Dennis v. Comm'r of Corr.

• Citation: 189 Conn.App. 608,208 A.3d 282
• Decision Date: 07 May 2019
• Docket Number: AC 39874
• Court: Appellate Court of Connecticut
• Parties: Andre DENNIS v. COMMISSIONER OF CORRECTION

189 Conn.App. 608

208 A.3d 282

Andre DENNIS

v.COMMISSIONER OF CORRECTION

AC 39874

Appellate Court of Connecticut.

Argued September 25, 2018

officially released May 7, 2019

Nicholas Marolda, assigned counsel, with whom was Temmy Ann Miller, assigned counsel, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

Keller, Elgo and Eveleigh, Js.

EVELEIGH, J.

The petitioner, Andre Dennis, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended 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) incorrectly concluded that he failed to establish that his trial counsel rendered ineffective assistance when trial counsel failed to request a stay of execution that resulted in the loss of sixteen days of presentence incarceration credits. We agree with the petitioner that the habeas court improperly denied his petition for certification to appeal, and, after considering the merits of his claim, we conclude that the habeas court incorrectly determined that trial counsel did not render deficient performance when he failed to request a stay of execution of the petitioner's prior sentence. We, therefore, reverse the judgment of the habeas court.

The record discloses the following facts and procedural history. On July 30, 2015, the petitioner, who at the time was represented by Attorney Michael Richards (trial counsel), entered into a plea agreement at the Superior Court in Waterbury on a series of charges resulting in a total effective sentence of three years incarceration, followed by five years of special parole.¹ As part of the Waterbury plea agreement, the petitioner pleaded to the following: Admission of two counts of violation of probation in Docket Nos. CR-12-0410035-S and CR-12-0412661-S, and guilty under the Alford doctrine² to criminal violation of a restraining order in violation of General Statutes § 53a-223b in Docket No. CR-14-0423367-S, criminal violation of a protective order in violation of General Statutes § 53a-223 and the crime of assault in the third degree in violation of General Statutes § 53a-61 in Docket No. CR-14-0424236-S, and criminal violation of a protective order in violation of § 53a-223 in Docket No. CR-15-0432507-S.

Prior to accepting the pleas, the court canvassed the petitioner with respect to the plea agreement and found that it was entered into voluntarily and with the assistance of competent counsel. After accepting the pleas, but prior to imposing sentence, the court asked the petitioner if he would like to address the court. The petitioner stated that he "just want[ed] to make sure all [his] jail credit [would be] applied to all [his] dockets, even for ... [the] Meriden cases." The court responded that because the petitioner's other cases were pending in a different jurisdiction, it had no control over them, but stated: "What I can do is give you credit for any time you were incarcerated during the pendency of these cases that are in this jurisdiction."³ The court then sentenced the petitioner to a total effective sentence of three years incarceration, followed by five years of special parole in accordance with the state's recommendation. Prior to the conclusion of the proceeding, the court again asked whether anything else needed to be addressed before the conclusion of the proceeding. Trial counsel thanked the prosecutor and the court but made no further requests. Later that day, trial counsel filed a motion for presentence incarceration credits with the court but did not request a stay of execution of the sentence. On the following day, July 31, 2015, the court granted the motion.

Approximately three weeks later, on August 20, 2015, at the Superior Court in Meriden, as part of a separate plea agreement that stemmed from separate charges, the petitioner was sentenced to a total effective sentence of two years of incarceration, which was to run concurrently with the Waterbury sentence.⁴ As part of the Meriden plea agreement, the petitioner entered Alford pleas to the following charges: One count of criminal violation of a protective order in violation of § 53a-223 in Docket No. CR-14-0277421-S and one count each of the crimes of assault in the third degree in violation of General Statutes § 53a-61 and failing to appear in the first degree in violation of General Statutes § 53a-172 in Docket No. CR-13-0275489-S.

On February 25, 2016, the self-represented petitioner filed a petition for a writ of habeas corpus alleging that trial counsel had rendered ineffective assistance in several respects relating to the application of presentence incarceration credits. On August 3, 2016, the petitioner, now represented by assigned counsel, filed the operative amended petition, claiming that trial counsel had rendered ineffective assistance by failing to adequately preserve the petitioner's incarceration credits for time already served and that but for trial counsel's deficient performance, there was a reasonable probability that the petitioner would have a more favorable outcome in the form of a reduced period of special parole.

The petitioner's habeas trial was held on November 9, 2016, before the court, Fuger , J. During the evidentiary hearing, trial counsel testified that, while he was representing the petitioner at a violation of probation hearing in which the petitioner faced ten years incarceration, the petitioner informed him that he wanted to take the plea agreement that trial counsel had previously negotiated with the Waterbury prosecutor. Later in the hearing, when asked why he didn't ask for a stay of execution, trial counsel testified that the petitioner had been a difficult client who had tried to fire both of his previous attorneys and was unwilling to negotiate with the prosecutor. He further testified that "[the petitioner] kept wavering. There's a long track record of him blowing up, trying to fire everyone that had represented him in the past. I was just trying to get through the canvass really .... [W]e were kind of in the middle of a confusing moment there with the plea. I probably should have [requested the stay]. I'm not sure what the result was that we didn't do it, but again, I thought that his jail credit was a mess in Meriden anyway."

The court also heard from the Meriden trial counsel, who testified that he also did not ask for jail credits at the subsequent sentencing, but stated: "[I]t's something I should've done. I don't really have an explanation for [not doing] it." Furthermore, the petitioner's expert witness testified that defense attorneys in Connecticut have been aware of the issues surrounding jail credit for some time now and have learned through experience that it is necessary to take steps to protect whatever credit there may be. The expert further testified that having a strained relationship with a client and an urge to proceed through a hearing quickly does not justify failing to ask for a stay of execution and that one should always ask, except when it is counter to the client's express wishes. After the conclusion of evidence, the habeas court denied the petition by oral decision, concluding that there was no deficient performance on the part of trial counsel. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion when it found that he failed to prove that trial counsel's failure to request a stay of execution, which deprived him of sixteen days of presentence incarceration credits, constituted ineffective assistance of counsel.⁵

As a preliminary matter, we address the claim of the respondent, the Commissioner of Correction, that the petitioner's appeal should be dismissed as moot. This claim is predicated on the fact that the petitioner is no longer incarcerated.⁶ The respondent argues, therefore, that this court can afford the petitioner no practical relief. Although the petitioner is no longer incarcerated, the petitioner argues that practical relief still remains available because an order modifying the original sentence to include the sixteen days of presentence incarceration credit would likely lead to the advancement of his release from special parole by approximately that same amount of time. We agree that practical relief remains available to the petitioner, and, therefore, this appeal is not moot.

Our Supreme Court addressed a similar issue in Murray v. Lopes , 205 Conn. 27, 529 A.2d 1302 (1987). In Murray , the petitioner was sentenced to a two year period of confinement, followed by a period of probation. Id., at 29, 529 A.2d 1302. During the pendency of his appeal from the denial of his petition for a writ of habeas corpus, the petitioner was released from confinement and began serving the period of probation. Id., at 29–30, 529 A.2d 1302. In addressing a similar mootness argument, our Supreme Court concluded that the petitioner's appeal was not moot, despite his release from confinement, because, although no longer "confined," he was still serving the probationary portion of his sentence. Id., at 31, 529 A.2d 1302. The court further concluded that it could afford the petitioner practical relief, because an order directing the commissioner to recalculate the petitioner's sentence with the credit sought under General Statutes § 18-98d would affect the period of probation and result in the petitioner completing his probationary period three months sooner by advancing his release date. Id., at 30–31, 529 A.2d 1302 ; see id., at 31, 529 A.2d 1302 ("[t]herefore, since our resolution of the issue presented in this appeal will affect [the petitioner's] period of probation, the appeal is not moot").

In the present case, although the respondent...