Crawford v. Commissioner of Correction

• Citation: 982 A.2d 620,294 Conn. 165
• Decision Date: 24 November 2009
• Docket Number: No. 18315.,18315.
• Court: Supreme Court of Connecticut
• Parties: Stephen A. CRAWFORD v. COMMISSIONER OF CORRECTION.

982 A.2d 620

294 Conn. 165

Stephen A. CRAWFORD v. COMMISSIONER OF CORRECTION.

No. 18315.

Supreme Court of Connecticut.

Argued September 11, 2009.

Decided November 24, 2009.

Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

Timothy F. Costello, deputy assistant state's attorney, with whom were Ann E. Lynch, assistant attorney general, and, on the brief, David Shepack, state's attorney, and David Carlucci, deputy assistant state's attorney, for the appellee (respondent).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

KATZ, J.

The petitioner, Stephen A. Crawford, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly found that he had procedurally defaulted with regard to his claims challenging the sufficiency of his plea canvass and the state's breach of his plea agreement that his sentences would be "fully" concurrent. The petitioner also claims that the habeas court improperly determined that he was not entitled to one day of sentence credit under General Statutes § 18-98d(a)(2)(A).² Finally, he claims that the habeas court improperly rejected his claim that he had been deprived of his right to appeal because he had not been given notice of that right. We conclude that the habeas court properly resolved each of the petitioner's claims, and, accordingly, we affirm its judgment.³

The habeas court's memorandum of decision reflects the following facts, supported by the evidence produced by the state in the petitioner's criminal trial and by undisputed testimony adduced during the habeas trial. On March 23, 2003, the petitioner was apprehended by police minutes after robbing a convenience store and gas station in the town of Morris. The police found the stolen money, as well as the weapon used in the crime, on the petitioner. Two store employees thereafter identified the petitioner as the perpetrator. The petitioner admitted to having committed the robbery in Morris, as well as earlier robberies in Bridgeport, Trumbull and Seymour.

The petitioner first was arraigned in the judicial district of Litchfield for the Morris robbery, where he was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134, larceny in the second degree in violation of General Statutes § 53a123, threatening in the second degree in violation of General Statutes § 53a-62, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, conspiracy to commit larceny in the second degree in violation of §§ 53a-48 and 53a-123, carrying a dangerous weapon in violation of General Statutes § 53-206 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 (Litchfield case). He subsequently was arraigned in the judicial district of Fairfield for the Bridgeport and Trumbull robberies, and in the judicial district of Ansonia-Milford for the Seymour robbery.⁴ The petitioner was held in lieu of bond in all of these cases.

The state offered the petitioner plea agreements in all of the cases dealing with the five separate incidents. Pursuant to plea agreements that are not the subject of this appeal, on July 21, 2003, the petitioner first pleaded guilty to the Bridgeport and Trumbull offenses, and those matters were continued for sentencing on November 6, 2003. On August 12, 2003, the petitioner also pleaded guilty to the Seymour offenses, and those matters were transferred to the judicial district of Fairfield for a consolidated sentencing with the Bridgeport and Trumbull offenses on November 6, 2003.

In the period between the petitioner's guilty pleas in the other cases, on August 1, 2003, the petitioner pleaded guilty in the Litchfield case. He was represented in that case by Lawrence Peck, who negotiated a plea agreement with the state's attorney, David Shepack, pursuant to which the petitioner would plead guilty to robbery in the first degree and conspiracy to commit robbery in the first degree in exchange for a sentence of twenty years, execution suspended after ten years. That sentence was to run concurrent to the sentence to be imposed in the cases that had been consolidated for sentencing in Fairfield. Peck discussed this offer as well as the state's evidence with the petitioner, and the petitioner decided to accept the offer. The trial court in the Litchfield case, Bryant, J., accepted the plea after conducting a canvass, and continued the matter for sentencing to November 21, 2003. Peck found the plea canvass "unusual," but did not discuss with the petitioner his right to withdraw the plea. The petitioner never indicated to Peck that he wanted to appeal the conviction in the Litchfield case.

On November 6, 2003, pursuant to the other plea agreements, the Fairfield sentencing court, Damiani, J., sentenced the petitioner to a term of fourteen years imprisonment, execution suspended after ten years, and three years of probation. On November 21, 2003, the sentencing court in the Litchfield case, Gill, J., sentenced the petitioner to a term of imprisonment of twenty years, execution suspended after ten years, and five years of probation. Judge Gill ordered that the sentence run concurrent to "`other sentences imposed by courts of this state.'"

The respondent, the commissioner of correction, calculated the petitioner's presentence credit for the Fairfield consolidated offenses and determined that his release date was to be April 24, 2013. The respondent also calculated the petitioner's presentence credit for the offenses in the Litchfield case and determined that the petitioner's release date would be November 3, 2013. The difference in release dates was due to the application of § 18-98d(a)(1),⁵ which provides that, once a defendant's presentence confinement credit is applied to one sentence, those days are no longer available to reduce any subsequently imposed sentences. See Harris v. Commissioner of Correction, 271 Conn. 808, 818-19, 860 A.2d 715 (2004).

The record reflects the additional procedural history. The petitioner did not appeal from any of the judgments of conviction. Instead, on December 1, 2004, he filed a petition for a writ of habeas corpus. In his amended petition, the petitioner alleged in count one that his plea had not been knowingly, voluntarily and intelligently made because the Litchfield trial court, Bryant, J., had failed to fully advise the petitioner of certain rights pursuant to Practice Book § 39-19⁶ during the plea colloquy—specifically, the rights to a trial before a court or jury, to representation by counsel at trial, to confrontation and cross-examination of the state's witnesses at trial, to remain silent and to testify on his own behalf. Count two alleged that the petitioner had been deprived of his right to due process in that his sentence violated his right to be sentenced in accordance with his plea agreement under Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971),⁷ because he had not received full presentence credit on his sentence in the Litchfield case, and, therefore, his confinement was lengthened in breach of his understanding of the plea agreement with the state that his sentences would be "fully" concurrent. Count three requested that the habeas court award the petitioner one day of sentence credit under § 18-98d(a)(2)(A). Count four alleged that the petitioner was denied his right to appeal his conviction because he had not been given notice of his right to appeal. The return by the respondent denied the petitioner's material allegations and raised the affirmative defense of procedural default as to the claims in counts one and two. The petitioner's reply denied that procedural default applied to counts one and two, and alleged cause and prejudice as to count one.

The habeas court, Swords, J., held a two day hearing, after which it denied the petition for a writ of habeas corpus. Specifically, the habeas court found that count one, alleging a defective plea canvass, had been procedurally defaulted and that the petitioner had not established cause and prejudice sufficient to overcome the default. When considering the procedural default issue, the habeas court relied on both the petitioner's failure to withdraw his guilty plea pursuant to Practice Book § 39-26⁸ and his failure to file a direct appeal. With respect to count two, alleging breach of the plea agreement, the court concluded that this claim had been procedurally defaulted and also failed on the merits. Finally, the court concluded that count three failed because a habeas court does not have authority to grant sentence credit under § 18-98d(a)(2)(A), and that count four was entirely without merit. This appeal followed. Additional facts will be set forth as necessary.

Before we turn to the petitioner's claims we set forth our standard of review for habeas corpus appeals. "The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Questions of law and mixed questions of law and fact receive plenary review." (Internal quotation marks omitted.) Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003). The petitioner does not challenge the habeas court's factual findings. Rather, each of his claims raises either questions of law or mixed questions of law and fact, over which we exercise plenary review.

I

The petitioner first claims that the habeas court improperly found that he had procedurally defaulted his claim that his guilty plea was not knowing and voluntary. Within the context of this claim, the petitioner makes several contentions. First, he contends that the habeas court improperly relied in part on a ground that the respondent did not...