HUERTAS v. COMMISSIONER OF CORRECTION (2013)

The respondent, the commissioner of correction, appeals¹ from the judgment of the habeas court granting the petition for a writ of habeas corpus filed by the petitioner, Jourdan E. Huertas, and awarding him seventeen days of presentence confinement credit. In light of our conclusion in the companion case that we decide today, Gonzalez v. Commissioner of Correction, 308 Conn. 463, A.3d (2013), concerning the right to effective assistance of counsel at the arraignment stage and during related proceedings pertaining to the setting of bond and credit for presentence confinement, as well as the fact that, in the present case, the petitioner's trial counsel had been ineffective in his failure to request an increase in bond on two prior charges so that the petitioner could be credited for presentence confinement credit on those charges, we conclude that the habeas court properly granted the petition. Accordingly, we affirm the judgment of the habeas court.

The following undisputed facts and procedural history are relevant to the respondent's claim on appeal. On September 27, 2010, the parties appeared for the petitioner's habeas trial and entered into a stipulation in which they agreed that if the petitioner's counsel had requested an increase in bond on April 28, 2006, the petitioner would have received an additional seventeen days of presentence confinement credit and, further, that there was no strategic reason for his counsel not to have made such a request.²

Finding that the facts of this case were indistinguishable from those set forth by the Appellate Court majority in the companion case Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 1 A.3d 170 (2010), the habeas court granted the petitioner's petition for a writ of habeas corpus. This appeal followed. On appeal, the respondent asserts that the habeas court improperly granted the petitioner's petition for a writ of habeas corpus when that court improperly concluded that the petitioner had a sixth amendment right to the effective assistance of counsel for a matter pertaining to presentence confinement because, the respondent argues, the calculation of presentence confinement credit is not a critical stage of the proceedings. The respondent further claims that the habeas court improperly concluded that the petitioner had met his burden of demonstrating that the performance of his counsel was deficient and that he was prejudiced by that deficient performance.

We agree with the habeas court that the facts of this case are indistinguishable from those in Gonzalez. The only minor difference is that the parties in the present case stipulated that there was no strategic reason for the petitioner's counsel not to have requested a bond increase in the first arrest.³ Accordingly, on the basis of our conclusion in Gonzalez v. Commissioner of Correction, supra, 308 Conn. at 484, “that the petitioner had a sixth amendment right to effective assistance of counsel at the arraignment stage in which proceedings pertaining to the setting of bond and credit for presentence confinement occurred because it is clear that potential substantial prejudice to the petitioner's right to liberty inhered to the arraignment proceedings and the petitioner's counsel had the ability to help avoid that prejudice by requesting that the bond on [previous arrests] be raised at the arraignment on [a subsequent] arrest,” we conclude that the habeas court properly determined that the petitioner in the present case was entitled to the effective assistance of counsel at the plea hearing and sentencing. We further conclude, on the basis of our reasoning in Gonzalez v. Commissioner of Correction, supra, at 484–85, that the failure of the petitioner's counsel to request an increase in the bond on his first arrest constituted deficient performance and that such performance prejudiced the petitioner by exposing him to an additional seventeen days in jail for which he received no credit.

The judgment is affirmed.

In this opinion ROGERS, C. J., and NORCOTT and VERTEFEUILLE, Js., concurred.

For the reasons set forth in my concurring opinion in Gonzalez v. Commissioner of Correction, 308 Conn. 491, A.3d (2013) (Palmer, J., concurring), I also concur in the result that the majority reaches in the present case.

Like the majority, I agree that the facts of the present case are largely analogous to those of Gonzalez v. Commissioner of Correction, 308 Conn. 463, A.3d (2013), which this court also decides today. Thus, for the reasons set forth in my dissenting opinion in Gonzalez, I respectfully dissent in the present case. Id., at 495 (Zarella, J., dissenting).

Specifically, as I explained more fully in Gonzalez, I am not persuaded that an attorney's failure to request that an accused's bond be increased becomes, by association, a critical stage of the prosecution simply because such a request conceivably could have been raised during a proceeding that was itself a critical stage. Id., at 497 (Zarella, J., dissenting). To an even greater extent than in Gonzalez, I am troubled by the manner in which the majority frames the relevant proceeding for purposes of its critical stage analysis and its conclusion that the petitioner in the present case, Jourdan E. Huertas, “was entitled to the effective assistance of counsel at [his] plea hearing and sentencing .” As I explained in Gonzalez, I would focus on whether a bond hearing, rather than an arraignment or other proceeding, such as one involving the entry of a plea or sentencing, is a critical stage. The majority, however, declines to consider whether a bond hearing itself is a critical stage, instead preferring to link it to other proceedings, such as the plea hearing in the present case, even though bond hearings often occur independently of arraignments or plea hearings. In my view, the present case highlights the problem with the majority's approach to an even greater degree than Gonzalez because the proceeding at which the purportedly deficient representation occurred involved the entry of a guilty plea. It is difficult to imagine how the failure to address bond at such a proceeding would “derogate from the accused's right to a fair trial.”¹ United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Thus, because I am not persuaded that a bond hearing is a critical stage; see Gonzalez v. Commissioner of Correction, supra, 308 Conn. at 496 (Zarella, J., dissenting); I would likewise “hold that the petitioner was not denied his constitutional right to the effective assistance of counsel at the time of the purported violation and would reverse the judgment of the [habeas] [c]ourt.” Id.

In addition, as this court previously has explained, presentence confinement credit is a legislative grace, not a constitutional right. E.g., Hammond v. Commissioner of Correction, 259 Conn. 855, 878, 792 A.2d 774 (2002). Because our case law places bond matters within the trial court's sound discretion, as informed by our rules of practice, I cannot agree with the implicit premise that an accused is entitled to an increase in bond upon request. See Gonzalez v. Commissioner of Correction, supra, 308 Conn. at 498 (Zarella, J., dissenting). See generally Practice Book § 38–4. Accordingly, because I would not conclude that the petitioner was deprived of his right to counsel at a critical stage of the prosecution, I would reverse the judgment of the habeas court.

EVELEIGH, J.