Gonzalez v. Comm'r Of Correction.

• Decision Date: 27 July 2010
• Docket Number: No. 29686.,29686.
• Citation: 1 A.3d 170,122 Conn.App. 705
• Court: Connecticut Court of Appeals
• Parties: Odilio GONZALEZ v. COMMISSIONER OF CORRECTION.

122 Conn.App. 705

1 A.3d 170

Odilio GONZALEZ

v.COMMISSIONER OF CORRECTION.

No. 29686.

Appellate Court of Connecticut.

Argued Sept. 8, 2009.

Decided July 27, 2010.

Michael E. O'Hare, supervisory assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Gail P. Hardy, state's attorney, for the appellant (respondent).

Robert J. McKay, special public defender, for the appellee (petitioner).

BISHOP, LAVINE and SCHALLER, Js.

LAVINE, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting the second amended petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez. On appeal, the respondent claims that the court improperly concluded that the petitioner was denied the effective assistance of trial counsel because (1) the sixth amendment does not confer a right to the effective assistance of counsel in matters pertaining to credit for presentence confinement and (2) the petitioner did not meet his burden of showing deficient performance by his counsel or prejudice as a result of any such deficiency. Counsel renders ineffective assistance in violation of the sixth amendment when, after the right to counsel has attached, he fails to request that bond in connection with his client's prior arrest be increased in order to maximize his client's presentence confinement credit, leading to the deprivation of his client's liberty. Accordingly, we affirm the judgment of the habeas court. ¹

The following facts are relevant to the respondent's claims on appeal. The petitioner was arrested on April 21, 2006, docket number CR-06-0599898-S, and charged with threatening in the second degree in violation of General Statutes § 53a-62 (first arrest). He was released later that same day on a $500 nonsurety bond. On May 31, 2006, the petitioner was arrested again and charged with breach of the peace in the second degree in violation of General Statutes § 53a-181 and criminal violation of a protective order in violation of General Statutes § 53a-223, docket number CR-06-0600923-S (second arrest). The petitioner was arraigned the following day, and the court set bond in the amount of $35,000. He remained in custody until the court reduced his bond on June 16, 2006, to a promise to appear. On January 12, 2007, the petitioner was arrested for a third time, docket number CR-07-0607605-S, and charged with criminal violation of a protective order in violation of § 53a-223 and harassment in the second degree in violation of General Statutes § 53a-183. He was arraigned, with his counsel present, on January 16, 2007, at which time the court set bond in the amount of $65,000 on his January 12, 2007 arrest, and the petitioner remained in custody, unable to post bond (third arrest).

The petitioner's counsel, who represented the petitioner in all three matters, requested, on March 30, 2007, that the bonds in connection with the petitioner's first two arrests be increased so that the petitioner could receive presentence confinement credit for those arrests. ² The court, Ward, J., ordered that the petitioner's bonds resulting from the first two arrests be increased. On May 21, 2007, the petitioner, pursuant to a plea agreement, pleaded guilty to one count of violation of a protective order, arising out of the second arrest, and one count of threatening in the second degree, arising out of the first arrest. All other charges against him were nolled. The court, White, J., sentenced the petitioner on June 11, 2007, to five years incarceration, execution suspended after one year, followed by three years probation for violation of a protective order to be served concurrently with one year of incarceration for threatening in the second degree. At no time did counsel request that the petitioner receive presentence confinement credit for the seventy-three day period between January 16 and March 30, 2007, for one of his first two arrests.

On January 7, 2008, the petitioner filed his second amended petition for a writ of habeas corpus, claiming that counsel was ineffective in failing to request that the petitioner's bond be increased prior to March 30, 2007, and by not asking the court at any time following March 30, 2007, to credit the petitioner with seventy-three days of presentence confinement credit. He argued that had counsel asked for the bond increase on January 16, 2007, or asked that the petitioner be credited with the seventy-three days of presentence confinement credit, the petitioner would have discharged his sentence seventy-three days earlier than calculated. Following a trial, the habeas court, Schuman, J., found that the petitioner met his burden of proving that counsel's performance was deficient and ordered the respondent to credit the petitioner with seventy-three days of presentence confinement credit. ³ The habeas court granted the respondent's petition for certification to appeal, and this appeal followed.

I

The respondent first claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of counsel because he had no sixth amendment right to the effective assistance of counsel for a matter pertaining to presentence confinement. Specifically, the respondent argues that the petitioner did not have a right to the effective assistance of counsel because the calculation of presentence confinement credit is not a critical stage of the proceedings. ⁴ The respondent mischaracterizes the issue to be decided, and his claim is therefore rejected.

The respondent argues that the petitioner was not entitled to effective assistance of counsel for matters pertaining to presentence confinement credit. He further contends that because the calculation and application of jail credits are posttrial administrative matters, the January 16, 2007 court proceeding was not a critical stage of the petitioner's prosecution for which he is guaranteed effective assistance of counsel. The respondent's focus on whether a matter pertaining to presentence confinement is a critical stage misses the mark. ⁵ The appropriate inquiry is whether the petitioner was entitled to the effective assistance of counsel at his January 16, 2007 arraignment and, if he had counsel, whether counsel was effective.

“ ‘The [s]ixth [a]mendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the [a]ssistance of [c]ounsel for his defence.... This right attaches only at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment .... The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of [the] government and [the] defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the [s]ixth [a]mendment are applicable....’ We also have noted that the time of the attachment of the right to counsel under the federal constitution is no different under article first, § 8, of the constitution of Connecticut....

“The United States Supreme Court has indicated that the sixth amendment's core purpose is to assure that in any criminal prosecutio[n] ... the accused shall not be left to his own devices in facing the prosecutorial forces of organized society.... By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the intricacies ... of law ... is needed to assure that the prosecution's case encounters the crucible of meaningful adversarial testing.... In this regard, [w]e have consistently adopted the reasoning of the United States Supreme Court with respect to when the sixth amendment right to counsel attaches in a criminal proceeding, finding that [n]o right to counsel attaches until prosecution has commenced.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92-93, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).

“[I]t is the state's decision to move forward with the prosecution of the crimes charged in the information document, by arraigning the suspect and filing the information with the court, that signifies the state's commitment to prosecute as well as the initiation of the adversary judicial proceedings that trigger a defendant's right to counsel under the sixth amendment.” (Emphasis added.) Id., at 95, 890 A.2d 474. Our Supreme Court has cited with approval Hamilton v. Alabama, 368 U.S. 52, 54-55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), for the proposition that a criminal defendant enjoys the right to counsel at arraignment. State v. Falcon, 196 Conn. 557, 563-64, 494 A.2d 1190 (1985). “It is at this point in the process that the ‘prosecutorial forces of organized society’ aligned against the defendant, and the defendant actually found himself ‘immersed in the intricacies of substantive and procedural criminal law,’ thus warranting protection under the sixth amendment.” State v. Pierre, supra, 277 Conn. at 97, 890 A.2d 474. The petitioner's constitutional right to counsel had attached by the time of his arraignment.

Furthermore, “the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). “The...