through November 28, 2001, during which he was held in lieu of bond simultaneously on both the Bridgeport and Norwalk cases. Thus, subsequent to the sentencing in Norwalk and in accordance with the effort to maximize the benefit of jail credit, the department reviewed the Bridgeport and Norwalk and determined that the application of the 177 days would benefit petitioner the most if also applied to the Norwalk sentence.
This is readily discernable from several timesheets and a calculation form (see Petitioner's Exhibits 5, 6 and 7), as well as the facts not disputed as summarized in the opinion in State v. Carmona, 104 Conn.App. 828 (2007), officially released November 20, 2007 (Petitioner's Exhibit 12). The 18-month Bridgeport sentence imposed November 28, 2001 would expire, without applying any credits whatsoever, on May 27, 2003. Petitioner earned two days of jail credit from December 1 to 2, 2000, which are not at issue, resulting in a discharge date of May 25, 2003. Applying 177 days of jail credit results in a discharge date on or about November 29, 2002. The 21-month Norwalk sentence imposed March 18, 2002 would expire, without applying any credits whatsoever, on December 17, 2003. There are thirty-five days of jail credit unique to the Norwalk sentence, from April 30, 2001 through June 4, 2001, that can be applied, resulting in a discharge date on or about November 12, 2003. Based on these calculations, the Norwalk sentence is the controlling sentence because of the later discharge date.
Applying 177 additional days of jail credit to the Norwalk sentence would advance its discharge date to about May 19, 2003 and make the Bridgeport sentence the controlling sentence. It becomes clear that the Norwalk sentence can only remain the controlling sentence, while advancing its discharge date, if the 177 days is applied to both the Bridgeport and Norwalk sentences. This is evidenced by the fact that removal (i.e., actual transference) of 177 days of jail credit from the Bridgeport sentence and application to the Norwalk sentence would result, respectively, in discharge dates of May 25, 2003 and May 19, 2003. This would make the Bridgeport sentence the controlling sentence with the later discharge date. Thus, only if the 177 days of jail credit are simultaneous applied to both dockets (i.e., used twice) can the Norwalk sentence remain as the controlling sentence while also advancing its discharge date.
If such double crediting did occur, in contravention of § 18-98d and Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), it is not specifically put at issue in the instant habeas corpus petition. Consequently, the court will not address how such misapplication affected this matter. See, e.g., Mirault v. Commissioner of Correction, 82 Conn.App. 520, 525, 844 A.2d 961 (2004). What is clear from the foregoing is that in this case, any correction by the department went not only to correcting a misapplication as made clear in Cox v. Commissioner of Correction, 271 Conn. 844, 849-53, 860 A.2d 708 (2004) (error for department to apply simultaneously earned days of jail credit only to later imposed sentence), but also to another likely misapplication as clarified by the central holding of Harris itself (i.e., once jail credit is applied to a sentence it cannot be again applied to another subsequently imposed sentence).
8. Based on the department's calculations and applications of jail credit to the Bridgeport and Norwalk sentences, petitioner discharged from the Norwalk sentence on May 19, 2003, and began the sentences of probation. Thus, the Norwalk sentence was the controlling sentence at that time, being the longest to run, and petitioner discharged previously at some point from the Bridgeport sentence.
9. On November 30, 2004, the Supreme Court released Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004), and Hunter v. Commissioner of Correction, 271 Conn. 856, 860 A.2d 700 (2004) ( Harris trilogy).
10. The department, after consultation with the Office of the Attorney General, started making corrections in December of 2004 to prisoners' sentences, but only if they were in custody or were returned to custody on sentences imposed prior to the release of the Harris trilogy.
11. Petitioner was on probation until April 26, 2006, at which time he arrested and arraigned for a violation of probation (VOP) in the Bridgeport case. Petitioner was held in lieu of bond until the next day, April 27, 2006, at which time he was arrested and arraigned for a VOP in the Norwalk case. Petitioner continued to be held in lieu of bond until he subsequently was sentenced for the VOPs.
12. Petitioner was represented in the Norwalk VOP by Public Defender Mary Elizabeth Reid, who had also represented in that matter when it was originally resolved by plea agreement in 2002. The state offered petitioner a twenty-month sentence for the Norwalk VOP in exchange for his admission that he violated his probation. Reid conveyed the offer to petitioner and explained the terms of the agreement. Reid did not discuss with petitioner the original to-serve portion of the sentence imposed in 2002, as petitioner discharged from the original to-serve portion in 2003. Reid had no expectation that petitioner would serve more than twenty months on the VOP and, although she communicated with the attorney representing petitioner in the Bridgeport VOP to coordinate concurrent sentences, she did not contact the department to obtain information how petitioner's jail credit would be computed. Reid made no explicit statement at the VOP proceeding regarding jail credit because the previous to-serve portion had been fully served. Reid testified that she never told petitioner he would discharge on a specific date. As to any jail credit petitioner might receive for being held in lieu of bond on the VOP, Reid was unsure what petitioner would eventually be credited with by the department, but Reid never contemplated the department would require petitioner to remain incarcerated for more than twenty months on the Norwalk VOP.
13. On July 14, 2006, petitioner admitted a violation of probation in the Norwalk case. In accordance with the agreement reached with the state, the court, in accordance with General Statutes § 53a-32(b), revoked the sentence of probation and imposed a sentence of twenty months to serve as a result of the VOP. Upon receiving petitioner into custody on the July 14, 2006 VOP mittimus, petitioner again was a sentenced prisoner and no longer earned jail credit on the Bridgeport file.
14. On July 18, 2006, petitioner admitted a violation of probation in the Bridgeport file. After the court revoked the sentence of probation, petitioner was sentenced to serve twelve months for the VOP, concurrent with the Norwalk sentence.
15. The department, relying on Wright v. Commissioner of Correction, 216 Conn. 220, 225, 578 A.2d 1071 (1990), views and treats a sentence imposed for a violation of probation as a continuation of the original sentence. Accordingly, an original sentence as modified by a sentence imposed for a violation of probation is not viewed or treated as a sentence imposed for a new criminal offense. The original sentence now modified by the sentence imposed for the violation of probation relates back to the original offense and sentence. Any calculations performed subsequent to a violation of probation sentence are, therefore, part of the ongoing process of ensuring each docket receives the correct application of jail credit, as the department is statutorily responsible for doing under General Statutes § 18-98d(c).
16. Upon receiving petitioner back into custody on both the July 14, 2006 Norwalk VOP mittimus and the July 18, 2006 Bridgeport VOP mittimus, the department reviewed its calculations and applications of jail credit in the Norwalk and Bridgeport files. The department determined, based on this review, that petitioner's jail credit had not been correctly calculated and applied. More specifically, as indicated in Harris and the companion case Cox, petitioner was never eligible to have the 177 days of jail credit, representing the time period of June 4, 2001 through November 28, 2001, applied to the Norwalk sentence once it had been applied to the Bridgeport sentence.
17. The department removed the 177 days of jail credit applied in error to the Norwalk sentence. The removal of the 177 days resulted in an adjustment of petitioner's discharge date from the Norwalk sentence. Thus, petitioner presently is being credited with a total of 113 days of jail credit in the Norwalk file, 35 days representing the time period of April 30, 2001 through June 4, 2001, and 78 days representing the time period of April 27, 2006 through July 14, 2006.
18. Petitioner filed a motion to correct his Norwalk sentence pursuant to Practice Book § 43-22. The court (Keegan, J.) dismissed the motion to correct on jurisdictional grounds. The dismissal was affirmed by the Appellate Court in State v. Carmona, 104 Conn.App. 828 (2007).
19. Additional facts will be addressed as necessary to resolve the petitioner's claims.
DISCUSSION SPECIAL DEFENSES AND MOTION TO DISMISS
The petitioner in the instant matter has through his amended petition raised various claims in five counts. Respondent has raised affirmative defenses to these claims and petitioner has filed a reply responding to these defenses. After petitioner completed presenting evidence, respondent made an oral motion to dismiss all five counts of the petition. The court will begin its discussion with the special defenses raised in the return.
Practice Book § 23-29 in relevant part states: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: . . . (5) any other legally sufficient ground for dismissal of the petition exists."
Respondent's return raises two special defenses pertaining to count one. First, that respondent has correctly calculated and applied jail credit and that petitioner has been properly credited with all credit he is entitled to receive. The court notes as to this defense, which really is a general defense and not a special defense, that respondent's recalculation itself (i.e., the mathematics) is not at issue, although the effects or consequences of a jail credit recalculation are at issue via petitioner's claims. The general defense is, therefore, more properly viewed and treated as a simple denial that the department committed error.
Affirmative defense has been defined as: "A defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true. Examples of affirmative defenses include duress and contributory negligence (in a civil case) and insanity and self-defense (in a criminal case)." BLACK'S LAW DICTIONARY 430 (7th ed. 1999).
Respondent's second defense in the return is that petitioner's claim in count one is procedurally defaulted for failure to challenge on appeal Judge Keegan's adverse ruling on the motion to correct an illegal sentence. As to that claim of procedural default, it is patently clear that petitioner did, in fact, comply with the mandate enunciated in Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). Petitioner filed a motion to correct his sentence and appealed from the adverse decision thereon.
The Supreme Court recently emphasized that "[i]t is true that under Cobham v. Commissioner of Correction, [ 258 Conn. 30, 38, 779 A.2d 80 (2001)], the petitioner first was required to raise his Santobello [v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971),] claim via a motion to correct an illegal sentence or on direct appeal. As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies." Orcutt v. Commissioner of Correction, 284 Conn. 724, 737 (2007). There are, nevertheless, exceptions to the exhaustion requirement. See, e.g., Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995) (". . . futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings"). An appeal to the Supreme Court from the Appellate Court's adverse decision in Carmona is discretionary, as would be a further appeal to the United States Supreme Court.
As the discussion of Gipson v. Commissioner of Correction, 257 Conn. 632, 778 A.2d 121 (2001), in State v. Casiano, 282 Conn. 614, 622-24, 624, 922 A.2d 1065 (2007) indicates, appointed counsel's role includes assessing whether there is a sound basis for a petition for certification to appeal. Petitioner's counsel in the instant habeas, who also represented him on the motion to correct and the appeal therefrom, did not explicitly state that he had determined no sound basis existed. Given the Appellate Court's decision in Carmona, when viewed in the context of other recent decisions such as Orcutt, this court is hard-pressed to conclude that a petition for certification to the Supreme Court necessarily would result in a favorable decision. Even if such a petition for certification to appeal were sought and granted, it is entirely speculative whether the Supreme Court would reverse the Appellate Court.
Respondent raised procedural default in the return filed on September 21, 2007. The record shows that Judge Keegan on July 24, 2007 signed the transcript of the June 22, 2007 hearing and subsequently filed a memorandum of decision dated August 24, 2007, which was filed in the Appellate Court Clerk's Office on August 28, 2007. Petitioner had, in fact, taken an appeal from Judge Keegan's ruling prior to the filing of the return, although the Appellate Court had neither heard the matter nor ruled at the time the return was filed. The record before this court does not indicate whether petitioner filed with the Supreme Court a petition for certification to appeal from the Appellate Court's decision.
The Appellate Court's decision evidences that petitioner filed a motion to expedite the appeal, which was granted. State v. Carmona, supra, 104 Conn.App. 832, n. 4. The appeal was argued November 13, 2007, and the Appellate Court's decision was released as a slip opinion one week later on November 20, 2007. The Appellate Court began its decision by noting that "[i]n this appeal, [petitioner] raises important and troubling issues concerning the calculation and application of presentence confinement credit." Id., at 829.
Respondent's oral motion to dismiss count one after evidence was completed was premised on petitioner not exhausting his appellate remedies (i.e. not petitioned the Supreme Court for certification to appeal from the Appellate Court's decision).
Judge Keegan dismissed the motion to correct on jurisdictional grounds, which was affirmed by the Appellate Court. The Appellate Court noted that at the June 22, 2007 hearing, ". . . counsel for defendant stated that `a motion to correct . . . must be filed before these claims can be pursued in a petition for a writ of habeas corpus . . . [T]hat's why we're here, in order to preclude the state in a habeas [proceeding] from raising the claim of procedural default.'" State v. Carmona, supra, 104 Conn.App. 831.
This court has already noted that petitioner's present habeas counsel also represented him on the motion to correct and the appeal therefrom. Counsel for the respondent in no way is identified as counsel of record in the motion to correct or on the brief for the ensuing appeal. The Appellate Court agreed with the state's argument in the appeal that the habeas court was the proper forum to bring his claims and indicated it was troubled by the incongruity presented by respondent raising procedural default premised on petitioner's failure to appeal from Judge Keegan's ruling. State v. Carmona, 104 Conn.App. 833 n. 5 (2007).The failure to properly adhere to procedure and seek relief in the appropriate forum may result in a claim not being addressed on the merits. Conversely, failure to raise procedural default as an affirmative defense allows a court to address a claim that it otherwise would not be able to address. See, e.g., Milner v. Commissioner of Correction, 63 Conn.App. 726, 732-34, 779 A.2d 156 (2001). The purpose of procedural default can best be described as to steer or channel claims into the appropriate forum where those claims should first be addressed. Procedural default is not a means to ban claims or entirely foreclose remedies. In this case, the state's correct assertion that petitioner's remedy, if any, is sought in the habeas corpus forum and respondent's defense of procedural default "whipsaws" petitioner into a zone where there apparently is no forum in which to seek relief. This cannot be the goal or purpose of procedural default.
This is evident from the Supreme Court decision in Cobham v. Commissioner of Correction, 258 Conn. 30, 38-39, 779 A.2d 80 (2001): "As we noted in Copeland [v. Warden, 225 Conn. 46, 47-48 n. 2, 621 A.2d 1311 (1993),], `it is to a defendant's advantage to move in the trial court, pursuant to [§ 43-22], to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of [a] defendant's challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to § 43-22].' . . . By filing a motion with the trial court, a defendant not only can be heard more expediently, but he also has access to certain remedies with regard to sentencing that the habeas court, the Appellate Court, and this court do not have the authority to order. For example, to correct an illegal sentence, only the trial court can reconstruct the sentence to conform to its original intent or the plea agreement; eliminate a sentence previously imposed for a vacated conviction; or resentence a defendant if it is determined that the original sentence was illegal . . ." (Internal citations and quotation marks omitted.) The sentencing court's ongoing authority over a sentence it imposed is self-evident from Orcutt v. Commissioner of Correction, supra, 284 Conn. 743-44.
Respondent's return also raises procedural default as to counts, three, four and five. Respondent avers that each of the claims raised in those counts should have been raised in some manner either before the trial court or on direct appeal, but were not. Respondent relies on Tart v. Commissioner of Correction, 94 Conn.App. 134, 139, 892 A.2d 298, cert. denied, 278 Conn. 904, 896 A.2d 107 (2006) ("Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner"). Tart is easily distinguishable: in Tart, the petitioner had neither filed a motion in accordance with § 43-22 to correct an illegal sentence nor raised such a claim on direct appeal. The petitioner in Tart was found to have procedurally defaulted and not entitled to have a habeas court consider his claim. The instant petitioner has, contrary to the petitioner in Tart, filed a § 43-22 motion and appealed the court's adverse ruling.
Based upon the foregoing discussion regarding the special defenses raised in respondent's return, the court finds that the general defense that the department has properly credited petitioner with jail credit is more properly viewed and treated as a simple denial that the department committed error. As to respondent's assertion that petitioner has procedurally defaulted, the court concludes that petitioner has not, in fact, procedurally defaulted. Thus, procedural default is inapplicable to the claims in counts one, three, four and five. Respondent's motion to dismiss those four counts is, therefore, denied.
Respondent's oral motion to dismiss also sought to dismiss count two of the amended petition, which is a claim of ineffective assistance of counsel. The relief sought by petitioner essentially only seeks to have the sentence adjusted or corrected (i.e., modified). At the habeas trial, petitioner testified that he does not want his sentence vacated or changed. That is, petitioner does not want this court to vacate his sentence and conviction and refer the matter to the trial court for further proceedings, potentially exposing him to a sentence longer than twenty months. Respondent argues that petitioner originally wanted, and still wants, a sentence of twenty months to serve. Respondent posits, therefore, that petitioner cannot prove his ineffective assistance of counsel claim arising out of a guilty plea because, as required by the Strickland/Hill test, petitioner cannot prove the prejudice prong of that test.
As relief sought petitioner states he wants the habeas court to either order a revised mittimus or order petitioner to be resentenced. Given Orcutt v. Commissioner of Correction, supra, it would be impermissible for this court to order a revised mittimus (i.e., resentence petitioner) as habeas relief for an illegal sentence claim. As Orcutt also clarifies, however, this court can order the sentencing court to resentence petitioner if the habeas court concludes the plea agreement's sentence has not been effectuated.
"In [ Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable . . .
"Moreover, [i]n Hill v. Lockhart, [ 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Citations omitted; internal quotation marks omitted.) Niver v. Commissioner of Correction, 101 Conn.App. 1, 3-4, 919 A.2d 1073 (2007).
"In the usual ineffective assistance of counsel case, a habeas petitioner must show that his counsel was ineffective and such ineffectiveness prejudiced the petitioner in that but for the ineffective assistance there would have been no conviction . . . That standard has been modified for ineffectiveness claims that result from guilty pleas . . . In such cases, to satisfy the `prejudice' requirement, the [petitioner] must show that there is a reasonable probability that, but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial . . .
"The reasonable probability requirement does not require a petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case, but he must establish a probability sufficient to undermine confidence in the outcome . . ." (Emphasis added.) (Internal citations and quotation marks omitted.) Pagan v. Commissioner of Correction, 104 Conn.App. 531, 533 (2007).
Petitioner here does not need to show that he would have pleaded not guilty, insisted on going to trial and prevailed at trial by being found not guilty. Petitioner does have to show, however, that he would have pleaded not guilty, insisted on going to trial and that this court's confidence in that the outcome of the trial would be sufficiently undermined. This court's confidence of the outcome of a trial would be sufficiently undermined if the court were able to conclude, with a reasonable probability, that petitioner would be found not guilty of one or more charges or were to receive a sentence shorter than the one he negotiated via plea bargaining. Petitioner has in no way presented credible evidence that undermines this court's confidence in the outcome of the proceeding, for he has neither demonstrated that he would have been found not guilty on any count nor that he would have received a shorter sentence on the Norwalk VOP.
The burden of proof petitioner must surmount is well-established: deficient performance and that the deficient performance prejudiced petitioner. Even if this court assumes petitioner has proven deficient performance, which he has not, his own testimony is fatal to proving the required prejudice. Petitioner's own testimony clearly demonstrates that there is no reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Nor has petitioner undermined this court's confidence in the outcome of the proceeding. Accordingly, respondent's motion to dismiss count two is granted.
COUNT ONE
In count one, petitioner alleges that his due process rights were violated because the sentence he is serving does not comport with the terms of the plea agreement. Petitioner relies on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in support of this claim. "In Santobello, the United States Supreme Court held that, `when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.' Santobello v. New York, supra, 404 U.S. 262." Orcutt v. Commissioner of Correction, 284 Conn. 724, 727 n. 1 (2007).
The court notes at this juncture several submissions to the court after completion of the November 28, 2007 habeas hearing. On December 6, 2007, Assistant Attorney General Ann Lynch filed with the court a letter apprising the court of Wooten v. Commissioner of Correction, 104 Conn.App. 793 (2007), which was officially released on December 11, 2007. Then, on December 12, 2007, Deputy Assistant State's Attorney Erik Lohr filed a letter apprising the court of Orcutt v. Commissioner of Correction, supra, which was officially released by the Supreme Court on December 6, 2007. On December 12, 2007, the court also received an objection by petitioner to the Orcuct submission, which also asks the court to strike the submission. The court hereby denies petitioner's objection and motion to strike and notes that counsel's letter accompanying Orcutt only serves the function of being a notice to the court. The Supreme Court's decision speaks for itself. This court will, as it must, take judicial notice of applicable and binding case law, irrespective of how it is presented to the court by an advocate.
Petitioner's claim is that his plea rested on the promise or agreement that he would serve twenty months for the Norwalk VOP and that this promise is not being fulfilled. This claim warrants little discussion. Petitioner unquestionably is serving precisely twenty months, no more and no less, for the Norwalk VOP. The 177-day adjustment made by the department in no way alters or affects the twenty-month sentence imposed for the Norwalk VOP. The department's error of crediting the Norwalk sentence with the 177-day adjustment to petitioner's benefit, at least temporarily, until he returned into custody on that docket and sentence. The department's correction, performed in accordance with the department's ongoing statutory duty under § 18-98d(c), and as a result of Harris/Cox, served to rectify that mistake.
It is clear from a series of Supreme and Appellate Court decisions that a sentence imposed as a result of a violation of probation is a continuation of the original sentence. Tyson v. Commissioner of Correction, 261 Conn. 806, 810 n. 6, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S.Ct. 1914, 155 L.Ed.2d 836 (2003); State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992); State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); Liistro v. Robinson, 170 Conn. 116, 128-29, 365 A.2d 109 (1976); State v. Fuessenich, 50 Conn.App. 187, 191-93, 717 A.2d 801 (1998), cert. denied, 247 Conn. 956, 723 A.2d 818, cert. denied, 527 U.S. 1004, 120 S.Ct. 500, 145 L.Ed. 386 (1999). Upon coming into the department's custody for the Bridgeport and Norwalk VOP charges, petitioner's confinement related back to the original sentence and even the original presentment of the charging document, the information. State v. Carey, supra, 222 Conn. 306; State v. Fuessenich, supra, 50 Conn.App. 187 193. At any time after returning into custody, either prior to petitioner negotiating a plea and sentence or thereafter, the department had the statutory duty to correctly calculate and apply jail credit with General Statutes § 18-98d(c).
In Tyson, the Supreme Court emphasized that department's ". . . determination of which sentence is controlling is not a static concept . . ." and not limited to precise facts at issue in that case. Tyson v. Commissioner of Correction, supra, 261 Conn. 828, and n. 22.
An unstated undercurrent in petitioner's claims is that the department's correction of the jail credit applied to the Norwalk sentence occurred post-sentencing. If the correction had been performed prior to sentencing, petitioner theoretically might have been able to adjust the negotiated sentence accordingly, although any such adjustment is speculative at best. The evidence shows that the department performed the 177-day correction after the Bridgeport and Norwalk VOP sentencings. The correction could have been performed at any time after April 27, 2006, when petitioner returned into custody, and did not necessitate the issuance of a mittimus. Time owed on a sentence by an individual who in error was released prematurely and comes back into custody on the very same sentence is exactly that: time owed on a sentence, regardless of the eventual sentence, if any, imposed for the violation of probation.
In Liistro v. Robinson, supra, 170 Conn. 129, the Supreme Court noted that "[p]robation is granted because the sentencing court is of the opinion that confinement is not necessary for the protection of the public and probation provides a better chance of rehabilitation . . ." The Supreme Court has also indicated that "[r]evocation hearings are not concerned with punishment or retribution. The probation process, in seeking to normalize the probationer into society as soon as reasonably possible, presents the ultimate question whether the probationer is still a `good risk' to be continued in that status . . . This determination involves the consideration of the goals of probation, including whether the probationer's behavior is inimical to his own rehabilitation, as well as to the safety of the public. The ends of probation revocation are thus distinct from the punitive functions of the criminal law and a number of considerations relevant to revocation include factors irrelevant to a criminal prosecution . . . The element of `punishment' in probation revocation . . . is attributable to the crime for which [a defendant] was originally convicted and sentenced. Thus, any sentence this defendant had to serve as the result of the violation of the special condition was `punishment' for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted." (Internal citations omitted.) State v. Smith, supra, CT Page 22021 207 Conn. 177-78.
If a sentence imposed as a result of revocation of probation is a continuation of the original sentence, then a correction, performed in accordance with the statutory duty under § 18-98d(c) to correctly calculate and apply jail credit, that results in a later discharge date assuredly is no less. Petitioner here in error was discharged from the Norwalk sentence 177 days earlier than he should have been released. Had petitioner successfully completed the sentence of probation, he would have received a windfall via the erroneous application of jail credit. Petitioner failed to remain a "good risk" to continue on probation status and returned to custody on the original docket and sentence. The department's correction and removal of the misapplied 177 days does result in a later discharge date, but does not affect the twenty-month sentence for the Norwalk VOP.
The evidence in no way supports the contention that petitioner was promised a specific amount of jail credit or that he was promised a specific release date. Petitioner was promised a twenty-month sentence on the Norwalk VOP. Because that is the sentence petitioner is, in fact, serving for the Norwalk VOP, the claim in count one that there is a violation premised on Santobello must be denied.
COUNT THREE
The third count of the amended petition also raises a due process claim. Here, however, petitioner alleges that the department's retroactive application of the Supreme Court's construction of a criminal statute in Harris and Cox deprives him of his federal and state constitutional rights to due process. Petitioner cites to Bouie v. City of Columbia, 378 U.S. 347 (1964), in support of this due process claim.
As to this claim, petitioner must first demonstrate that the statute at issue, § 18-98d, is a criminal statute. In Harris, the Supreme Court reiterated that presentence confinement credit under § 18-98d is a matter of legislative grace. Harris v. Commissioner of Correction, supra, 271 Conn. 833, citing Hammond v. Commissioner of Correction, 259 Conn. 855, 879, 792 A.2d 774 (2002), and 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). The Harris court also stressed that presentence confinement credit is a ". . . creature of statute and that, as a general rule, such credit is not constitutionally required." Harris v. Commissioner of Correction, supra, 271 Conn. 833, quoting Hammond v. Commissioner of Correction, supra, 259 Conn. 879.
Based on the foregoing, the court concludes that § 18-98d is not a criminal statute. Petitioner's claim in count three, therefore, must fail. The court additionally notes that the United States Supreme Court's holding in Bouie has been summarized as follows: "The underlying principle [of fair notice] is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed . . . [T]he touchstone is whether the statute, either standing alone or as construed made it reasonably clear at the relevant time that the defendant's conduct was criminal . . ." (Internal citation and quotation marks omitted.) State v. Vakilzaden, 272 Conn. 762, 769, 865 A.2d 1155 (2005). Thus, Bouie is not relevant or applicable to the instant matter.
Lastly, the court notes that the Appellate Court very recently, in the context of addressing a separation of powers claim, noted that ". . . the [department], an agent of the executive branch, [by way of its recalculations and corrections performed as a result of the Harris trilogy, has] implemented a policy in accordance with judiciary's interpretation of a statute promulgated by the legislature." Wooten v. Commissioner of Correction, 104 Conn.App. 793, 804 (2007). Given that statutory jail credit is a matter of legislative grace, the department's implementation of a policy in accordance with the Harris trilogy simply cannot trigger a due process violation.
COUNT FOUR
In this count, petitioner avers a double jeopardy claim. Petitioner essentially asserts that the department's removal of 177 days of jail credit from "his already satisfied" Norwalk sentence and, the department "re-opened" his Norwalk sentence. This "re-opening" of a sentence petitioner had discharged from, according to petitioner, resulted in an alteration of the punishment petitioner had already served for the Norwalk sentence. Petitioner additionally alleges that the department's correction also violated his legitimate expectation of finality in 20-month Norwalk VOP sentence. Petitioner relies on State v. Colon, 272 Conn. 106, 293, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct 102, 163 L.Ed.2d 116 (2005), in support of his due process claim.
In Colon, the Supreme Court summarized the protection against double jeopardy as follows: "We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense . . . The Clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent . . . State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002)." State v. Colon, supra, 272 Conn. 293.
Later, in Harris, the Supreme Court noted that "[t]he United States Supreme Court has explained that the fifth amendment guarantee against double jeopardy, applied to the states through the fourteenth amendment, gives rise to three separate constitutional protections. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense . . . With respect to third guarantee, which is the focus of our inquiry, principles of double jeopardy mandate only that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense . . . In other words, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence . . . Connelly v. Commissioner of Correction, 258 Conn. 394, 411, 780 A.2d 903 (2001), quoting North Carolina v. Pearce, supra, 716-19. Besides the fact that the petitioner was not retried and convicted for . . . offenses [at issue], we fail to see how denying him two days of presentence confinement credit for each day served violates the petitioner's double jeopardy rights. The . . . days of presentence confinement at issue in this appeal do not represent `time served' under the . . . sentence [at issue] because the same days previously were counted as `time served' under [a previously imposed] sentence. See Connelly v. Commissioner of Correction, supra, 411. We therefore conclude that the constitutional prohibition against double jeopardy simply is not implicated under the facts of the present case." (Internal citations and quotation marks omitted.) Harris v. Commissioner of Correction, supra, 271 Conn. 842-43.
Similarly, petitioner here is, in effect, seeking to be double credited with 177 days. § 18-98d does not permit such double crediting. Petitioner was not retried and convicted for the original Norwalk offense, but instead was found to have violated the conditions of his probation. As the Supreme Court found in Harris, this court also finds that the department's correction of removing 177 days of jail credit from the Norwalk sentence, days not earned that should never have been credited in the first instance, does not implicate the constitutional prohibition against double jeopardy. The claim in count four must, therefore, also fail.
COUNT FIVE
The final claim before the court is that petitioner's pleas of guilty were not knowingly, intelligently and voluntarily made. Petitioner alleges his conviction and incarceration are illegal because they were obtained based on a fundamental misunderstanding of his sentence, in violation of the due process clause. According to petitioner, he relied on Attorney Reid to adequately explain the terms of the Norwalk VOP sentence to him. Petitioner avers that at the time of plea and sentencing on the Norwalk VOP, he understood his sentence to be twenty months to serve minus any jail credit he accrued on that sentence. The court fails to see how this claim diverges from the claim of ineffective assistance in count two.
Petitioner in count five essentially alleges that Reid's failure to adequately explain the terms of the sentence to him, and that his reliance thereon and his understanding he would serve twenty months for the Norwalk VOP minus applicable jail credit, rendered his plea constitutionally invalid. This claim clearly is a classic claim of ineffective assistance of counsel, which this court has already addressed in count two. The court will, therefore, rely on its previous discussion regarding count two and the conclusions reached thereon (i.e., petitioner's inability to prove the required prejudice under Strickland/Hill) for count five.
The court does note that petitioner did receive, in accordance with § 18-98d and Harris, 78 days of jail credit applied to the Norwalk VOP sentence, representing the time period of April 27, 2006 though July 14, 2006. Petitioner had no reasonable expectation of receiving jail credit in excess of those 78 days. As already addressed above, respondent's initial errant jail credit application inured to petitioner's benefit. Petitioner would have retained that benefit had he not returned into custody on the Norwalk sentence. The department's ongoing duty to correctly calculate the jail credit, in accordance with § 18-98d(c) resulted both in petitioner receiving the 78 days of jail credit on the Norwalk VOP sentence and the removal of the misapplied 177 days on the original sentence.
The court fails to see how the department's actions implicate petitioner's due process rights at sentencing, a sentencing that resulted in petitioner serving precisely twenty months, minus the 78 days of jail credit earned, on the Norwalk VOP sentence. While the department's correction to the original Norwalk sentence requires petitioner to complete a sentence that had not been completed due to the department's misapplication of jail credit, the time petitioner still owed was time owed on the original sentence and has no bearing or impact on the twenty-month Norwalk VOP sentence.
CONCLUSION
Based upon all of the foregoing, judgment enters denying the petition for a writ of habeas corpus. The petitioner shall submit a judgment file within thirty days of this decision.