Bagalloo v. Comm'r of Corr.

195 Conn.App. 528

225 A.3d 1226

Gifton G. BAGALLOO

v.COMMISSIONER OF CORRECTION

AC 41765

Appellate Court of Connecticut.

Argued October 23, 2019

Officially released February 4, 2020

Judie Marshall, for the appellant (petitioner).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were John C. Smriga and Matthew C. Gedansky, state's attorneys, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Keller and Bright, Js.

DiPENTIMA, C.J.

The petitioner, Gifton G. Bagalloo, appeals after the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus in which he alleged, inter alia, that his trial counsel provided ineffective assistance when the petitioner entered into a plea agreement. Because the petitioner has failed to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

In its memorandum of decision, the habeas court set forth the following relevant facts and procedural history. "On November 10, 2008, the [trial] court sentenced the petitioner to seven years [of] imprisonment, execution suspended after three years, and three years [of] probation for a narcotics offense and a violation of probation. While serving that sentence, the police, on March 31, 2009, arrested the petitioner for conspiracy to commit murder ... [to which he pleaded guilty], and [he] received a sixteen year sentence on December 10, 2013.

* * *

"The three year sentence terminated on September [9], 2011. Under General Statutes § 18-98d (a) (1) (B),¹ the petitioner only received pretrial jail credit toward the sixteen year sentence beginning after that date. This was so because previous to that date he was confined as a sentenced prisoner. Lee v. Commissioner of Correction , 173 Conn. App. 379, 385–86, [163 A.3d 702, cert. denied, 326 Conn. 924, 169 A.3d 233] (2017). In short, although held in custody on the homicide case, in lieu of bond, since March 31, 2009, the calculation set forth in § 18-98d (a) (1) (B) disallowed jail credit as long as the earlier, three year sentence continued to run. The petitioner has received pretrial jail credit for confinement from September 10, 2011, to December 10, 2013." (Citations omitted; emphasis in original; footnote added.)

On or about April 21, 2014, the petitioner filed a motion to withdraw his guilty plea. In the motion, the self-represented petitioner argued that his plea was not knowing and voluntary because he was not advised adequately by his trial counsel, John Walkley, about the length of his sentence and the amount of jail credit he would receive from his pretrial confinement. On June 23, 2014, the trial court denied the motion. In denying the motion, the court found that because the presentence jail credit was never part of the plea agreement, the court did not have to ensure that the petitioner was aware of the impact of § 18-98d (a) (1) (B) on the plea agreement or that he would be serving "dead time."² The petitioner did not appeal from the denial of this motion.

On December 19, 2014, the self-represented petitioner filed a petition for a writ of habeas corpus. On May 1, 2017, the petitioner, represented by counsel, filed an amended petition. In his amended petition, the petitioner alleged that (1) Walkley rendered ineffective assistance by failing to inform him adequately about his ineligibility for jail credit and by failing to request that the sentencing judge award him jail credit, and (2) his guilty plea was not knowingly, intelligently and voluntarily given because he was not informed properly about the length of his sentence. On August 10, 2017, the respondent, the Commissioner of Correction, filed a return in response, claiming that the petitioner's petition was procedurally defaulted because he failed to appeal the trial court's denial of his motion to withdraw his guilty plea. See Practice Book § 23-30 (b). The habeas court conducted a trial, during which the petitioner and Walkley testified.

On April 30, 2018, the habeas court issued a memorandum of decision in which it denied the petition for habeas corpus relief. The habeas court found that the petitioner failed to satisfy the "good cause and prejudice" standard to overcome the procedural default for failing to appeal from the trial court's denial of his motion to withdraw his guilty plea. The habeas court also determined that the petitioner's trial counsel had not rendered ineffective assistance and that he informed the petitioner adequately about the length of his sentence.

Thereafter, the petitioner filed a petition for certification to appeal from the habeas court's judgment. The petitioner sought to raise two issues on appeal: (1) whether the court erred in finding that the petitioner failed to show cause sufficient to overcome procedural default for his claim that his guilty plea was not knowing, intelligent and voluntary,³ and (2) whether the court erred in finding that the petitioner failed to prove ineffective assistance of counsel. The habeas court denied the petition. This appeal followed.

On appeal, the petitioner argues that the habeas court (1) abused its discretion in denying the petitioner's request for certification to appeal, and (2) erred in denying the petitioner's claim that his trial counsel rendered ineffective assistance. We disagree.

We first set forth the standard of review relevant to our resolution of this appeal. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and applicable legal principles....

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed. ...

"We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary....

"In Strickland v. Washington [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ] the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary process that renders the result unreliable.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong....

"To satisfy the performance prong [of the Strickland test] the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... [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." (Citations omitted; internal quotation marks omitted.) Coward v. Commissioner of Correction , 143 Conn. App. 789, 794–96, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).

Accordingly, in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner's underlying claims that trial counsel provided ineffective assistance. With the foregoing principles in mind, we now address the petitioner's claims.

I

The petitioner first claims that his trial counsel was ineffective because he failed to inform the petitioner about the length of his sentence before entering into the plea agreement. Specifically, the petitioner argues that Walkley did not communicate that the petitioner would not receive credit for the time he spent in presentence confinement from March 31, 2009, to September 9, 2011. The petitioner further argues that had he known that he would not receive credit for the 893 days he spent in...