Opinion
No. TSR CV04 4000210-S
August 10, 2007
MEMORANDUM OF DECISION
Petitioner filed a pro se petition for a writ of habeas corpus on December 1, 2004, which was amended on April 18, 2006. The amended petition raises claims in four counts: first, that petitioner's guilty plea in CR03-110622 was not knowing, voluntary and intelligent; second, that petitioner's right to due process was violated by the state illegally lengthening his confinement in CR03-110622; third, that petitioner failed to received one day of presentence confinement credit in CR03-110622 in accordance with Gen. Stat. § 18-98d(a)(2)(A); and fourth, that petitioner was denied his statutory right to appeal the conviction in CR03-110622.
Respondent's return denies petitioner's material allegations and that he is entitled to habeas relief. The return also raises the affirmative defense of procedural default as to the claims in counts one and two. Petitioner filed a reply denying that procedural default applies to the counts one and two, but only alleges cause and prejudice as to count one.
The matter came before the court on two days in February and May 2007, for a trial on the merits. Witnesses included petitioner, Michelle DeVeau, David Shepack, Catherine Teitell and Lawrence Peck. The court finds the testimony of DeVeau, Shepack, Teitell and Peck to be highly credible and the testimony of petitioner to be credible in part and not credible in part. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the Superior Court, judicial district of Litchfield, Docket Number CR03-110622, in which he was charged with the crimes of robbery in the first degree in violation of Gen. Stat. § 53a-134; larceny in the second degree in violation of Gen. Stat. § 53a-123; threatening in the second degree in violation of Gen. Stat. § 53a-62; conspiracy to commit robbery in the first degree in violation of Gen. Stat. §§ 53a-48 and 53a-134; conspiracy to commit larceny in the second degree in violation of Gen. Stat. §§ 53a-48 and 53a-123; carrying a dangerous weapon in violation of Gen. Stat. § 53-206 and possession of a weapon in a motor vehicle in violation of Gen. Stat. § 29-38. Petitioner was arrested for these offenses on or about March 23, 2003.
The state's evidence showed that on March 23, 2003, at approximately 5:20 a.m., petitioner entered a convenience store/gas station in Morris, Connecticut. After entering the store, petitioner produced a double edged knife, grabbed one of the store clerks and demanded money from the safe and the cash register. One of the clerks opened the cash drawer and petitioner removed a sum of money therefrom. Neither clerk was, however, able to open the safe and petitioner fled the store. After petitioner fled, one of the clerks called "911."
Approximately five minutes later, a vehicle containing petitioner was stopped by a Connecticut State trooper on the road leading away from the store. The trooper determined that the female operator had no license and also observed a bandana on the front passenger seat. The appearance of this bandana and the clothing worn by petitioner was consistent with the description of the mask and the clothing of the perpetrator. Petitioner was removed from the vehicle and during a patdown of his person, the trooper located a double edged knife. Found in petitioner's jacket pocket was the money stolen from the store. Thereafter both store clerks identified petitioner as the perpetrator and he was placed under arrest. Petitioner confessed to committing the robbery of the store in Morris as well as additional robberies in Bridgeport, Trumbull and Seymour.
On March 25, 2003, petitioner was arraigned in the judicial district of Litchfield on the Morris robbery and was thereafter held in lieu of bond. On or about April 11, 2003 and April 25, 2003, petitioner was arrested for the Trumbull and Bridgeport offenses, arraigned in the judicial district of Fairfield, Docket Numbers CR03-0188376 and CR03-0188758, and also held in lieu of bond. On April 23, 2003, petitioner was arrested on the Seymour offenses, arraigned in the judicial district of Ansonia-Milford, Docket Numbers CR03-0123881 and CR03-0123882, and held in lieu of bond.
Thereafter, on July 21, 2003, petitioner pleaded guilty to the Bridgeport cases and the matters were continued for sentencing on November 6, 2003. On August 12, 2003, petitioner pleaded guilty to the Seymour offenses and those matters were transferred to the judicial district of Fairfield for consolidation and sentencing on November 6, 2003. In the interim, petitioner had returned to Litchfield on August 1, 2003 and pleaded guilty to robbery in the first degree and conspiracy to commit robbery in the first degree. The Litchfield matter was then continued for sentencing in the judicial district of Litchfield on November 21, 2003.
On November 6, 2003, pursuant to the plea agreement, the Bridgeport court, Damiani, J. committed petitioner to the custody of the commissioner of correction for a total effective sentence of fourteen years execution suspended after ten years and probation for three years. The commissioner of correction determined that petitioner was entitled to 209 days of pretrial credit in CR03-0188376, 197 days of credit in CR03-0123881 and CR03-01123882 and 195 days of pretrial credit in CR03-0188758. The commissioner further calculated petitioner's release date to be April 24, 2013.
On November 21, 2003, petitioner returned to Litchfield and the court, Gill, J., in accordance with the plea agreement, committed petitioner to the custody of the commissioner of correction for a total effective sentence of twenty years execution suspended after ten years and probation for five years. The court further ordered that this sentence run concurrent to "other sentences imposed by courts of this state." Thereafter the commissioner determined that petitioner was entitled to 17 days of pretrial credit. The commissioner further calculated petitioner's release date to be November 3, 2013.
General Statute § 18-98d provides that once a defendant's presentence confinement credit is applied to a first sentence, those days are no longer available to reduce a defendant's subsequently imposed second sentence. Harris v. Commissioner of Correction, 271 Conn. 808 (2004). Thus when petitioner was sentenced in the judicial district of Fairfield on November 6, 2003, the commissioner applied the presentence credit accrued from April 11, 2003 to November 6, 2003 to the Bridgeport sentences, i.e., the first sentence. Consequently when petitioner was thereafter sentenced in the judicial district of Litchfield, presentence credit for the period April 11-November 6, 2003 was not available to reduce the length of petitioner's Litchfield sentence, i.e., the second sentence. Seventeen days of presentence credit were, however, applied to the Litchfield sentence which represented the period from the date of petitioner's arrest in the Litchfield case to the date of his arrest on the first Bridgeport case.
Petitioner was represented by Attorney Lawrence Peck in Litchfield and by Attorney Catherine Teitell in Bridgeport. Due to the passage of time between her representation of petitioner and the habeas trial, Teitell did not have a clear recollection of her representation of petitioner. Nor did she review her file prior to the trial. Teitell recalled that petitioner was an intelligent and educated client who had cases pending in Ansonia-Milford and Litchfield in addition to Bridgeport. Teitell testified that it is her practice when representing a client with cases in multiple jurisdictions to contact defense counsel in those jurisdictions to attempt to coordinate the disposition of a defendant's cases so that, if possible, a defendant gets concurrent time and maximum credit for presentence time. With respect to petitioner's Ansonia-Milford cases, Teitell was able to get those cases transferred to Bridgeport for consolidation. Teitell did not recall contacting Peck to effect a consolidation, but she recalls being aware that the offer in Litchfield was ten years to serve.
Teitell further testified that in 2003, the presiding judge in Bridgeport was Judge Damiani. According to Teitell, at sentencing Judge Damiani routinely gave unsentenced prisoners pretrial credit back to the first day on which they were incarcerated. Teitell further testified that in her experience there are various ways in which sentences from multiple jurisdictions can be structured to accord a defendant maximum presentence credit including (1) the imposition of a sentence in the first jurisdiction with a stay of execution until the date sentence is imposed in the second jurisdiction and (2) the imposition of sentence in one jurisdiction on the same day that a sentence is imposed in absentia in a second jurisdiction. In petitioner's case, Teitell never pursued either of these remedies.
Teitell testified that Judge Damiani took a different position with respect to sentenced prisoners who were brought to court and thereafter sentenced on a new warrant. In those cases, Judge Damiani would not give credit back to the first day of incarceration.
Teitell further testified that when an offer is made by the state to settle a defendant's case, it is her custom to inform the defendant of the "going rate" for the crimes charged. Teitell acknowledged that there are many factors which can affect the amount of time a defendant actually serves including disciplinary tickets received by the defendant and the nature of the offenses to which he pleads guilty. As a result, Teitell always informs a defendant that it is entirely up to the department of correction as to the actual time to be served.
Teitell defined "going rate" as 85% or 50% of the imposed sentence. The court notes that this "going rate" correlates to the parole eligibility levels of 85% and 50% established by General Statutes § 54-125a.
Lawrence Peck is an assistant public defender assigned to the judicial district of Litchfield. Peck has been a full-time public defender for three and one-half years and has practiced criminal defense for thirteen years. In the present case, sometime after petitioner's arrest, Peck was appointed to represent him. Thereafter, pursuant to the state's attorney's office's open file policy, Peck reviewed the police reports and witnesses' statements in petitioner's file. The state's attorney in Litchfield, David Shepack, offered petitioner a sentence of twenty years execution suspended after ten years. On several occasions, Peck discussed the state's evidence and the state's offer with petitioner and petitioner decided to accept the offer. In Peck's opinion, the state's offer was "a good deal."
According to Peck although it was understood that petitioner's Litchfield sentence would be concurrent to Bridgeport, Shepack's offer did not include the awarding of presentence credit to petitioner. Moreover, when queried by Peck, Shepack refused to lower his offer to compensate for the probable loss of petitioner's Litchfield presentence credit. Shepack further informed Peck he would object to any request that the sentencing court awarding double presentence credit. Like Teitell, Peck is aware there are ways to structure a sentence so that a defendant gets double presentence credit including a stay of execution on one sentence until the imposition of a second sentence and the imposition of sentences from multiple jurisdictions on the same day. From prior experience, Peck knew, however, that if Shepack objected, the court would never structure petitioner's sentence to award double presentence credit and therefore, at sentencing, Peck did not request it of the court. Peck never called Teitell to advise her that the state would object to the awarding of credit. At the habeas trial, no evidence was adduced as to whether Peck was aware of Judge Damiani's practice of awarding double credit for cases pending in multiple jurisdictions.
Peck further testified that the decision to plead guilty was petitioner's alone. Peck recalled that the plea canvass was "unusual," although he did not elaborate on this conclusion. Peck does not recall discussing with petitioner his right to withdraw his plea. Additionally petitioner never indicated to Peck that he wanted to appeal the Litchfield conviction.
Shepack testified that his offer to petitioner was based upon the nature of the offense, the strength of the state's case, petitioner's prior criminal history, the victims' ages, petitioner's age and the fact that petitioner had similar cases pending elsewhere. Shepack further testified that he never offered presentence jail credit as a part of petitioner's disposition and that if Peck had asked at sentencing for such credit, Shepack would have objected.
At the habeas trial petitioner testified that he is forty-seven years of age and has a bachelor's degree in biology. He further testified that he was employed as a computer programmer before his incarceration and that his present incarceration is not his first.
According to petitioner, Teitell told him that he would receive a sentence of ten years concurrent for all jurisdictions and that the total time he would have to serve was ten years. Petitioner also testified that in Litchfield, he was offered a plea bargain of twenty years execution suspended after ten years and probation for five years. Petitioner further testified that before his sentencing in Litchfield he discussed with Peck how much time he was going to get but never discussed with him moving to withdraw the plea or filing an appeal. According to petitioner, Peck told petitioner that the jail credit would be taken care of but Peck did not specify how this would be accomplished. Petitioner additionally testified that if he had known he was not going to get jail credit, he would have moved to withdraw his plea, that if he could have taken his case to trial, he would have and if he had known of his right to appeal, he would have appealed.
Additional facts will be discussed as necessary.
DISCUSSION A. INVALID GUILTY PLEA
Petitioner's first claim is that the trial court, Bryant, J., failed to properly canvass him of the constitutional rights he was waiving by pleading guilty in CR03-110622. Petitioner alleges that he was not informed of the following rights: trial before a court or jury; representation by counsel at trial; confrontation and cross examination of the state's witnesses at trial; the right to remain silent; and the right to testify on his behalf if he so chose. Petitioner claims that Judge Bryant failed both to advise him of the direct consequences of his plea and to follow the requirements of Practice Book § 39-19.
Respondent has raised procedural default as a defense to the claim in count one. According to respondent, prior to his sentencing in the criminal matter, petitioner failed to raise the claim in count one by means of Practice Book § 39-26. Petitioner's reply denies both that procedural default applies to the claim in count one and that he is procedurally defaulted. Petitioner argues that to apply procedural default in the circumstances of this case would itself violate due process. Given this procedural posture, the court must first address whether procedural default applies to petitioner's claim in count one.
Petitioner entered his plea in CR03-110622 on August 1, 2003 and was sentenced nearly 3 1/2 months later on November 21, 2003.
Practice Book § 39-26 states that: "A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed."
1
"Connecticut law is clear that a petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) good cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. See Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). When a petitioner fails to make that required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d. 1214 (1991)." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, cert. denied, 282 Conn. 901 (2007).
Petitioner relies on State v. Wright, 207 Conn. 276, 288-89 (1988), State v. Miller, 202 Conn. 463, 469, 469 (1987), and State v. Reid, 277 Conn. 764 (2006), as supporting his assertion that it would violate due process to apply procedural default in this case. These cases, however, provide no authority whatsoever for petitioner's assertion that the defense of procedural default does not apply in this case. Moreover the reasoning of the Supreme Court in Wright, Miller and Reid, lends support to respondent's claim that petitioner has procedurally defaulted as to count one.
In Wright, the defendant claimed the trial court judgment was unconstitutional because during the canvass of petitioner's guilty plea, the court failed to properly advise him of the mandatory minimum sentences for the crimes charged. "The defendant failed to raise this omission before the trial court but contend[ed] that the claim [wa]s reviewable [on direct appeal] under the doctrine of `exceptional circumstances' as enunciated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or in the alternative, under the plain error doctrine. The state concede[d] that the court failed to inform the defendant of the mandatory minimum sentences but contend[ed] that this omission d[id] not involve a fundamental constitutional right or the fairness of the proceeding and [wa]s therefore not reviewable.
Evans is a ". . . legal antecedent to [ State v. Golding, 213 Conn. 233 (1989)]." State v. Brown, 279 Conn. 493, 503 (2006). Because Golding modified the Evans rule, the two cases applied conjunctively are referred to as the constitutional bypass doctrine of Evans-Golding. See, e.g., Ghant v. Commissioner of Correction, 255 Conn. 1, 17 (2000).
"In the absence of exceptional circumstances involving either a recently discovered constitutional right or a showing that the defendant has been deprived of a fundamental constitutional right and a fair trial, claims which are raised for the first time on appeal will not be considered by this court . . . Those claims which implicate the knowing and voluntary nature of a plea are [however] reviewable under the exceptional circumstances doctrine of State v. Evans, supra." (Internal citations and quotation marks omitted.) State v. Wright, supra, 207 Conn. 285-87. After concluding that the Evans doctrine applied to the circumstances presented in Wright, the Supreme Court ". . . undert[ook a] limited review to determine if the claim, as set forth by the defendant, affect[ed] the knowing and voluntary nature of the plea." Id.
After reviewing the trial court's canvass, the Supreme Court concluded "that the plea was knowingly and voluntarily entered. Th[e] court [found] that the trial court's failure to advise the defendant of the mandatory minimum sentences did not, in itself, implicate constitutional rights, where the record reveals that the plea was intelligently and voluntarily made.
"The defendant [in Wright] contend[ed], in the alternative, that his claim [wa]s reviewable under the plain error doctrine. Where a trial court's action does not result in any manifest injustice, a defendant's claim under the plain error doctrine does not warrant review. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985). Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . Having concluded that the trial court's omission in failing to advise the defendant of the mandatory minimum sentences did not implicate constitutional rights and that the defendant knowingly and voluntarily entered his guilty plea, th[e] court [found] that the trial court's action did not result in any manifest injustice. The claim, therefore, d[id] not warrant review under the plain error doctrine." (Internal citations and quotation marks omitted.) State v. Wright, supra, 288-89.
In Miller, the defendant sought to have the Supreme Court address an unpreserved claim that the oaths administered to the voir dire and petit jury panels were constitutionally defective. The defendant sought ". . . review of his claims pursuant to (1) State v. Evans, [ supra] . . . which permits review of newly raised claims of error where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial, and (2) Practice Book 4185 (formerly 3063), which permits this court in the interest of justice [to] notice plain error not brought to the attention of the trial court." State v. Miller, supra, 202 Conn. 468.
Practice Book § 60-5 presently authorizes appellate review of unpreserved plain error.
The Miller court first concluded that there was no constitutional right to a particular oath. Thus, the defendant was putting ". . . a constitutional tag on a nonconstitutional claim . . ." Id., at 468. The court emphasized that "the Evans trial court bypass to [the Supreme Court] is a narrow constitutional path and not the appellate Champs-Elysees." Id., at 469, citing and quoting State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). The court also concluded that ". . . the defendant's claim [did not] warrant review under the plain error doctrine, because [it could not] conclude that the trial court's administration of the defective oaths resulted in any manifest injustice in this case . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . This [wa]s not such a case. [The court] conclude[d], therefore, that the defendant's acquiescence throughout trial constituted a waiver of any objection to the trial court's deviation from the statutory language governing the administration of oaths . . ." (Internal citations and quotation marks omitted.) State v. Miller, supra, 202 Conn. 469.
In Gooch, ". . . defendant relie[d] on State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as a basis for pressing this issue for the first time on appeal. [The court found] this reliance to be totally without foundation. The Evans rule is designed to protect fundamental constitutional rights. It deals with substance, not labels. Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. If a word to the wise will do it, then suffice it to observe that the Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees." State v. Gooch, 186 Conn. 17, 18 (1982).
Petitioner's final cited authority that procedural default does not apply is State v. Reid, supra, a recent Supreme Court decision directly addressing whether sentencing courts retain jurisdiction over post-conviction motions to withdraw a guilty plea pursuant to Practice Book §§ 39-26 and 39-27. The Supreme Court in Reid unequivocally held that sentencing courts, in the absence of a legislative or constitutional grant of continuing jurisdiction, lose jurisdiction over motions to withdraw upon the completion of the sentencing proceeding. Id., at 774-76. The Reid court went on to address ". . . whether there is any other jurisdictional basis for [an appellate tribunal] to consider the constitutional challenges that the defendant has raised. As the state repeatedly . . . conceded [in Reid], the defendant's claim regarding his plea could have been brought properly on direct appeal from the trial court's April 1997 judgment of conviction. Our rules of practice, however, provide that such appeals `must be filed within twenty days of the date notice of the judgment or decision is given'; Practice Book § 63-1(a); and, `[i]n criminal cases where the appeal is from a judgment of conviction, the appeal period shall begin when sentence is pronounced in open court.' Practice Book § 63-1(b). It is undisputed that the defendant [in Reid] did not file such a direct appeal in the prescribed period. Nonetheless, [the Supreme Court has] `recognized that where an appeal properly lies, but there has been a failure to follow the requirements of the statutes or rules, the appeal is ordinarily not void, but voidable . . . [The Supreme Court has] said broadly that defects in the method of taking an appeal do not go to the jurisdiction of the court, and . . . to hold otherwise would be to exalt technicalities above substance. Examples of defects of this kind are . . . the failure to take an appeal or file a writ of error within the proper time . . . LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969), quoting W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 275, p. 352.' (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 586 n. 18, 698 A.2d 268 (1997). Thus, [an appellate tribunal] would have jurisdiction to consider an untimely appeal by the defendant." State v. Reid, supra, 277 Conn. 777-78.
This court is quite familiar with Reid, as it was the court that denied the motion for permission to withdraw a guilty plea at issue in that appeal.
Reid involved a challenge to a guilty plea based on the court's failure to advise the defendant of the elements of the offense to which he was pleading. State v. Reid, 277 Conn. 764 (2006). The Supreme Court emphasized that it had ". . . previously . . . reviewed unpreserved claims [challenging the constitutionality of a guilty plea] . . . It is well established, however, that parties must affirmatively seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims . . ." (Internal citations and quotation marks omitted.) State v. Reid, supra, 277 Conn. 780-81. The defendant in Reid ultimately failed to show, as required by Golding, that the alleged constitutional violation clearly existed and deprived him of a fair conviction.
The Reid court here indicated in a footnote that: "We do not intend to suggest that we are retreating from our well settled law that, in order to obtain appellate review of a claim that a plea was not knowing, voluntary, or intelligent, it is encumbent on the defendant to raise the claim before the trial court by moving to withdraw the plea in accordance with Practice Book §§ 39-26 and 39-27. See State v. Commins, 276 Conn. 503, 514, 886 A.2d 824 (2005). The failure to do so, however, need not be fatal to review when constitutional claims are at issue and the record is adequate for review. See, e.g., State v. Williams, 60 Conn.App. 575, 578-79, 760 A.2d 948 (concluding that, despite defendant's failure to preserve claim by filing timely motion to withdraw, claim nevertheless is reviewable because it asserts violation of fundamental constitutional right; defendant failed, however, to demonstrate constitutional violation occurred), cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000); see also State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983) (same)." State v. Reid, 277 Conn. 764, 777 n. 15 (2006).
The Reid court then concluded that ". . . under the unique circumstances of this case, it [was] appropriate for [them] to exercise [their] supervisory powers pursuant to Practice Book § 60-2 and treat defendant's appeal as though he had filed a request for permission to file an untimely appeal from his judgment of conviction . . . [The court] recognize[d] that constitutional, statutory and procedural limitations are generally adequate to protect the right of the defendant and the integrity of the judicial system. [Their] supervisory powers are invoked only in the rare circumstances where these traditional protections are inadequate to ensure the fair and just administration of the courts." (Internal citations and quotation marks omitted.) Id., at 778. The Reid court concluded that the circumstances in that case were that rare and unique, and that the ". . . procedural posture should not preclude consideration of the defendant's constitutional claim." Id., at 779. The court decided that the record did not evidence a constitutional violation and, accordingly, that defendant's plea was voluntary and knowing.
Essentially, the facts involved defendant's various challenges to multiple convictions that formed the bases for his deportation. The motion to withdraw the plea at issue was filed a month after defendant was deported. State v. Reid, supra, 277 Conn. 779.
Based upon the foregoing review of Wright, Miller and Reid, this court concludes the cases relied upon by petitioner in fact stand for the proposition that appellate tribunals can review unpreserved claims even in untimely appeals, if properly raised under Golding or the plain error doctrine. While the habeas court has long been referred to as being a court of last resort, it is not an appellate court and cannot apply appellate doctrines such as Golding or plain error review. Wright, Miller and Reid underscore the very essence of procedural default: that without a showing of good cause for the procedural default and the resulting prejudice, a constitutional claim cannot be first raised via a habeas petition if the claim can first be raised either in the trial or appellate court. Solman v. Commissioner of Correction, supra, 99 Conn.App. 644.
See, e.g., Ex parte Royall, 117 U.S. 241, 253 (1886).
Petitioner's brief additionally argues that he is not required to show cause and prejudice for not filing a motion to withdraw his guilty plea pursuant to Practice Book § 39-26 because deliberate bypass, not procedural default, is the applicable standard. According to petitioner, he ". . . cannot be procedurally defaulted because Connecticut law does not clear[ly] support the existence of the alleged procedural requirement; The alleged procedural requirement is not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights; The state procedural rule is not mandatory but only a matter of discretion, regardless of how that discretion was exercised in the particular case. See Hertz and Liebman, Federal Habeas Corpus Practice and Procedure, (Fifth ed.), § 26.2(b)." (Internal quotation marks omitted.) Petitioner's Brief, p. 7. Petitioner appears to concede that in federal court cause and prejudice would be the applicable standard in reviewing the claim he presents here. Cf. Petitioner's Brief, p. 8. According to petitioner, cause and prejudice is, however, inapplicable to the present case and deliberate bypass remains the standard "since neither the [Connecticut] Supreme nor Appellate Court has cited to Coleman [v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)]." Id.
The United States Supreme Court set out the federal standard in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), "[w]e now make it explicit: in all cases in which a state prisoner has defaulted his claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay [v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)] was based on a conception of federal/state relations that undervalued the importance of state procedural rules. The several cases after Fay that applied the cause and prejudice standard to a variety of state procedural defaults represent a different view. We now recognize the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them. Cf. McCleskey v. Zant, 499 U.S. 467, 491 (1991) (`Though Fay v. Noia, supra, may have cast doubt upon these propositions, since Fay, we have taken care in our habeas corpus decisions to reconfirm the importance of finality')." Coleman v. Thompson, supra, 501 U.S. 750.
Moreover according to petitioner, deliberate bypass applies in the instant matter because the Connecticut Supreme Court in McClain v. Manson, 183 Conn. 418, 429 n. 15, 439 A.2d 430 (1981), noted that because "[ Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), left open the question whether its `cause and prejudice' standard would apply in a Fay [v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)] type case where the failure to take an appeal was involved, the ultimate responsibility that is upon the defendant himself to decide whether an appeal is to be taken persuades us to apply the `deliberate bypass' standard of Fay to this case." Petitioner's Brief, p. 8.
Fay type cases are those habeas cases involving "decisions of the sort entrusted to a defendant himself" such as "whether to plead guilty, to forego the assistance of counsel or to refrain from appeal." McClain v. Manson, supra, 183 Conn. 428 n. 15.
Petitioner correctly points out that Coleman has not been cited to by a Connecticut appellate tribunal. This lack of citation is, however, not authority for a proposition that is completely contrary to the United States Supreme Court decision in Coleman and Connecticut case law. Contrary to petitioner's argument, Connecticut case law quite clearly shows that there is a requirement that constitutional challenges, based on the record and not requiring any additional fact finding, made for the first time in a habeas petition, must show cause and prejudice if procedural default is raised as a defense. Jackson v. Commissioner, 227 Conn. 124, 132 (1993). Moreover, the cause and prejudice standard has completely supplanted the deliberate bypass standard even in Fay type cases. See, e.g., Quint v. Commissioner of Correction, 99 Conn.App. 395 (2007) (procedural default applies to cases involving a defendant's decision to represent himself). Finally when procedural default is raised, proof of cause and prejudice is mandatory and not a matter of discretion. See Johnson v. Commissioner, supra, 218 Conn. 409; Solman v. Commissioner, supra, 99 Conn.App. 644 (2007).
Petitioner's claim in count one is precisely the kind of claim that should first be raised at the trial court level or, in the alternative, on appeal. A review of the transcript in CR03-110622 clearly shows that the plea canvass fell below the constitutionally required minimum. The canvassing court did not advise petitioner of his right against self-incrimination, his right to trial by jury, and his right to confront his accusers, nor was the substance of those rights sufficiently conveyed to petitioner. See State v. Badgett, 200 Conn. 412, 415-20, cert. denied, 479 U.S. 940, 107 S.Ct. 473, 93 L.Ed.2d 373 (1986). Moreover, this habeas court may not presume from the silent transcript that petitioner waived these fundamental constitutional rights. Id. See also, State v. Ouellette, 271 Conn. 740, 752 (2004). Petitioner thus had a basis in fact for seeking to withdraw his guilty plea in accordance with § 39-26 because the guilty plea, as a matter of record, was accepted without the constitutionally prescribed minima.
The court's canvass in its entirety consisted of the following inquiries: whether petitioner was under the influence of any drugs, alcohol or other substances that might impair his ability to understand the proceedings; whether anyone promised him anything or threatened him to induce his plea; whether the guilty plea was a free and voluntary act; whether his attorney had explained the charges, including the elements of each offense and the maximum and minimum penalty for each offense, and whether petitioner understood counsel's explanation thereof; whether petitioner had any questions whatsoever; whether petitioner currently was on parole or probation; whether petitioner was a citizen of the United States; and whether petitioner agreed with the facts as presented by the state's attorney. After receiving the appropriate responses from petitioner to these inquiries, the court accepted the plea after finding it was knowing, voluntary and intelligent.
Petitioner did not, however, although he had ample time, seek to withdraw his guilty plea at any time during the 3 and 1/2 months between acceptance of the plea and sentencing. Had he done so, the judicial authority would not have had discretion to deny the withdrawal if petitioner had proven one that "[t]he plea was accepted without substantial compliance with Section 39-19[.]" Practice Book § 39-27(1). State v. Badgett, supra, 200 Conn. 418. Although, petitioner could not file a motion to withdraw subsequent to the imposition of sentence, an appeal challenging the validity of the plea canvass would have been reviewed ". . . despite the absence of a timely motion to withdraw the plea." State v. Badgett, supra, 200 Conn. 418-19; see also State v. Williams, supra, 60 Conn.App. 579-81, and despite the absence of a timely appeal. State v. Reid, supra 277 Conn. 777-78.
Practice Book § 39-19 states that: "The judicial authority shall not accept the plea without first addressing the defendant personally and determining the he or she fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) the fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and (5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself."
Reid and the present case are indistinguishable. Both Reid and the present case involve a claim that a plea of guilty was accepted by the trial court without substantial compliance with the defendant's due process rights and Prac. Bk. § 39-19. Additionally both Reid and petitioner failed to move to withdraw their pleas of guilty prior to sentencing and both failed to take a timely appeal. Notwithstanding these procedural deficiencies, in light of the constitutional claims at issue and the fact the record was adequate for review, the Supreme Court in Reid decided the merits of Reid's appeal. In the present case, petitioner makes the exact same constitutional claims as Reid and, as in Reid, relies solely upon the record from the trial court. It is clear from the holding in Reid, petitioner to the present day minimally could seek permission to file an untimely appeal and obtain appellate relief. Petitioner instead has opted to seek relief for the first time by way of writ of habeas corpus.
Essentially, this means that an appellate tribunal is the state court of last resort. While both habeas courts and appellate tribunals have been referred to as courts of last resort, O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999), Ex parte Royall, supra, Ex Parte Milligan, 71 U.S. 2, 132 (1866), petitioner properly should seek relief via direct appeal prior to seeking relief via a habeas corpus petition. See State v. Reid, supra, 277 Conn. 777-78.
Petitioner should have timely raised his claim either in the trial court or even belatedly on appeal. This procedural requirement is firmly established and regularly followed. While petitioner claims that procedural default does not apply to the facts and circumstances presented in the present habeas case, petitioner has failed to cite to any authority which supports this novel proposition. The court finds, based on all the foregoing, that the affirmative defense of procedural default applies to petitioner's claim in count one and that he, therefore, must allege and affirmatively show the required cause and prejudice for the default.
2
There are several ways in which petitioner alleges cause for the procedural default: "a) `actions of the state, state courts, or other officials hindered compliance with the procedural rule or made compliance impracticable[;]' b) petitioner's counsel was responsible for the default[;] c) counsel forwent a meritorious claim against the known wishes of the client[;] and d) `a judge, prosecutor, court clerk, or some other official interfered with the petitioner's ability to comply — or failed to take reasonable steps to facilitate the petitioner's compliance — with the applicable state procedural rule.'" Petitioner's Reply, ¶ 4.
Petitioner did not cite the original source of the quoted language in single quotation marks.
At the habeas trial there was no evidence presented as to the first and fourth alleged causes. Petitioner has presented nothing to this court to substantiate that there were actions of the state, state courts, or other officials that hindered or interfered with petitioner's ability to comply with the procedural rules or made compliance impracticable. Thus, the court finds the first and fourth alleged causes to be utterly unsubstantiated and abandoned. The third alleged cause is that Peck forewent a meritorious claim (i.e., the constitutionally defective plea canvass) against petitioner's known wishes. At the habeas trial petitioner did not present any evidence even remotely indicating that he made known to Peck that he somehow wanted to challenge the defective plea canvass. Thus the third alleged cause is also unsubstantiated and deemed abandoned. That leaves only the second alleged cause, the quasi-cryptic ineffective assistance of counsel allegation that Peck was responsible for the default.
Petitioner does not allege as cause that Peck rendered deficient performance by being responsible for the default. Instead, petitioner merely alleges Peck caused the default. The distinction between these two allegations at first may appear nuanced but is crucial, for causing the default does not automatically mean that counsel's performance was deficient; and only deficient performance can excuse the default. "Cause turns on `whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.' Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The cause and prejudice standard . . . `is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance.' Valeriano v. Bronson, 209 Conn. 75, 83 (1988)." Bowers v. Commissioner of Correction, 33 Conn.App. 449, 451-52, cert. denied, 228 Conn. 929 (1994). In short,"[a]ttorney error short of ineffective assistance of counsel does not constitute cause for a procedural default." Murray v. Carrier, supra, 477 U.S. 488.
At the habeas trial, Peck testified that he had practiced criminal defense for thirteen years, three and one-half of which were as an assistant public defender. Peck testified that it was petitioner's decision to accept the plea agreement offered by the state and to plead guilty. He further testified that the plea canvass was "unusual," though Peck did not elaborate as to what "unusual" meant. Peck also did not recall discussing with petitioner his right to withdraw his plea prior to sentencing and, according to Peck, petitioner never indicated to him that he wanted to appeal the Litchfield conviction. There was no testimony presented that Peck discussed with petitioner that he could or should challenge the plea canvass by way of an appeal.
It is evident that petitioner hoped for and attempted to resolve his various criminal matters via a global resolution. The Litchfield charge, however, ultimately was not part of such a global resolution. The state's attorney in Litchfield made an offer to petitioner to settle the Litchfield case which petitioner found acceptable. After the Litchfield plea agreement was arrived at, petitioner entered his guilty plea and the plea agreement was put on the record by the state's attorney. The court then canvassed petitioner and continued the matter for sentencing, which occurred about 3 and 1/2 months later. Thereafter on the date of sentencing, the court imposed the sentence agreed to by petitioner and the state.
Petitioner essentially is asking this court to infer that petitioner has proved it is per se deficient performance for counsel to not challenge a defective canvass. Petitioner unquestionably had a basis in fact for withdrawing the plea prior to sentencing and could also have challenged the plea via appeal. There is, however, neither any reason nor evidence to suggest petitioner's Litchfield sentence would have been any different had he successfully sought to withdraw his plea and been resentenced after a non-defective plea. In ". . . Strickland v. Washington, supra, 466 U.S. 687, . . . the court . . . held that criminal defendants have a sixth amendment right to `reasonably effective' legal assistance. Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness; . . .; and (2) counsel's deficient performance prejudiced the defendant in that there was a reasonable probability that the result of the proceeding would have been different . . ." (Internal citations omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 8 (2000).
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, supra, 466 U.S. 690.
The challenged conduct is Peck's failure to file a motion to withdraw the plea or raise the plea invalidity issue on appeal. The basis for such a motion or appeal would have been the defective plea canvass, not the hoped-for jail credit that was never promised and not part of the plea agreement. It must be reiterated that petitioner wanted to accept the state's offer and resolve the matter via guilty plea. Given that jail credit was not part of the Litchfield plea agreement, there would be no reason for trial counsel to move to withdraw petitioner's guilty plea prior to sentencing. Thus petitioner has failed to show that Peck's representation fell below an objective standard of reasonableness or that the result of the proceeding would have been different.
There also was no reason for Peck to consult with petitioner about taking an appeal. As Ghant indicated, ". . . counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal . . . or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known . . . Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
"The second part of the Strickland test . . . requires the defendant to show prejudice from counsel's deficient performance . . . [T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. The court further articulated that whether a given defendant has made the requisite showing will turn on the facts of a particular case . . . [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination . . ." (Emphasis added; internal citations and quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 255 Conn. 9-10, citing and quoting Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000).
In the present case, it is uncontroverted that petitioner desired to plead guilty and accept the state's offer. Thereafter petitioner received the agreed-upon sentence. Notwithstanding petitioner's testimony that he would have appealed if he had known he would not receive jail credit, there is no evidence to suggest petitioner's Litchfield sentence would have been different had he successfully appealed. Thus a rational defendant would not have wanted to appeal the defective canvass issue. Moreover, Peck had no reason to think that petitioner would want to appeal nor did petitioner in any way indicate to Peck that he wanted to appeal. It is clear that petitioner here is attempting to use the defective canvass issue solely as a vehicle to obtain jail credits to which he was not entitled under the plea agreement.
Petitioner agreed with the state to a sentence of ten years to serve and the trial court imposed the agreed-upon sentence. Given the facts of this case, and judging the reasonableness of Peck's conduct, viewed as of the time of Peck's conduct, the court cannot conclude that Peck rendered deficient performance or that petitioner was prejudiced. Consequently, petitioner has failed to prove ineffective assistance of counsel as the cause and prejudice and has procedurally defaulted as to count one.
B. VIOLATION OF PLEA BARGAIN AGREEMENT
Petitioner's claim in the second count is that there was an agreement that the sentence he would receive in Litchfield, docket number CR03-110622, would be fully concurrent to the sentences imposed in Bridgeport. Petitioner alleges that the Litchfield sentence is not fully concurrent because there are presentence confinement credits applied to the Bridgeport cases that are not being applied to the Litchfield case. Therefore, according to petitioner, the sentence he is serving in the Litchfield case is an unconstitutional lengthening of his confinement, in violation of his right to due process under the federal and state constitutions, and in violation of the plea agreement.
Respondent has also raised procedural default as to the claim in count two. Petitioner does not allege any cause and prejudice and denies that procedural default applies to the plea agreement violation claim. As already indicated above, it is well established that constitutional claims raised for the first time in a habeas corpus proceeding must show good cause for the procedural default (i.e., the reason for failing to raise the claim at trial or on direct appeal), and the prejudice from the alleged constitutional violation. Whether or not petitioner could have raised the count two claim at the trial court level, he most assuredly could have done so by way of an appeal from the criminal conviction. See, e.g., State v Reid, 204 Conn. 52, 58-59 (1987), State v. Littlejohn, 199 Conn. 631, 643-44 (1986), State v. Lasher, 190 Conn. 259, 265-68 (1983), State v. Nelson, 23 Conn.App. 215, 218-19, cert. denied, 216 Conn. 826 (1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991).
Consequently, the court finds the petitioner has procedurally defaulted on the claim in count two. Petitioner also has failed to allege and affirmatively show the required cause and prejudice and the court will not address the claim on the merits.
The court nevertheless notes that upon being sentenced in Bridgeport on November 6, 2003, petitioner's status changed from being held in lieu of bond to being a sentenced prisoner. The respondent calculated and applied the appropriate amount of presentence confinement credits to the dockets in which petitioner was sentenced on November 6, 2003. In Bridgeport docket number CR03-188376, which received the most credit, respondent applied 209 days of presentence confinement credit, reflecting the time period of April 11, 2003 through November 6, 2003. The 209 days applied to docket CR03-188376 then became unavailable to be applied to a subsequently imposed sentence such as the Litchfield sentence. See Harris v. Commissioner of Correction, 271 Conn. 808 (2004), Cox v. Commissioner of Correction, 271 Conn. 844 (2004), and Hunter v. Commissioner of Correction, 271 Conn. 856 (2004).
Petitioner claims that he understood the Litchfield sentence to be fully concurrent with the Bridgeport sentences. While petitioner does not elaborate on what "fully" exactly means, it is clear from the assertions in count two that the implication of "fully concurrent" means that petitioner would discharge on the very same day from all dockets and sentences. At the habeas trial, Shepack and Peck both credibly testified that the plea agreement did not include a provision that petitioner be awarded presentence credit. Petitioner testified that prior to the plea, he and Peck never discussed the issue of presentence credit. Petitioner further testified on the day of sentencing, Peck told him only that his presentence credit "would be taken care of, but [Peck] didn't say how." Significantly petitioner never testified that the court, Shepack or Peck informed him that all of his presentence credit would be applied to the Litchfield case or that he would discharge from all of his sentences on the same day.
"The validity of plea bargains depends on contract principles." State v. Garvin, 242 Conn. 296, 314 (1997). "Thus, [p]rinciples of contract law and special due process concerns for fairness govern our interpretation of plea agreements . . ." State v. Stevens, 278 Conn. 1, 8-9 (2006). "When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the [plea] agreement or to permit the opportunity to withdraw the guilty plea." State v. Revelo, 256 Conn. 494, 516-17, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001). "[T]he primary goal of contract interpretation is `to effectuate the intent of the parties . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.' (Internal quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn.App. 748, 761, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002)." State v. Lopez, 77 Conn.App. 67, 78 (2003), aff'd, 269 Conn. 799 (2004).
In the present case, there is no evidence that the plea agreement between petitioner and the state contemplated a "fully concurrent" sentence. The plea agreement obligated the state to a recommended sentence of twenty years, execution suspended after ten years, with five years probation. It also required that the Litchfield sentence run concurrent to the Bridgeport sentences. The plea agreement did not explicitly address the issue of petitioner's presentence credit and notwithstanding the plea agreements' use of the word "concurrent," the agreement was not ambiguous as to the issue of presentence credit. In Connecticut the commissioner of correction is required to calculate all sentences in accordance with relevant statutes, including § 18-98d, which governs presentence confinement credit. The dictates of § 18-98d are therefore an implicit provision of every plea agreement between a defendant and the prosecution including the plea agreement in the underlying case. Thus petitioner's sentence as imposed by Judge Gill fully comported with the terms of the parties' agreement.
The court recognizes that the prosecution and a defendant can agree to structure a defendant's sentences such that his sentences in multiple jurisdictions take effect on the same day thus ensuring the defendant receives maximum presentence credit. Such an agreement, by definition, would be an explicit provision of the parties' plea agreement. There is no evidence in the present case that petitioner ever had such an agreement with the prosecution.
General Statute § 18-98d(a)(1) provides in relevant part: "Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person's presentence confinement . . ."
Petitioner has made the allegation and then completely failed to prove that there in fact was an agreement that in any way addressed the awarding of presentence confinement credit to the Litchfield docket. The claim in count two is not only procedurally defaulted, but also unsubstantiated, wholly without merit and borders on the frivolous.
C. ONE DAY CREDIT PURSUANT TO GEN. STAT. § 18-98d(a)(2)(A)
Count three alleges petitioner should receive one day of presentence confinement in accordance with Gen. Stat. § 18-98d(a)(2)(A). That section provides in part that: "Any person convicted of any offense and sentenced on or after October 1, 2001, to a term of imprisonment who was confined to a police station or courthouse lockup in connection with such offense because such person was unable to obtain bail or was denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence in accordance with subdivision (1) of this subsection equal to the number of days which such person spent in such lockup, provided such person at the time of sentencing requests credit for such presentence confinement. Upon such request, the court shall indicate on the judgment mittimus the number of days such person spent in such presentence confinement." (Emphasis added.)
Petitioner seeks as relief that he be credited with one day of presentence confinement credit in the Litchfield docket, CR03-110622. The court first notes that a review of the transcript of the sentencing proceeding shows no such request was made of Judge Gill. See Petitioner's Exhibit 9, Transcript of November 21, 2003. Second, the court has no authority, given the facts, to award the one day of credit petitioner seeks. This court's ability to provide relief is constrained by the evidence before it and the legal claims raised in the complaint. Ajadi v. Commissioner of Correction, 280 Conn. 514, 549 (2006); Oliphant v. Commissioner of Correction, 274 Conn. 563, 570 (2005); Cole v. Commissioner of Correction, 102 Conn.App. 595, 599-600 (2007). Petitioner neither requested this credit in the trial court nor has petitioner alleged here that the failure to make such a request was ineffective assistance of counsel. Accordingly the court has no authority to grant the relief requested. Thus the claim in count three is without merit.
D. DENIAL OF RIGHT TO APPEAL
Petitioner's fourth and final claim is that he was denied his statutory right to appeal from the conviction in CR03-110622. Petitioner alleges that he was not provided with notice of his right to appeal.
Practice Book § 43-30 states in relevant part that: "Where there has been a conviction after a trial, . . . it shall be the duty of the clerk of the court, immediately after the pronouncement of the sentence . . . to advise the defendant in writing of such rights as such defendant may have to an appeal . . ." (Emphasis added.) General Statutes § 54-95(a) provides that "[a]ny defendant in a criminal prosecution, aggrieved by any decision of the Superior Court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal . . ." (Emphasis added.)
There is no Practice Book or statutory requirement mandating that a defendant be provided with a notice of the right to appeal from a conviction arising from a guilty plea. Cf. DuPerry v. Kirk, 90 Conn.App. 493, 506 n. 3 (2005), cert. denied, 277 Conn. 921 (2006). The claim in count four is entirely without merit.
CONCLUSION
The petition for a writ of habeas is denied. Petitioner's counsel shall prepare and file a judgment file within thirty days.