Opinion
No. CV 07 4001576S
July 2, 2009
MEMORANDUM OF DECISION
The petitioner, Jason Leachman, filed a petition for a writ of habeas corpus on February 13, 2007, challenging the legality of his detention and the calculation of his jail credit. He faced a variety of charges spanning three dockets. On October 26, 2006 the petitioner pleaded guilty in Docket No. CR 06 0233552 to possession of narcotics with intent to sell in violation of General Statutes § 21a-277a and criminal possession of a firearm in violation of General Statutes § 53a-217; he also admitted to a violation of probation in Docket No. CR 02 0214047 in violation of General Statutes § 53a-32. On November 9, 2006, he pleaded guilty in Docket No. CR 06 0226687 to assault in the second degree in violation of General Statutes § 53a-60 in the judicial district of New Britain. The latter case was transferred to New Haven, and the petitioner was sentenced on all three dockets on November 28, 2006 by the court, Blawie, J., to seven years incarceration suspended after thirty months on the marijuana charge plus five years probation, five years suspended after thirty months plus five years probation, with twenty-four months being a mandatory minimum, on the weapon charge, to be served consecutively, and five years, to be served concurrently with the previous two sentences, on the assault charge. The court terminated the petitioner's probation without imposing a sentence.
In an amended petition filed July 23, 2008, the petitioner alleged, in three counts, that (1) his jail credit was improperly calculated by the department of corrections and he is owed 198 days of credit on his assault sentence; (2) the controlling offense is improperly identified as the assault offense, when in fact the drug offense should be controlling; and (3) his trial counsel, attorney Michael Richards, was ineffective in that he failed to properly investigate the case and discover exculpatory information.
In a return filed September 23, 2008, the respondent denied that the petitioner received ineffective assistance of counsel, left him to his proof on his claim that the controlling sentence was incorrectly identified and disputed the material dates of the petitioner's arrest and posting of bond in the case bearing docket number-6628.
The matter came before the court for a trial on the merits on February 24, 2009. The petitioner filed a second amended petition in court, but the court, after discussion on the record, took it as a stipulation to the dates as listed in the respondent's return, ¶¶ 10-11, rather than accepting it as an amended petition. Both parties submitted exhibits, including transcripts of the petitioner's various plea hearings and sentencing, a lease for the rental of 80 Hanover St., Meriden, a notice to quit the same premises, and a letter written by Matthew Burch admitting to the possession of the drugs and gun seized by the police at the petitioner's arrest. Testimony was heard from the petitioner, Matthew Burch, Irene Rivera, the petitioner's ex-girlfriend, Joanne Leboeuf, a records specialist at Walker Correctional, and attorney Richards.
FINDINGS OF FACT
The parties agree to the following facts. The petitioner was arrested on February 25, 2006 and charged with assault in the second degree. He was released on bond immediately. Shortly thereafter, on March 23, 2006, he was arrested at 80 Hanover St., Meriden, and charged with, inter alia, possession of marijuana with intent to sell and criminal possession of a weapon. He was held in lieu of bond on these charges up until the date he was sentenced, November 28, 2006. On July 31, 2006, bond was reinstated in the assault case, docket no.-6687, and he was held in lieu of bond until September 20, 2006, when he again posted bond. He remained incarcerated, however, on the charges pending in docket no.-3552. On November 28, 2006 he was sentenced in both dockets. Thus, he was credited with 52 days of presentence confinement credit in docket no.-6687, reflecting the time incarcerated between July 31 and September 20, 2006. On docket no.-3552, he received 251 days of credit, reflecting time incarcerated between March 23, 2006 and November 28, 2006.
The court finds the following additional facts. The petitioner was, at the time of both arrests, on probation arising from convictions for assault in the second degree and robbery in the second degree, for which he was sentenced to a total effective sentence of ten years incarceration suspended after thirty months plus four years probation. An arrest warrant based on a violation of his probation was issued on April 6, 2006, on the multiple grounds that the petitioner violated various laws, failed to report as scheduled, operated a motor vehicle, with a suspended license, failed to submit to drug testing, and failed to attend substance abuse treatment.
On March 23, 2006, the police executed a search and seizure warrant for the residence at 80 Hanover St., apartment 711, and the petitioner's person. Cocaine residue was found on a table in the apartment, along with bags of marijuana and a shotgun with the serial numbers filed off. The petitioner was in the apartment, along with Burch, Rivera, Noel Lopez and a girl the petitioner knew only as Stephanie. Nothing was found on the person of the petitioner, but the police had previously made several controlled buys from the petitioner at that residence. The police also found "proof of residence" but it is unclear what constituted that proof.
The petitioner was not a signatory to the lease agreement for the apartment, which was only signed by Michael McDavid and Natasha Monroe as tenants; the petitioner was listed on a notice to quit served on or about May 5, 2006, on the ground that he never had a right or privilege to occupy the apartment. The petitioner had been receiving mail at the apartment for several months.
The petitioner was represented in the New Britain case, docket no.-6887, by attorney Robert Mckay. That charge, however, was transferred to New Haven for sentencing after he pleaded guilty so that the petitioner could achieve a global disposition of all the charges pending against him. Prior to pleading guilty, however, the petitioner posted bond on the New Britain case on September 20, 2006 because Mr. Mckay had told him that his charges in Meriden had "been disposed of."
Matthew Burch had told police that the shotgun and drugs found in the apartment were his, and written a letter to Mr. Mckay informing him of the same. Mr. Richards knew of the letter, but made the tactical decision not to investigate further because he feared that Burch would recant or in some other way cast doubt on the truth of his statement and letter, and felt that the fact of the statement and letter could be used to negotiate a favorable plea deal for the petitioner. Mr. Richards viewed the violation of probation as a "ticking time bomb" for the petitioner because the standard of proof is lower than in a criminal case and they are typically not difficult for the state to prove; the petitioner faced seven and a half years on the probation violation, representing the balance of his sentence from docket no. CR 02 0214047. Moreover, the petitioner also faced further narcotics charges arising from the controlled sales to a confidential informant. Between the narcotics charges, the gun charge, the assault charge and the violation of probation, the petitioner was exposed to a rather lengthy sentence; even if the possession with intent and gun charges could have been successfully defended, the petitioner still faced a potential sentence of twelve and a half years on the assault and violation of probation, with much more if the state pursued the prior sale charges.
Mr. Richards negotiated the petitioner's plea deal, but withdrew and was replaced by attorney Omar Williams for sentencing because of the potential conflict created by the petitioner's filing of a grievance against Mr. Richards. The court sentenced the petitioner in accordance with the plea agreement, and terminated the violation of probation entirely, which Mr. Richards acknowledged was "a gift." The petitioner was properly canvassed before pleading guilty to all charges, and did so knowingly and voluntarily.
Additional facts will be discussed as necessary.
DISCUSSION
The petitioner's first claim is that he was incorrectly credited with only 52 days of time on the assault conviction, docket no.-6687. However, at the habeas trial, it became clear that the petitioner was not challenging the department of correction's calculation of the time, as he conceded that the relevant statutes and case law would not mandate that he be credited in-6687, on which he had posted a bond, for time served under-3552. Rather, he contends that his understanding what the full period of incarceration would be credited on both dockets, and that as a matter of equity, the court should order that the mittimus be modified to reflect the full credit. In support, he points to a statement made by state's attorney Strollo at the plea hearing that "there shouldn't be any credit problems [in docket no. 6887] since this case . . . predates the other cases."
The petitioner's argument suffers from two fatal flaws. First, as the respondent pointed out at trial, this claim is simply not in the petition; the allegation was simply that the petitioner was being credited with 52 days when he should have received 250 days, leaving 198 days owed the petitioner. There is no claim that the plea agreement was violated, or that, had the petitioner known he would not be entitled to the full 250 days of credit, he would not have pleaded guilty. "The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . The principle that a plaintiff may rely only upon what he has alleged is basic . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . Therefore, [w]hile the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violation . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised." (Citations omitted; internal quotation marks omitted.) Cole v. Commissioner of Correction, 102 Conn.App. 595, 599-600, 925 A.2d 1231, cert. denied, 284 Conn. 924, 933 A.2d 723 (2007) (reversing grant of habeas relief because claim not included in petition); see also Ankerman v. Commissioner of Correction, 104 Conn.App. 649, 653 n. 3, 935 A.2d 208 (2007), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008); Oliphant v. Commissioner of Correction, 80 Conn.App. 613, 618, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004). Count one of the petition here frames the issue as one of improper presentence confinement credit calculation, not of violation of the plea agreement. The petitioner conceded at trial that his presentence confinement credit was not calculated incorrectly, and there is no basis for relief on this ground.
Secondly, to whatever extent the petitioner can be seen to have raised a claim under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that the sentence imposed did not comport with his plea agreement, the claim is procedurally defaulted because he did not raise it at the trial level or on direct appeal. While a habeas corpus petition is an appropriate vehicle for raising a claim of improper presentence confinement credit calculation; Carmona v. Warden, 104 Conn.App. 828, 832-33, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008); the petitioner's claim in the present case is more in line with a Santobello claim, as he is not challenging the accuracy of the department of correction's credit calculation, nor its compliance with the relevant statute, but is making an equitable argument that his expectations and the intentions of both himself and the prosecution were that he would receive credit on all cases for the full time he was incarcerated. Cf. Zabian v. Commissioner of Correction, 115 Conn.App. 144, 150-51 (2009) (construing "Motion to Revise the [Petitioner's] Sentence to be Consistent with Plea Agreement" as a claim of illegal sentence under Santobello). This claim is more appropriately raised in the criminal trial court or on direct appeal. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 740-41, 937 A.2d 656 (2007); Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). Moreover, recent Appellate authority indicates that an unfavorable decision at the trial court must be appealed before habeas relief is appropriate, if at all. Zabian v. Commissioner of Correction, supra, 151-52. This claim, therefore, is procedurally defaulted from being raised in this court.
Although the court does not reach the merits of the petitioner's claim, it does note that there is no evidence of an express promise that the petitioner be credited the full time incarcerated on the-6687 sentence and nothing indicating even an implied promise other than Mr. Strollo's decidedly equivocal statement reproduced above.
The petitioner's next claim is that the respondent incorrectly identified his sentence for the assault conviction as the controlling sentence, when it should have been the sentence for possession with intent to sell. When multiple sentences are imposed concurrently, "the terms merge in and are satisfied by discharge of the term which has the longest term to run . . ."; when imposed consecutively, "the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term." General Statutes § 53a-38(b). Thus, the petitioner's sentence in-3552 comprised five years incarceration, as did the sentence in-6687. The department correctly determined that-6687 was the controlling sentence because it called for a longer period of incarceration than the total combined sentence imposed in-3552, with which it ran concurrently, particularly because the petitioner had more presentence confinement credit in-3552. "[T]he determination of which sentence is controlling is not a static concept" but may change based on factors such as good time or presentence confinement credit. Tyson v. Commissioner of Correction, 261 Conn. 806, 827-28, 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). In addition, Laboeuf testified that, even if the sentence in-3552 were identified as the controlling sentence, the petitioner would still not be eligible for parole until having served eighty-five percent of his total effective sentence anyway, and this court could afford little practical relief to the petitioner even if the respondent had misapprehended the controlling sentence. This claim, therefore, must fail.
The petitioner's final claim is that Mr. Richards rendered ineffective assistance in that he failed to conduct a thorough investigation, which would have led to the discovery of exculpatory evidence on the possession with intent and gun charges. "A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
"[U]nder the test in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008). Furthermore, Hill requires that a petitioner show he would have been "successful at trial"; "'[s]uccessful at trial' means a more favorable outcome than that achieved in the pleading process. See Copas v. Commissioner of Correction, 234 Conn. 139, 157 n. 10, 662 A.2d 718 (1995)." Brandy v. Commissioner of Correction, 89 Conn.App. 387, 393 n. 5, 873 A.2d 1061 (2005).
In the present case, the only arguably exculpatory evidence the petitioner adduced was the letter and testimony of Burch that the drugs and gun found in the Hanover Street apartment were his. While this certainly is exculpatory, it is by no means conclusive or dispositive of the petitioner's innocence of the charges. More importantly, there is no indication that Mr. Richards was deficient in not investigating this evidence. To the contrary, he made a reasonable tactical decision in that he felt the existence of the letter and possible testimony were more beneficial to the petitioner in themselves, rather than as the starting point for investigation. Had he interviewed Burch or pushed the issue further, the petitioner faced the risk that Burch might retract his statement or otherwise give rise to facts that might cast doubt on Burch's credibility. Burch's statement and letter were expressly used by Mr. Richards in negotiations with the state, and risking the retraction of this evidence would not have benefited but could potentially have hurt the petitioner. This was not unreasonable, particularly since, had the petitioner not accepted the plea offer and instead gone to trial, Mr. Richards could very well have pursued those lines of investigation without losing anything from the delay. "Judicial scrutiny of counsel's performance must be highly deferential . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009). Here, the petitioner has failed to demonstrate that Mr. Richards performed deficiently.
Moreover, he has failed to demonstrate that he was prejudiced by Mr. Richards' acts or omissions, even if deficient performance were to be presumed. He has not testified that, had Mr. Richards further investigated Burch's statement, he would not have pleaded guilty but, instead, insisted on going to trial. Indeed, it is unclear what there was to be gained by further investigation; the petitioner has failed to indicate how it would have influenced his decision to plead differently. And, finally, the petitioner was not likely to have been successful at trial had he not taken the pleas. Although he had a legitimate defense to the gun and drug charges, it was not certain that he would have been successful. Moreover, even assuming acquittal on the aforementioned charges, the petitioner still faced twelve and a half years on the violation of probation and assault charges, for both of which convictions were likely, with an even longer probable sentence if the prior drug sale charges were pursued. The petitioner's plea bargain disposed of all of these. Thus, it is not likely that he would have been more successful at trial even if Mr. Richards conducted the investigation urged by the petitioner, and he has failed to demonstrate prejudice.
CONCLUSION
The petitioner has failed to meet his burden and, therefore, his petition is denied. Should the petitioner wish to appeal, counsel shall submit a judgment file to the court within thirty days.