Lee v. Comm'r of Corr.

173 Conn.App. 379

163 A.3d 702

Dean S. LEE

v.COMMISSIONER OF CORRECTION

AC 38417

Appellate Court of Connecticut.

Argued March 21, 2017

Officially released May 23, 2017

Craig A. Sullivan, assigned counsel, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Sheldon and Blue, Js.

Opinion

BLUE, J.

The petitioner, Dean S. Lee, appeals following 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 certification to appeal and (2) improperly denied his ineffective assistance of counsel claim based on trial counsel's asserted failure to request certain pretrial bond increases. Because the petitioner did not demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

On appeal, the petitioner seeks credit for twenty-seven days of presentence confinement pursuant to General Statutes § 18–98d.¹ The presentence confinement for which he seeks credit occurred while he was confined in lieu of bail for a charge on which he was never sentenced. Instead, he subsequently was sentenced for two distinct crimes that were committed after he had posted bond in the first matter. Under these circumstances, both the relevant statute, § 18–98d, and considerations of public policy prohibit the award of presentence confinement credit that the petitioner seeks.

The following facts and procedural history are relevant to this appeal. On three separate occasions in 2010 and 2011, the petitioner was arraigned in the New Haven judicial district, geographical area number 23, on four different charges.² Here is the chronology of relevant events:

• September 2, 2010. The petitioner was arraigned on a warrant charging him with possession of narcotics with intent to sell. The petitioner was confined in lieu of bond.³ We will refer to this case⁴ as case no. 1.

• September 28, 2010. The petitioner posted bond on case no. 1, having spent twenty-seven days in pretrial confinement. This twenty-seven day period of pretrial confinement turns out to be the cynosure of the case now before us.

• October 23, 2010. The petitioner sold narcotics to an undercover officer. We will refer to the case arising from this incident as case no. 2.

• June 3, 2011. The petitioner was arraigned on case no. 2.⁵ The court, Licari, J. , set bond of $5,000. The petitioner posted bond on the same date.

• July 25, 2011. The petitioner allegedly twice sold narcotics to cooperating witnesses.

We will refer to the cases arising from these incidents as case no. 3 and case no. 4.

• August 8, 2011. The petitioner was arraigned on case no. 3⁶ and case no. 4.⁷ The court, Frechette, J. , set bond of $100,000 in each case. At the arraignment, the petitioner's trial attorneys did not request bond increases in cases nos. 1 and 2. The petitioner was confined in lieu of bond.

• November 21, 2011. The petitioner pleaded guilty in cases nos. 2 and 3 to two counts of possession of narcotics with intent to sell in violation of General Statutes § 21a–277(a). The court, Holden, J. , sentenced him in each case to ten years incarceration, execution suspended after five years, followed by a conditional discharge for three years. The sentences were to be served concurrently. The total effective sentence, therefore, was ten years, execution suspended after five years, followed by a conditional discharge for three years. Imposition of the sentence was stayed until January 5, 2012. At sentencing, the petitioner requested that the court order presentence confinement credit for the confinement spent in case no. 1. In response, the court stated that, "[h]e's entitled to the credit afforded by the Department of [Correction]."

• January 5, 2012. The stay was lifted on the sentences imposed in cases nos. 2 and 3. The prosecutor entered a nolle prosequi with respect to cases nos. 1 and 4 as well as an unrelated earlier charge.

• July 22, 2013. The court granted a motion for "jail credit" in case no. 2 and ordered credit from August 8, 2011 to October 6, 2011.

• September 12, 2013. The court granted a motion for "jail credit" in case no. 3 and ordered credit from August 8, 2011 to January 5, 2012.

On July 26, 2012, the petitioner, initially self-represented, filed an application for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. His amended petition, filed by appointed counsel, claimed that his trial counsel had been ineffective because "she failed to ensure that the petitioner would receive presentence jail credit for the time he spent incarcerated on all of his pending cases." The amended petition requested that the judgments imposed in cases nos. 2 and 3 be vacated, that the petitioner be released from confinement, and that the court grant "whatever other relief that law and justice require."

The petition was tried to the habeas court, Fuger, J. On August 13, 2015, the habeas court denied relief. It stated that, "[t]here is no sentence of any court anywhere to which those twenty-seven days of jail credit can be applied." The habeas court further reasoned that, "even if it was deficient performance not to request an increase in bond [in cases nos. 1 and 2], there is no prejudice that accrued to [the petitioner] because he did, in fact, receive the jail credit he would have received had the bond been raised in both files on August 8, 2011." On September 11, 2015, the habeas court subsequently denied a petition for certification to appeal. An appeal to this court followed.

At oral argument before this court, the petitioner made it clear that he was no longer seeking to vacate any of his convictions or sentences. The sole remedy he seeks is a judicial order that twenty-seven days of pretrial confinement credit, served with respect to case no. 1, be applied to the sentences imposed on cases nos. 2 and 3. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus with respect to his claim of ineffective assistance of counsel. Specifically, he argues that because this issue is debatable among jurists of reason, a court could resolve the issues differently or the issues should proceed further, the habeas court abused its discretion in denying his petition for certification to appeal. We disagree.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... 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 [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Internal quotation marks omitted.)

Duncan v. Commissioner of Correction , 171 Conn.App. 635, 644–45, 157 A.3d 1169 2017). With these principles in mind, we turn to the substantive claims of the petitioner.

The petitioner claims that the habeas court improperly concluded that, even if his trial counsel provided deficient performance in not seeking bond increases on cases nos. 1 and 2 at his August 8, 2011 arraignment, he was not prejudiced as a result. With respect to the issue of prejudice, we conclude that the petitioner's argument is unavailing and, therefore, his claim of ineffective assistance of counsel must fail. As a result, we conclude that the habeas court did not abuse its discretion in denying the petitioner's certification to appeal from the denial of the petition for habeas corpus. See Duncan v. Commissioner of Correction , supra, 171 Conn.App. at 635, 157 A.3d 1169 (reviewing court considered merits of petitioner's claims as to performance and prejudice and concluded that because there was no prejudice, petitioner could not establish abuse of discretion in denial of certification to appeal).

The question of whether a petitioner's constitutional right to the effective assistance of counsel has been violated is governed by a familiar test. 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). The petitioner has the burden to establish that "(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the...