Opinion
No. CV 05 4000567 S
May 5, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner, Anthony Henry, has brought this amended habeas corpus petition alleging that his incarceration is illegal. More specifically, the petitioner alleges that his plea agreement encompassed presentence confinement credits, and that the respondent has failed to properly credit him in docket number CR04-103971 with one hundred and thirty (130) days of presentence confinement credit per this plea agreement. The respondent's return denies that the petitioner is entitled to the relief he seeks and raises the special defense of procedural default. The petitioner filed a reply denying that he has procedurally defaulted and that the defense applies to his instant claim.
The matter came before the court on January 3, 2008, for a trial on the merits. Witnesses called by the petitioner included the petitioner himself, Department of Correction Record Specialist II Tracy Hannan, and Assistant State's Attorney Susan Vieux, who was the prosecutor in the underlying criminal matters at issue. Additionally, several documents primarily consisting of copies of court documents and time sheets produced by the respondent were entered into evidence. The court permitted both parties to file post-trial briefs. Petitioner's brief was filed on January 7, 2008; respondent's brief was filed on January 10, 2008. Based on the court's review of the testimony and evidence, and considering the legal arguments presented in the briefs, judgment enters denying the habeas corpus petition.
FINDINGS OF FACTS
The petitioner was the defendant in State v. Anthony Henry, Docket Number CR03-146214, in the Superior Court, G.A. 1, Judicial District of Stamford at Stamford (hereafter "Stamford case"), wherein he was arrested and charged with one count of Possession of Narcotics, in violation of C.G.S. § 21a-279(a), one count of Sale of Certain Illegal Drugs, in violation of C.G.S. § 21a-278(b), and one count of Possession of Illegal Narcotics by a Non-Student within 1500 Feet of a School, in violation of C.G.S. § 21a-279(d). The petitioner posted bond and was released.
Then, on March 2, 2004, the petitioner was arrested and charged in Docket Number CR04-0103971, in the Superior Court, G.A. 20, Judicial District of Stamford at Norwalk (hereafter "Norwalk case"), with one count of Criminal Impersonation, in violation of C.G.S. § 53a-130, one count of Possession of a Controlled Substance within 1500 Feet of a School, in violation of C.G.S. § 21a-278a(b), one count of Sale of Certain Illegal Drugs, in violation of C.G.S. § 21a-278(b), one count of Possession of Narcotics, in violation of C.G.S. § 21a-279(a), and one count of Possession of Illegal Narcotics by a Non-Student within 1500 Feet of a School, in violation of C.G.S. § 21a-279(d). The petitioner posted a bond $10,000 bond on March 2, 2004 and was released.
On April 15, 2004, the petitioner was arrested again. The petitioner was charged in Docket Number CR04-0104437, in the Superior Court, G.A. 20, Judicial District of Stamford at Norwalk (hereafter "second Norwalk case"), with one count of Possession of a Controlled Substance within 1500 Feet of a School, in violation of C.G.S. § 21a-278a(b), one count of Sale of Certain Illegal Drugs, in violation of C.G.S. § 21a-278(a), one count of Possession of Illegal Narcotics by a Non-Student within 1500 Feet of a School, in violation of C.G.S. § 21a-279(d), one count of Possession of Narcotics, in violation of C.G.S. § 21a-279(a), one count of Interfering with an Officer/Resisting, in violation of C.G.S. § 53a-167a, and one count of Criminal Trespass in the First Degree, in violation of C.G.S. § 53a-107. Again, the petitioner was able to post bond and was released.
On April 16, 2004, during the hearing at which bond was set for the second Norwalk case, the bail commissioner indicated to the court that the petitioner had a pending matter out of Stamford on for April 29, 2004, as well as a case pending out of Norwalk on for April 30, 2004. The second Norwalk case was ultimately continued to April 30, 2004, to coincide with the previously pending Norwalk case.
On April 30, 2004, the petitioner was taken into custody while in court for the Norwalk cases. The transcript of April 30, 2004 indicates that the petitioner's bond had been posted in error. According to the prosecuting attorney, the petitioner's full bond was $75,000, but he had been released on $15,000 bond, apparently due to a clerical error. The petitioner was taken into custody at that time. The court (Jennings, J.) released the $15,000 and set bond at $75,000. The petitioner has remained in custody from April 30, 2004 to the present.
On June 24, 2004, the petitioner was arrested in the Stamford case and charged with one count of Failure to Appear in the First Degree, in violation of C.G.S. § 53a-172. The offense date indicated both in the Uniform Arrest Report and in the information is April 29, 2004. This offense date correlates to the date the bail commissioner indicated to the court on April 16, 2004, as the date on which the petitioner's Stamford case had been set down.
Then, on September 7, 2004, the petitioner resolved the Stamford case by way of a guilty plea. The petitioner entered a plea of guilty to one count of Sale of Certain Illegal Drugs, in violation of C.G.S. § 21a-278(b). In exchange for the petitioner's guilty plea, the state agreed to nolle prosequi the charges in the three other counts. The court imposed the mandatory minimum sentence of five years to serve. Upon receiving the petitioner into custody on the judgment mittimus, the respondent on September 7, 2004 posted seventy-five (75) days of presentence confinement credit to the Stamford case, representing the time period of June 24, 2004 through September 7, 2004. The petitioner's release date from the sentence in the Stamford case thereby was established as June 23, 2009.
On June 15, 2005, the petitioner resolved both of the Norwalk cases by way of a guilty plea. The petitioner entered pleas of guilty in a substitute information in the Norwalk case to one count of Possession of a Narcotic with Intent to Sell, in violation of C.G.S. § 21a-277(a), and one count of Criminal Impersonation, in violation of C.G.S. § 53a-130. In exchange for the petitioner's guilty pleas, the state agreed to nolle prosequi all charges in the second Norwalk case. The court (Dooley, J.) imposed a sentence of six years to serve, followed by six years special parole, for the possession with intent to sell offense. The court also imposed a six-month sentence for the offense of criminal impersonation. The sentences were ordered to run concurrently, for a total effective sentence of six years to serve, followed by six years special parole. Additionally, the Norwalk sentence was ordered to run concurrently with petitioner's other sentences then being served (i.e., the Stamford sentence).
After Judge Dooley accepted the pleas and ordered that a finding of guilty may enter, petitioner's counsel, attorney Lamontagne, brought up the issue of jail credit, or presentence confinement credit. Attorney Lamontagne indicated that ". . . there [were] some issues that came up that may result in a little problem and I'm just asking Your Honor to order that any jail credit he's entitled to back to April [30, 2004]." (Emphasis added.) Respondent's Exhibit E, at pg. 7. Attorney Lamontagne continued: ". . . There was an issue of bonding out when — and stuff of that nature. In addition, he's a sentenced prisoner out of Stamford court. But if Your Honor says that he's to get his credit back to April 30th, 2004, there should be no issues over that." Id., at 7-8.
After attorney Lamontagne stated the foregoing, the prosecutor remarked that: "The State has no objection to that being put on the mittimus Your Honor, however, I just want the record to reflect that the spirit of the agreement that the State of Connecticut has entered into is that he is to get his six years to serve and six [years] special parole, and that this plea is being struck today. To the extent that he's entitled to credit and Corrections gives that to him, that's great. But as far as the State of Connecticut is concerned he's starting his time now[.]" (Emphasis added.) Id., at 8. Judge Dooley then emphasized to the petitioner that the six years was to start running from the date of sentencing. Id. The petitioner repeated what that court had just said to him: "So my time starts from today." Id. The petitioner continued, however, by asking: "So I'll get credit for fourteen months I've been in jail?" Id. Attorney Lamontagne clarified his client's request: "Your Honor, he has credit that he's entitled to back to April 30th of last year." Id., at 9. Thereafter, the following colloquy transpired:
MR. LAMONTAGNE: . . . And all we're asking is that Your Honor state that if he's entitled to such credit, that he be given that credit.
MS. VIEUX: And the State has no objection to that.
THE COURT: All right.
MS. VIEUX: Okay. We're just wanting the record to be clear of the spirit of the agreement as I earlier stated.
MR. LAMONTAGNE: Correct.
THE COURT: You — you want the same deal?
THE DEFENDANT: Yeah.
MR. LAMONTAGNE: Correct. He just wants his credit that he's entitled to —
THE COURT: He'll get his credit.
CT Page 7365
MR. LAMONTAGNE: There were issues in the past that led to other problems for Mr. Henry.
MS. VIEUX: Yes.
MR. LAMONTAGNE: And we're just trying to avoid that. He's been held on this case since April 30th of last year. There is a part of time when he was a sentenced prisoner. He understands that that credit is not going to be applied, but time prior to the sentencing is what we're concerned about.
THE DEFENDANT: You see, basically what it is Your Honor, no disrespect to the Court, is like if I get sentenced today, I don't mind getting sentenced today to the six years as long as my date remains 2010, my discharge for the six years. That's what I'm trying, you know what I'm saying, make it okay, April 30th, when I got committed to the system when I came in on the warrant — well, it wasn't a warrant — I would want it to run from that date until now so my fourteen months —
THE COURT: Okay.
THE DEFENDANT: — that I have in will still be fourteen months. So I could put in for a halfway house and get the programs that I need.
MR. LAMONTAGNE: Yes, Your Honor.
THE COURT: I'm sentencing you to six years in jail. What they want to do up there [in the Department of Correction] is entirely up to them. But I will — I will state on the habeas with what we've agreed to.
MS. VIEUX: Yes.
MR. LAMONTAGNE: Thank you.
MS. VIEUX: And the clerk has written on the habeas pursuant to your order that any credit the defendant is entitled to, he should receive.
THE DEFENDANT: Okay.
THE COURT: Back until April 30th, okay. All right.
MR. LAMONTAGNE: Thank you.
Petitioner's Exhibit H (Transcript, June 15, 2005), at pgs. 10-11. (Emphasis added.)
The court then imposed a total effective sentence of six years to serve, followed by six years special parole, to run concurrent with sentences presently being served.
The judgment mittmus for the Norwalk sentence bears the following notation made by the clerk: "* Any credit is entitle[d] since 4-30-04 He should receive." Petitioner's Exhibit G. Upon receiving the petitioner into custody on the Norwalk mittimus, the respondent determined that the petitioner was not entitled to have any presentence confinement credits applied to the Norwalk sentence. See Petitioner's Exhibit 3.
Additional facts will be discussed as necessary.
DISCUSSION
The respondent has raised procedural default as an affirmative defense. The court must, therefore, address that defense prior to addressing the merits of petitioner's claims. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n. 23, 937 A.2d 656 (2007) ("a habeas court should expressly address and resolve the threshold issue of procedural default when the issue has been raised as a defense").
The return specifically alleges that "[t]he petitioner is not entitled to habeas review of his "oblique Santobello claim due to his failure to first raise the claim in a motion to correct an illegal sentence pursuant to Practice Book § 43-22, or on direct appeal." Return, at pg. 3. The respondent also alleges that "the petitioner cannot obtain habeas corpus review of a claim that his plea was not voluntary, intelligent and or knowing and was therefore taken in violation of due process of law. He failed to raise such a claim at his sentencing hearing or on direct appeal. Thus, any such claim is procedurally defaulted." Id.
Santobello v. New York, 404 U.S. 257, 92 S.Ct 495 (1971).
The petitioner's reply denies that he has procedurally defaulted. More specifically, the petitioner argues that he is ". . . not claim[ing] that his sentence is `illegal' as contemplated by Practice Book § 43-22. Petitioner's claim is that he entered into a contract with the State which the State is not implementing. His claim is governed by contract law, as Santobello establishes." Reply, at pg. 1. The petitioner also denies that he somehow is claiming his plea was involuntary, not knowingly entered or not intelligent. "He asserts that his plea was based upon a contract with the State that he understood clearly and entered into voluntarily. He seeks only to have the terms of the contract effectuated." Id.
The amended petition filed by and through counsel pleads the claim as the "failure to implement petitioner's plea agreement with the state." Amended Petition, at pg. 1. The petitioner's claim includes allegations that the terms of the Norwalk plea agreement encompassed presentence confinement credit. Furthermore, the petitioner alleges that the respondent has failed to comply with the order noted on the judgment mittimus that the petitioner receive such presentence confinement credits. As relief, the petitioner seeks that this court determine that it was a term of the plea agreement in the Norwalk case that he receive 130 days of presentence confinement credit, as well as that the respondent be ordered to apply such credit. The respondent has specifically denied the allegations that the plea agreement encompassed such credit and that the respondent has failed to comply with the orders in the Norwalk judgment mittimus.
It is clear from the foregoing that the key fact put in dispute via the pleadings is whether the plea agreement did encompass presentence confinement credit. "In Santobello [ v. New York, 404 U.S. 257, 262, 92 S.Ct 495, 30 L.Ed.2d 427 (1971),] the United States Supreme Court held that, `when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.'" Orcutt v. Commissioner of Correction, 284 Conn., supra, 727 n. 1.
The Orcutt court additionally noted that it ". . . agree[d] with the respondent that a motion to correct an illegal sentence under Practice Book § 43-22 is a proper vehicle for a Santobello claim; e.g., State v. Henderson, 93 Conn.App. 61, 67, 888 A.2d 132 (`[a] sentence imposed in an illegal manner [within the meaning of Practice Book § 43-22] is one within the relevant statutory time limits but . . . imposed in a way which violates [a] defendant's right to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying solely on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises' . . ., cert. denied, 277 Conn. 927, CT Page 7368 895 A.2d 800 (2006)[.]" (Emphasis in original.) Orcutt v. Commissioner of Correction, 284 Conn., supra, 738 n. 25.
Applying the foregoing principles to the instant matter, the court concludes that the central issue is whether the government in fact promised the petitioner that he would receive presentence confinement credit. If such a promise was part of the inducement that resulted in petitioner's plea, then he could prevail in a Santobello claim if such credit has not been applied to the appropriate sentence. Contrary to petitioner's argument in the reply to the return, the defense of procedural default does apply to his claim in the amended petition because it is a Santobello claim.
Both the evidence and the entire record in this matter do not demonstrate that the petitioner either filed a motion to correct his illegal sentence or raised such a claim on direct appeal. See Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). Furthermore, the petitioner has neither alleged nor shown the required cause and prejudice to surmount the procedural default.
It bears emphasis why it is particularly important that the sentencing court is presented with a motion to correct an illegal sentence. It is the sentencing court that is in the best position to assess whether the sentence being served effectuates the sentence the court intended. As the Supreme Court has noted, ". . . it is to a defendant's advantage to move in the trial court, pursuant to [§ 43-22], to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of [a] defendant's challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to [§ 43-22] . . . By filing a motion with the trial court, a defendant not only can be heard more expediently, but he also has access to certain remedies with regard to sentencing that the habeas court, the Appellate Court, and this court do not have the authority to order. For example, to correct an illegal sentence, only the trial court can reconstruct the sentence to conform to its original intent or the plea agreement; eliminate a sentence previously imposed for a vacated conviction; or resentence a defendant if it is determined that the original sentence was illegal." (Internal citations and quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 38-39, 779 A.2d 80 (2001), citing and quoting Copeland v. Warden, 225 Conn. 46, 47-48 n. 2, 621 A.2d 1311 (1993).
Two recent cases further underscore the importance of first presenting the sentencing with a motion to correct an illegal sentence. Orcutt v. Commissioner of Correction, 284 Conn. 724, 743-44, 937 A.2d 656 (2007), citing to Cobham v. Commissioner of Correction, supra, 258 Conn. 39, for the proposition that "only trial court has authority to resentence defendant to conform to terms of plea agreement"; see also Medley v. Commissioner of Correction, 235 Conn. 413, 417 n. 5, 667 A.2d 549 (1995), and Brooks v. Commissioner of Correction, 105 Conn.App. 149, 163, 937 A.2d 699 (2007), cert. denied, 286 Conn. 904 (2008).
"As the United States Supreme Court has noted in specifically adopting the cause and prejudice standard to analyze procedural defaults on direct appeal: `A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack . . . [Such rules] [afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant's claim and to retry the defendant effectively if he prevails in his appeal . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case . . .' (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
[T]his court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality . . . Therefore, we will review the claims only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation . . .
CT Page 7369
Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . Because [c]ause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong . . .
(Citation omitted.) Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911 (2008).
The court concludes, based on the foregoing discussion, that the petitioner has failed to allege and show the required cause and prejudice for the procedural default. The petitioner thus remains procedurally defaulted and this court may not address his claim on the merits.
CONCLUSION
Based on all the foregoing, the writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.