Gonzalez v. Comm'r of Corr.

308 Conn. 463

68 A.3d 624

Odilio GONZALEZ

v.COMMISSIONER OF CORRECTION.

No. 18688.

Supreme Court of Connecticut.

Argued May 17, 2012.

Decided May 14, 2013.

Michael E. O'Hare, supervisory assistant state's attorney, for the appellant (respondent).

Robert J. McKay, special public defender, for the appellee (petitioner).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

EVELEIGH, J.

The respondent, the commissioner of correction, appeals from the judgment of the Appellate Court, affirming the judgment of the habeas court, which had granted the second amended petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez. Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 707, 1 A.3d 170 (2010). The Appellate Court concluded that the petitioner had a right to counsel at the arraignment stage, which included proceedings pertaining to the setting of bond and the calculation of presentence confinement credit, and that the petitioner's trial counsel had been ineffective in his failure to request an increase in bond on two prior charges so that the petitioner could be credited for presentence confinement on those charges. Id., at 713, 717, 1 A.3d 170. We granted the respondent's petition for certification to appeal limited to the following issues: “1. Whether the Appellate Court properly ruled that the sixth amendment confers a right to the effective assistance of counsel in matters pertaining to credit for presentence confinement? 2. Whether the Appellate Court properly ruled that the petitioner met his burden of showing deficient performance and prejudice within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)?” Gonzalez v. Commissioner of Correction, 298 Conn. 918, 919, 4 A.3d 1226 (2010).¹ We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The petitioner was arrested on April 21, 2006, docket number CR–06–0599898–S, and charged with threatening in the second degree in violation of General Statutes § 53a–62 (first arrest). He was released later that same day on a $500 nonsurety bond. On May 31, 2006, the petitioner was arrested again and charged with breach of the peace in the second degree in violation of General Statutes § 53a–181 and criminal violation of a protective order in violation of General Statutes § 53a–223, docket number CR–06–0600923–S (second arrest). The petitioner was arraigned the following day, and the court set bond in the amount of $35,000. He remained in custody until the court reduced his bond on June 16, 2006, to a promise to appear. On January 12, 2007, the petitioner was arrested for a third time, docket number CR–07–0607605–S, and charged with criminal violation of a protective order in violation of § 53a–223 and harassment in the second degree in violation of General Statutes § 53a–183. He was arraigned, with his counsel present, on January 16, 2007, at which time the court set bond in the amount of $65,000 on his January 12, 2007 arrest, and the petitioner remained in custody, unable to post bond (third arrest).

“The petitioner's counsel, who represented the petitioner in all three matters, requested, on March 30, 2007, that the bonds in connection with the petitioner's first two arrests be increased so that the petitioner could receive presentence confinement credit for those arrests.² The court, Ward, J., ordered that the petitioner's bonds resulting from the first two arrests be increased. On May 21, 2007, the petitioner, pursuant to a plea agreement, pleaded guilty to one count of violation of a protective order, arising out of the second arrest, and one count of threatening in the second degree, arising out of the first arrest. All other charges against him were nolled. The court, White, J., sentenced the petitioner on June 11, 2007, to five years incarceration, execution suspended after one year, followed by three years probation for violation of a protective order to be served concurrently with one year of incarceration for threatening in the second degree. At no time did counsel request that the petitioner receive presentence confinement credit for the seventy-three day period between January 16 and March 30, 2007, for one of his first two arrests.

“On January 7, 2008, the petitioner filed his second amended petition for a writ of habeas corpus, claiming that counsel was ineffective in failing to request that the petitioner's bond be increased prior to March 30, 2007, and by not asking the court at any time following March 30, 2007, to credit the petitioner with seventy-three days of presentence confinement credit. He argued that had counsel asked for the bond increase on January 16, 2007, or asked that the petitioner be credited with the seventy-three days of presentence confinement credit, the petitioner would have discharged his sentence seventy-three days earlier than calculated. Following a trial, the habeas court, Schuman, J., found that the petitioner met his burden of proving that counsel's performance was deficient and ordered the respondent to credit the petitioner with seventy-three days of presentence confinement credit. ³The habeas court granted the respondent's petition for certification to appeal, and [the respondent appealed to the Appellate Court].” Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. at 707–709, 1 A.3d 170.

The Appellate Court, in a divided opinion,⁴ concluded that “the petitioner had a sixth amendment right to be represented by counsel at his ... arraignment. He was represented by counsel at that arraignment. Because he had a right to counsel and was represented by counsel, the petitioner had a sixth amendment guarantee to the effective assistance of counsel.” Id., at 713, 1 A.3d 170. In reaching its conclusion, the Appellate Court determined that “[t]he habeas court correctly determined that a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner's third arraignment, not two and one-half months later. No evidence to the contrary was presented at the habeas trial. Counsel's conduct fell below an objective level of reasonableness, as it was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law.” Id., at 716, 1 A.3d 170. The Appellate Court further concluded as follows: “There can be no dispute that counsel's failure to request that the bonds be raised at the third arraignment prejudiced the petitioner by exposing him to seventy-three additional days in jail for which he received no credit. This being the case, the petitioner has satisfied his burden of proving that he was prejudiced by counsel's representation.” Id., at 717, 1 A.3d 170. Additional facts and procedural history will be supplied as necessary.

I

On appeal to this court, the respondent first claims that the Appellate Court improperly affirmed the habeas court's grant of the petitioner's petition for a writ of habeas corpus on the ground that the petitioner was denied the effective assistance of counsel. Specifically, the respondent asserts that the Appellate Court improperly concluded that the petitioner had a sixth amendment right to the effective assistance of counsel for a matter pertaining to presentence confinement because the calculation of presentence confinement credit is not a critical stage of the criminal proceedings. In response, the petitioner asserts that the Appellate Court properly affirmed the habeas court's grant of his petition for a writ of habeas corpus because he had a sixth amendment right to effective assistance of counsel at his arraignment where the presentence confinement issues arose. We agree with the petitioner.

We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991); see also Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011) (“[W]hether the representation a defendant received ... was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” [Internal quotation marks omitted.] ).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [supra, 466 U.S. at 686, 104 S.Ct. 2052]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... 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.... Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164...