Fitzgerald Council v. Com'R of Correction

• Decision Date: 22 April 2008
• Docket Number: No. 18016.,No. 18015.,18015.,18016.
• Citation: 944 A.2d 340,286 Conn. 477
• Court: Connecticut Supreme Court
• Parties: FITZGERALD COUNCIL v. COMMISSIONER OF CORRECTION.

944 A.2d 340

286 Conn. 477

FITZGERALD COUNCIL v. COMMISSIONER OF CORRECTION.

No. 18015.

No. 18016.

Supreme Court of Connecticut.

Argued January 3, 2008.

Decided April 22, 2008.

Temmy Ann Pieszak, chief of habeas corpus services, for the appellant in Docket No. SC 18015, and the appellee in Docket No. SC 18016 (petitioner).

Erika L. Brookman, special deputy assistant state's attorney, with whom were Michael E. O'Hare, supervisory assistant state's attorney, and, on the brief, John A. Connelly, state's attorney, and Patrick J. Griffin, assistant state's attorney, for the appellee in Docket No. SC 18015, and the appellant in Docket No. SC 18016 (respondent).

KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The petitioner, Fitzgerald Council, filed this habeas action, claiming, inter alia, that (1) the trial court deprived him of his due process rights under the fifth and fourteenth amendments to the United States constitution by conditioning his plea agreement on his not being arrested between the date of the plea and the date of sentencing, including arrests that might be beyond the petitioner's power to prevent, and (2) his presentence confinement in one case was not properly credited against the sentence at issue in another case as a result of his trial counsel's ineffective representation. Following a trial to the habeas court, Fuger, J., the court rendered judgment granting the petitioner's amended petition for a writ of habeas corpus with respect to his presentence confinement credit claim and denying the petition in all other respects. The petitioner, on the granting of certification, then appealed from the judgment of the habeas court, claiming that the court improperly had denied his due process claim. The respondent, the commissioner of correction, on the granting of certification, filed a separate appeal from the judgment of the habeas court, claiming that the court improperly had granted the habeas petition with respect to the petitioner's claim regarding presentence confinement credit.¹ We affirm the judgment of the habeas court.

The record reveals the following undisputed facts and procedural history. On October 14, 2001, the petitioner was arrested and charged, in Docket No. CR-01-0304916-S (assault case), with a number of criminal offenses, including assault of a police officer in violation of General Statutes (Rev. to 2001) § 53a-167c. The petitioner entered into a plea agreement with the state whereby, in exchange for the petitioner's guilty plea on the assault charge, the state would drop the other charges² and recommend a sentence of five years imprisonment, suspended after three years, and three years probation.

Thereafter, the petitioner pleaded guilty to the assault charge under the Alford doctrine.³ At the plea hearing, the trial court, Iannotti, J., granted the petitioner's request to postpone sentencing and to permit the petitioner to remain free on bond pending sentencing subject to certain conditions, which were imposed pursuant to State v. Garvin, 242 Conn. 296, 299-302, 699 A.2d 921 (1997).⁴ Specifically, the court advised the petitioner that, if he failed to appear at sentencing or was arrested between the date of the plea hearing and sentencing, the court would be free to sentence him to the maximum ten year term of imprisonment for the assault charge.⁵ The petitioner indicated that he understood the conditions, that he wanted to plead guilty and that he knew that there was "no turning back" once the court accepted his plea. The court then accepted the plea.

On March 28, 2003, after the plea hearing, but before sentencing in the assault case, the petitioner was arrested and charged, in Docket No. CR-03-0319784-S (drug case), with, inter alia, possession of marijuana in violation of General Statutes § 21a-279 (c) and interfering with a police officer in violation of General Statutes (Rev. to 2003) § 53a-167a. Before the petitioner's arraignment, the trial court, Maloney, J., found that there had been probable cause for the arrest. At the arraignment, the trial court, Ginocchio, J., was notified that the petitioner previously had entered into a plea agreement and that the new arrest violated the conditions of that agreement.

Thereafter, the petitioner appeared before the trial court, Iannotti, J., for sentencing in the assault case. The state advised the trial court that the petitioner had violated the "no arrest" condition of the plea agreement and requested that the court impose the maximum sentence of ten years imprisonment. The petitioner addressed the court and denied both that he had assaulted the officer in the case before the court and that he had engaged in the conduct that resulted in the charges in the drug case. The trial court continued the sentencing hearing so that the petitioner could order and review the transcript of the previous plea hearing at which the court had imposed the Garvin conditions.

When the sentencing hearing in the assault case reconvened, the state again requested that the trial court impose the maximum ten year sentence on the assault charge. The petitioner again denied that he had assaulted the officer and that he had engaged in the criminal conduct with which he had been charged in the drug case. He did not request, however, that the court allow him to withdraw his guilty plea. The trial court sentenced the petitioner to five years imprisonment in the assault case. The petitioner did not appeal from the trial court's judgment in the assault case. Thereafter, in the drug case, the petitioner pleaded guilty under the Alford doctrine to possession of marijuana⁶ and was sentenced to six months imprisonment, to be served concurrently with the five year sentence that the trial court imposed in the assault case.

Subsequently, the petitioner filed a petition for a writ of habeas corpus and, thereafter, an amended petition, claiming that (1) under State v. Stevens, 85 Conn.App. 473, 478-80, 857 A.2d 972 (2004),⁷ the trial court had violated his constitutional due process rights when it imposed, in connection with his plea agreement in the assault case, the "no arrest" condition, which included arrests that were beyond the petitioner's control (count one), (2) he was denied effective assistance of counsel when his trial counsel failed to advise him adequately about his parole eligibility and, therefore, that his Alford plea in the assault case was not intelligent, knowing and voluntary (count two), and (3) he was denied effective assistance of counsel when his trial counsel failed to request an increase in his bond in the assault case after his arrest in the drug case, thereby depriving the petitioner of credit in the assault case for his presentence incarceration in the drug case (count three). The petitioner also represented that he had not raised any of these claims in the trial court or on direct appeal from the judgments of conviction. In its return, the respondent claimed that the habeas court's review of count one was barred by procedural default because the petitioner had not attempted to withdraw his Alford plea in the trial court or to challenge its validity on direct appeal. The respondent also denied that the allegations of count two constituted ineffective assistance of counsel and left the petitioner to his proof on count three. In his reply to the respondent's return, the petitioner claimed that count one was not barred by procedural default because neither the trial court nor his counsel had advised him of his right to withdraw his Alford plea in the assault case.⁸

After a trial to the habeas court, Fuger, J., that court concluded that, under this court's decision in State v. Stevens, 278 Conn. 1, 11-13, 895 A.2d 771(2006),⁹ which had been released shortly before the habeas trial, Judge Maloney's finding of probable cause to arrest the petitioner in the drug case, together with the petitioner's Alford plea in that case, provided a sufficiently reliable basis to enforce the "no arrest" condition imposed in connection with the plea agreement in the assault case. Accordingly, the habeas court denied relief on count one. The habeas court then found that the petitioner had not proven that his counsel had failed to advise him adequately about his parole ineligibility and that, even if he had, the petitioner had not been prejudiced. Accordingly, the habeas court denied relief on count two. With respect to count three, the habeas court concluded that the failure of the petitioner's trial counsel to request an increase in the bond on the assault case after the petitioner was arrested for possession of marijuana constituted ineffective assistance of counsel and that the petitioner was prejudiced by the resulting unavailability of presentence confinement credit in the assault case. Accordingly, the court granted relief on count three of the habeas petition.

These appeals followed. After the appeals were filed, the petitioner filed in the habeas court a motion for articulation of the reasons for its judgment denying relief on count one of the habeas petition. The habeas court denied the motion. The petitioner thereafter filed in the Appellate Court a motion for review of the habeas court's denial of the motion for articulation in which he requested that the Appellate Court order the habeas court to articulate the reasons for the denial of relief on count one. The Appellate Court granted the motion and the relief requested therein. The habeas court then issued an articulation in which it stated that both parties had abandoned the issue of procedural default at the habeas trial and that, accordingly, the habeas court had based its ruling on the merits of the petitioner's claim. The habeas court further stated that, because the petitioner had not challenged the validity of his Alford plea in the drug case, there was a sufficient basis under State v. Stevens, supra, 278 Conn. at 1, 895 A.2d 771, to conclude that the...