Gonzalez v. Comm'r of Corr.

• Decision Date: 14 May 2013
• Docket Number: SC18688
• Court: Connecticut Supreme Court
• Parties: GONZALEZ v. COMMISSIONER OF CORRECTION

GONZALEZ v. COMMISSIONER OF CORRECTION

SC18688

Supreme Court of Connecticut

Dated: May 14, 2013

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DISSENT

ZARELLA, J., dissenting. The majority opinion effectively broadens the scope of the sixth amendment beyond what is recognized under either the language of the amendment or the jurisprudence of the United States Supreme Court, which has applied the right to counsel in the pretrial context only with respect to ''critical stages'' of the prosecution when an accused confronts the possibility of prejudice in the adversarial process. Thus, I cannot agree with the majority that, at an arraignment for a third arrest, an attorney's failure to request an increase in his client's bonds relating to two prior arrests occurs as part of a critical stage of the proceedings. I am persuaded that the majority's focus on the arraignment for the petitioner's third arrest, rather than the bond proceedings relating to the two prior arrests, is misplaced. To the extent that the arraignment for the third arrest was a critical stage of the criminal proceedings related to that arrest, the bond determinations made in connection with the petitioner's two prior arrests were not part of a critical stage of those proceedings. Because I am not persuaded that a bond hearing is a critical stage under the sixth amendment, I instead would hold that the petitioner was not denied his constitutional right to the effective assistance of counsel at the time of the purported violation and would reverse the judgment of the Appellate Court. Accordingly, I respectfully dissent.

As the majority sets out more fully in its opinion, this appeal arises from a petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez, in which he alleged that his convictions and incarceration were ''illegal because they were obtained in violation of his federal constitutional right to the effective assistance of counsel . . . .'' At the time of his arrest on January 12, 2007, the petitioner, who had been arrested and released on a promise to appear and on a nonsurety bond, respectively, on two prior occasions, was unable to post bond with respect to his third arrest and was taken into custody following his January 16, 2007 arraignment. On March 30, 2007, the petitioner's counsel requested that the trial court increase the petitioner's bonds with respect to the first and second arrests in order to maximize the petitioner's potential eligibility for presentence confinement credit under General Statutes § 18-98d, which the trial court did. The petitioner entered a guilty plea to two charges on May 21, 2007, pursuant to a plea agreement, and was sentenced on June 11, 2007. Under the terms of the agreement, the petitioner pleaded guilty to counts arising out of his first and second arrests, and the charges related to the third arrest—for which the seventy-three days from January 16 through March 29, 2007, might have been credited— were nolled. The petitioner relies on this seventy-threeday period from his third arrest through the decision of the trial court to raise his bonds in connection with the other two arrests as the basis for his claim of ineffective assistance of counsel.

The petitioner claims that the failure of counsel to request an increase in bond prior to March 30, 2007, constituted ineffective assistance of counsel because it ''caused a loss of [seventy-three] days of presentence credit [to which the] petitioner would have been entitled.'' The respondent, the commissioner of correction, maintains, however, that the petitioner was not deprived of his constitutional right to the effective assistance of counsel at the time of the alleged deficiency because it did not occur within the context of a critical stage of the prosecution. Accepting the petitioner's argument, the majority concludes that the petitioner's counsel, in failing to request an increase in the bonds relating to the first and second arrests at the time of the petitioner's arraignment for the third arrest, performed deficiently in his representation of the petitioner.

I disagree with the majority because I am not persuaded that the injury about which the petitioner complains occurred during a critical stage of the prosecution, which would render the sixth amendment right to the effective assistance of counsel inapplicable. Specifically, I am convinced that the majority improperly focuses on the arraignment for the third arrest, rather than the bail determinations relating to the prior arrests, as the relevant procedure for its critical stage analysis. Bail determinations, although often addressed concurrently with arraignments, also can be addressed at other times, and the fact that an arraignment is a critical stage of a prosecution cannot transform an ancillary proceeding, such as a bail determination, into a critical stage simply by association.¹

In a similar vein, I also disagree with the majority to the extent that it accepts the petitioner's implicit premise that he was entitled to an increase in his bonds solely to avail himself of presentence confinement credit,² and that counsel's failure to request such an increase rose to the level of constitutionally deficient representation, because the decision to raise or lower bond is within the sound discretion of the trial court, and an increase need not have been granted simply because it was requested by the petitioner's counsel. I address these concerns in turn.

I begin by briefly summarizing the applicable legal principles. First, with respect to the writ of habeas corpus, this court has emphasized that ''[h]abeas corpus provides a special and extraordinary legal remedy for illegal detention. . . . The deprivation of legal rights is essential before the writ may be issued.'' (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 815, 786 A.2d 1091 (2002). ''Thus, ordinarily a habeas corpus petitioner must estab-lish some fundamental constitutional violation entitling him to relief.'' Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992).

The constitutional provision on which the petitioner relies is the sixth amendment to the federal constitution. The relevant clause of the sixth amendment, which is made applicable to the states through the due process clause of the fourteenth amendment; see, e.g., Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); guarantees that, ''[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." (Emphasis added.) U.S. Const., amend. VI. ''As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.'' (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, 307 Conn. 342, 351, 53 A.3d 983 (2012).

The United States Supreme Court has long emphasized that ''the [s]ixth [a]mendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. (Emphasis added.) Strickland v. Washington, supra, 466 U.S. 684; see also Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). ''Thus, the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the [s]ixth [a]mendment guarantee is generally not implicated. United States v. Cronic, [466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)].'' (Internal quotation marks omitted.) Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993); see also Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) ('' 'benchmark' '' of right to counsel under Strickland is ''fairness of the adversary proceeding); United States v. Cronic, supra, 653 (''[w]ithout counsel, the right to a trial itself would be 'of little avail' "); United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981) (right to counsel ''is meant to [ensure] fairness in the adversary criminal process").

Acknowledging the changes in prosecutorial practice that have occurred since the sixth amendment was crafted, however, the United States Supreme Court gradually has broadened the protections thereunder, finding it applicable not only to an accused's defense at the trial itself, but also to those ''critical confrontations of the...