Washington v. Comm'r of Corr.

166 Conn.App. 331

141 A.3d 956

Ikeem WASHINGTON

v.COMMISSIONER OF CORRECTION.

No. 37420.

Appellate Court of Connecticut.

Argued April 13, 2016.

Decided June 21, 2016.

John C. Drapp III, assigned counsel, with whom, on the brief, was James R. Fraguela, assigned counsel, for the appellant (petitioner).

Timothy F. Costello, 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).

LAVINE, ALVORD and SHELDON, Js.

PER CURIAM.

The petitioner, Ikeem Washington, appeals following the habeas court's denial of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) erred in concluding that he failed to demonstrate that his trial counsel's performance was deficient and that he was not prejudiced by the representation of his trial counsel. We dismiss the appeal.

In his amended petition for a writ of habeas corpus, the petitioner alleged, in relevant part, that Attorneys David Egan and Richard Marquette provided him with ineffective assistance of trial counsel in that they failed to advise him of the legal and liberty ramifications of accepting or rejecting a certain plea offer from the state under General Statutes § 18–98 and our Supreme Court's holdings in 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, Hunter, Cox trilogy), which control the application of presentence confinement credit.¹ As a result of counsel's alleged deficient representation, the petitioner claimed that he received only forty-four days of presentence confinement credit on the sentence imposed on him in the judicial district of New Haven in May, 2012, rather than 279 days of presentence confinement credit.² Following a trial on November 6, 2014,³ the habeas court, Fuger, J., found that Marquette's representation of the petitioner was not deficient and that the reason the petitioner lost 279 days of presentence confinement credit was his unconditional rejection of the state's initial plea offer.

The record discloses the following facts and procedural history. On December 21, 2010, the petitioner was released from incarceration and began the probationary period of the four concurrent sentences he was serving.⁴ One of those sentences had been imposed in the judicial district of Ansonia–Milford and the other three had been imposed in the judicial district of New Haven. On April 19, 2011, while he was on probation, the petitioner attempted to rob a Q–Mart convenience store in Wallingford. The store clerk not only foiled the petitioner's robbery attempt, but also provided the police with information about the vehicle in which the petitioner left the scene. A state trooper observed the vehicle on Interstate 91 and followed it into New Haven, where the trooper initiated a traffic stop that eventually led to the petitioner's arrest.

As a result of the attempted robbery, the petitioner was charged with crimes in both the judicial district of New Haven and the judicial district of Ansonia–Milford. The charges related to the attempted robbery were filed in New Haven,⁵ along with three charges of violation of probation (New Haven charges). The petitioner appeared in court in New Haven on April 20, 2011, at which time Attorney Cheryl Heffernan was appointed to represent him. The petitioner was unable to post bond and, therefore, was held in pretrial detention from April 20, 2011, until June 2, 2011, for a total of forty-four days.

On June 3, 2011, also as a result of the attempted robbery, the petitioner was arrested and charged with violation of probation of the prior Milford sentence (violation of probation). Egan was appointed to represent the petitioner on that charge. The petitioner again was unable to post bond and was confined from that date until he was sentenced for violation of probation on March 8, 2012, for a total of 279 days. Thus, the petitioner was being held in pretrial detention simultaneously on the New Haven charges and the violation of probation charge.

On December 1, 2011, the petitioner appeared with Heffernan in New Haven. The petitioner rejected a “global” settlement plea agreement offered by the state,⁶ which would have resolved the Wallingford attempted robbery charges and the three violation of probation charges pending against him in New Haven. The court, Fasano, J., was aware of the Milford violation of probation charge and stated that once “the matter is assigned to a trial prosecutor in Milford, they can work out in Milford which would go first.” Judge Fasano continued the New Haven charges until December 20, 2011. Heffernan then informed Judge Fasano that the petitioner was dissatisfied with her representation and had filed a motion to remove her as his counsel, as well as a grievance against her. At the petitioner's request, Judge Fasano appointed Marquette to represent him in Heffernan's stead.⁷

The petitioner appeared with Egan in Milford on January 30, 2012. The state made a plea offer of seven years to resolve the violation of probation charge. The petitioner initially rejected the offer,⁸ but following a discussion with the court, Arnold, J., and Egan, the petitioner decided to accept the plea offer. Before Judge Arnold accepted the petitioner's guilty plea, the court explained that it would stay the imposition of sentencing until the petitioner was able to resolve the New Haven charges so that the petitioner could serve his sentences concurrently.⁹ The petitioner informed Judge Arnold that he had new counsel in New Haven and that the case could go on for another three months. Judge Arnold stated that he would not schedule sentencing before the petitioner's next court date in New Haven in order to give the petitioner an opportunity to negotiate a settlement. The petitioner was next to appear in New Haven on March 2, 2012. Judge Arnold, therefore, stayed sentencing of the violation of probation charge until March 8, 2012. In doing so, the court stated to the petitioner: “So understand, sir, that if you're able to work out something in New Haven on or before the date, I am going to continue this to, which is March eighth ... if on March eighth we find out you have worked out an agreement in New Haven, but the sentencing in New Haven would be at a later date, then I will continue to continue this case so that both sentences would go into effect on the same date so that they would run concurrent, understand?” The petitioner stated: “Understand.”

The court further stated: “Now, if I accept your admission today, you understand you can't change your mind at a later date, all right. I told you I will go along with what I can to get a resolution of your New Haven case. But if you don't make a resolution of the New Haven case, then this sentence will go into effect certainly March eighth.... But if you have an agreement in the New Haven case, I will wait until that agreement is being sentenced so this can run concurrent. Do you understand that?” The petitioner stated: “Yes.”

After Judge Arnold accepted the petitioner's guilty plea, he stated to the petitioner: “So once again, Mr. Washington, I am going to sentence you now, but I am going to stay that sentencing, meaning it is not going to go into effect. The earliest date that it will go into effect is March eighth, if there is no agreement, and we know it. It can get continued from March eighth, number one, if you have an agreement in New Haven and then we'll find out when New Haven is going to sentence you.... [B]ut if I have been told on March eighth that there is no agreement, it's been turned down, and it's a dead deal in New Haven, this sentence will go into effect on March eighth, okay?”¹⁰

On March 2, 2012, the petitioner appeared in New Haven where he rejected the state's plea offer. Judge Fasano assigned the petitioner's case to the trial list.

When the petitioner returned to court in Milford on March 8, 2012, Egan asked Judge Arnold for a further continuance of the imposition of the petitioner's sentence. Judge Arnold declined the request. The petitioner protested that Marquette had only been on the case for a few months and that he needed more time to work out a plea agreement of “ten [years] suspended after seven....” Judge Arnold noted that was much more favorable than the offer the state made in December, 2011, an offer of twenty years in prison suspended after twelve. Egan protested the court's refusal to continue sentencing, noting that the petitioner's presentence confinement time would be credited to the Milford sentence, not the New Haven sentence. Judge Arnold stated that the petitioner would have to make a request to have the presentence time apply in New Haven. The court then lifted the sentencing stay.

Thereafter jury selection began on the New Haven charges. On April 19, 2012, the petitioner appeared before Judge Fasano. At that time, the state withdrew its plea offer of twenty years to serve, suspended after twelve years. The petitioner's case was scheduled to begin trial on May 1, 2012. On April 30, 2012, the petitioner appeared in court to accept a new plea offer calling for fourteen years of incarceration to be served concurrent to the sentence imposed in Milford. During his plea canvass, the petitioner stated that the New Haven sentence would be served concurrent with the Milford sentence and that he would receive presentence confinement credit on his New Haven sentence. The court, Clifford, J., stated that there was no agreement as to the allocation of presentence confinement credit. Marquette asked if the state would entertain an agreement as to the presentence...