State v. Dixson
| Decision Date | 17 January 2006 |
| Docket Number | No. 25651.,25651. |
| Citation | 888 A.2d 1088,93 Conn.App. 171 |
| Parties | STATE of Connecticut v. Ellis DIXSON. Ellis Dixson v. Commissioner of Correction. |
| Court | Connecticut Supreme Court |
James B. Streeto, assistant public defender, with whom, on the brief, was Sandra J. Crowell, assistant public defender, for the appellant (defendant in the first case, petitioner in the second case).
James A. Killen, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Elizabeth Bodine, former assistant state's attorney, for the appellees (state in the first case, respondent in the second case).
DRANGINIS, DiPENTIMA and PETERS, Js.
In these consolidated appeals, the petitioner, Ellis Dixson,1 in AC 25570 challenges the judgment of the trial court denying his motion to correct an illegal sentence and in AC 25651 challenges the judgment of the habeas court denying his petition for a writ of habeas corpus. The habeas court also denied the petitioner's petition for certification to appeal. The petitioner claims that in rendering judgment denying his motion to correct his sentence, the trial court abused its discretion by (1) not crediting his testimony that in separate proceedings before the trial court, which were held prior to his plea canvass, the state had agreed to credit him with all presentence jail credit he allegedly earned prior to commencing his sentence and (2) not considering reasonable his understanding that his sentence was to commence retroactive to April 9, 1992, the date he was sentenced for two other crimes unrelated to those at issue in these appeals.2 With respect to the habeas court's denial of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus, the petitioner claims that the habeas court abused its discretion by rejecting his claim that his attorney provided him with ineffective assistance at sentencing despite the attorney's alleged failure to ensure that the sentence was made effective retroactively to April 9, 1992, so that its date of commencement would coincide with the date he began serving the sentence on the two unrelated crimes to which the 1992 sentence was to run concurrently.3 We disagree and, accordingly, affirm the judgment of the trial court and dismiss the habeas appeal.
The following facts and procedural history inform our disposition of the petitioner's appeals. In connection with an incident occurring on or around April 13, 1990, the petitioner was arrested and charged with sexual assault in the first degree in violation of General Statutes § 53a-70. In connection with another incident, unrelated to the first, occurring on or around June 25, 1991, the petitioner was arrested and charged with sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (1990 and 1991 incidents). The petitioner pleaded guilty to both charges and was sentenced on April 9, 1992. On January 28, 1992, following his plea on those two charges, but prior to sentencing, the petitioner was arrested and charged with, inter alia, kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(a), sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and assault in the second degree in violation of General Statutes § 53a-60(a)(2) in connection with an incident occurring on or about January 27 and 28, 1992 (1992 incident).4 He was incarcerated prior to trial on those charges from January 29 to April 9, 1992, at which time he pleaded guilty and was sentenced for the 1990 and 1991 incidents. On the basis of the pleas for the 1990 and 1991 incidents, the petitioner was sentenced to ten years imprisonment, suspended after three and one-half years, with five years probation on the charge of sexual assault in a spousal relationship and three years and two months imprisonment on the charge of sexual assault in the first degree. Because the sentences were to run concurrently, the petitioner's total effective sentence was three and one-half years imprisonment. On the charges arising from the 1992 incident, the petitioner entered a plea of not guilty and elected a jury trial. Approximately one year and seven months later, however, on September 23, 1993, on the day that trial was to commence, the petitioner chose to plead guilty to the 1992 charges under the Alford doctrine5 in accordance with a plea bargain of twenty-one years incarceration, with a right to argue for less, that would be concurrent with the sentence he then was serving for the 1990 and 1991 incidents. On November 12, 1993, the court sentenced the petitioner for the 1992 incident to twenty years imprisonment on each of the first two counts and five years imprisonment on one of two counts that alleged assault in the second degree, with the sentences to run concurrently with each other for a total effective sentence of twenty years. The sentencing court indicated that the twenty year sentence was to run concurrently with any sentences the petitioner then was serving.
On November 14, 2002, the petitioner filed a petition for a writ of habeas corpus, and on September 16, 2003, he filed a motion to correct his sentence. Both filings attacked the validity of the sentence he received as a result of his pleas to the charges arising from the 1992 incident. Specifically, the petitioner claimed that he wrongfully had been denied presentence confinement credit he claimed to have accrued on the sentence from April, 1992, through November, 1993—the span of time between the date on which he was sentenced for the 1990 and 1991 incidents and the date on which he was sentenced for the 1992 incident.
In his motion to correct the sentence for the 1992 incident, the petitioner claimed that the state had breached its plea agreement with him by not crediting him for the time he had spent incarcerated as a sentenced prisoner. He claimed, in the first instance, that he was told he would "receive credit for all the time he had already served." Additionally, he claimed that because the state was not crediting his sentence with the time he spent in jail from April, 1992, when he was a sentenced prisoner, to November, 1993, that portion of his sentence was served consecutively rather than concurrently and, therefore, either was not in accordance with the sentence imposed by the court for the 1992 incident or was not in accordance with his reasonable understanding of the plea agreement into which he entered with the state.
In his petition for a writ of habeas corpus, the petitioner claimed that he had received ineffective assistance of counsel at sentencing because his attorney failed to ask the court to order that on the twenty year sentence for the 1992 incident, credit be given for the time spent incarcerated between April, 1992, and November, 1993. The petitioner also claimed that the advice he received from his attorney regarding credit for that time period constituted ineffective assistance of counsel because the advice fell below the standard of performance expected of reasonably competent defense attorneys. Separate hearings were held on the motion to correct the sentence, and the petition for a writ of habeas corpus. The trial court denied the petitioner's motion to correct the sentence, and the habeas court denied the petition for a writ of habeas corpus and thereafter denied the petition for certification to appeal. These consolidated appeals followed.
We first address the petitioner's claim that the trial court improperly denied his motion to correct the sentence.6 We will reverse the court's denial of the petitioner's motion to correct the sentence only on a showing that the court abused its discretion. State v. Pagan, 75 Conn.App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003); see also State v. Henderson, 8 Conn.App. 342, 344-45, 512 A.2d 974, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1304, 94 L.Ed.2d 159 (1987). Furthermore, in reviewing the petitioner's claims, we do not question credibility determinations reached by the court, for the trial court "is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 92 Conn.App. 382, 387 n. 6, 885 A.2d 761 (2005). Additionally, the petitioner can prevail in his challenge to the trial court's factual findings only if those findings are clearly erroneous. See In re Eden F., 250 Conn. 674, 705, 741 A.2d 873 (1999).
The petitioner claims that his sentence was imposed in an illegal manner because the sentence is not in accordance with the plea agreement he reached with the state. Specifically, the petitioner claims that he had been told that he would not lose any jail credit he had earned on his sentence and that his sentence would not exceed twenty-one years imprisonment. Additionally, the petitioner claims that he reasonably believed that his sentence for the 1992 incident, because it was to run concurrently with the sentence he already was serving for the 1990 and 1991 incidents, would begin to run on April 9, 1992, the date he was sentenced for the 1990 and 1991 incidents. His claim, in essence, is that his sentence for the 1992 incident retroactively accrued time from when he was a sentenced prisoner.7 On appeal, the petitioner challenges the accuracy of the trial court's factual finding that the state did not agree to credit him with the time he had served as a sentenced prisoner and the court's ultimate conclusion that the sentence for the 1992 incident, both in the manner that it was imposed and the method by which it was calculated, comported with the plea agreement into which he and the state had entered. We are not persuaded.
The following additional facts are necessary to our resolution of the...
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State Of Conn. v. Parker
... ... address this ground for correcting a sentence under § 43-22, and because ... there is a split of authority in the Appellate 295 Conn. 834 Court as to ... whether trial courts have jurisdiction to correct sentences on this basis; ... see State v. Dixson , 93 Conn. App. 171, 176 n.6, 888 A.2d ... 1088 (recognizing split of authority but concluding that this court ... implicitly had acknowledged jurisdiction for specific claim in case before ... court), cert. denied, 277 Conn. 917, 895 A.2d 790 (2006); see also State ... v. Koslik , 116 ... ...
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State v. Parker, (SC 18432) (Conn. 4/27/2010)
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