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*********************************************** 
ANDRE DENNIS v. COMMISSIONER

OF CORRECTION

(AC 39874)

Keller, Elgo and Eveleigh, Js.

Syllabus

The petitioner sought a writ of habeas corpus, claiming that his trial counsel

had provided ineffective assistance by failing to request a stay of execution that resulted in the petitioner’s loss of sixteen days of presentence

incarceration credits. Pursuant to a plea agreement on various charges

under multiple docket numbers in the Waterbury Superior Court, the

petitioner admitted to having violated his probation and pleaded guilty

under the Alford doctrine to criminal violation of a restraining order,

criminal violation of a protective order and the crime of assault in the

third degree. At the plea and sentencing hearing, the trial court canvassed

the petitioner regarding the plea agreement and provided the prosecutor,

trial counsel and the petitioner with the opportunity to present any

reasons why it should not be accepted. When no reasons were given,

the court accepted the plea agreement and sentenced the petitioner

in accordance with the state’s recommendation. Thereafter, the court

inquired whether any other matters needed to be addressed prior to the

conclusion of the hearing, and no requests were made. Later that day,

however, trial counsel filed a motion for presentence incarceration credits but did not request a stay of execution of the sentence. Approximately

three weeks later, the petitioner, pursuant to a separate plea agreement,

pleaded guilty under the Alford doctrine to various charges in the Meriden Superior Court and was sentenced to a term of incarceration that

was to run concurrently with the Waterbury sentence. The habeas court

rendered judgment denying the habeas petition, concluding that the

petitioner failed to establish that trial counsel had rendered ineffective

assistance. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held:

1. Contrary to the claim of the respondent, the Commissioner of Correction,

the petitioner’s appeal was not moot, as practical relief remained available to the petitioner despite that fact that he was no longer incarcerated;

if this court reversed the habeas court’s judgment, the benefit to the

petitioner would be the retroactive modification of his definite sentence

so as to incorporate the sixteen days of presentence incarceration credits, thereby advancing his effective release date and reducing the amount

of time he is required to spend on special parole.

2. The habeas court abused its discretion in denying the petition for certification to appeal; the resolution of the petitioner’s underlying claim that

trial counsel rendered ineffective assistance involved issues that were

debatable among jurists of reason, could have been resolved by a court

in a different manner and were adequate to deserve encouragement to

proceed further.

3. The habeas court improperly concluded that the petitioner failed to establish that trial counsel rendered ineffective assistance by failing to request

a stay of execution of the Waterbury sentence, as there was no reasonable strategic reason for trial counsel not to request a stay of execution

after the sentence had been imposed: although this court deferred to

the habeas court’s determination that trial counsel credibly testified that

his failure to request a stay of execution was the result of a strategic

decision to move through the sentencing hearing without incident in

order to not jeopardize the trial court’s acceptance of the plea agreement,

this court, as a matter of law, concluded that trial counsel’s decision

was not the product of reasonable professional judgment, as it was not

reasonable for him to believe that once the court accepted the plea

agreement, the petitioner would have been able to withdraw it because

he likely would have been barred from doing so pursuant to the relevant

rule of practice (§ 39-27), and there was no reasonable basis for trial

counsel to believe that the court could have modified the petitioner’s

sentence, once imposed, in a way that would have jeopardized the

plea agreement; moreover, in light of Gonzalez v. Commissioner of
Correction (308 Conn. 463), which held that in the absence of a strategic

justification, the failure to request a bond increase that would have

allowed the petitioner to earn credit for a period of presentence incarceration constituted deficient performance, the failure of trial counsel here

to request a stay of execution of the Waterbury sentence once it had

been imposed constituted deficient performance.

4. The petitioner’s claim that he was prejudiced by trial counsel’s deficient

performance in failing to request a stay of execution of the Waterbury

sentence because it resulted in his loss of sixteen days of presentence

incarceration credits was supported by the record; the undisputed evidence in the record indicated that the petitioner would have been able

to apply sixteen additional days of presentence incarceration credits to

his definite sentence had a stay of execution been requested and

accepted, and, therefore, the habeas court abused its discretion in denying the amended petition for a writ of habeas corpus.

Argued September 25, 2018—officially released May 7, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Reversed; judgment directed.

Nicholas Marolda, assigned counsel, with whom was

Temmy Ann Miller, assigned counsel, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Rebecca A. Barry, assistant state’s attorney, for the appellee (respondent).
Opinion

EVELEIGH, J. The petitioner, Andre Dennis, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the habeas court (1)

abused its discretion in denying his petition for certification to appeal and (2) incorrectly concluded that he

failed to establish that his trial counsel rendered ineffective assistance when trial counsel failed to request a

stay of execution that resulted in the loss of sixteen

days of presentence incarceration credits. We agree

with the petitioner that the habeas court improperly

denied his petition for certification to appeal, and, after

considering the merits of his claim, we conclude that

the habeas court incorrectly determined that trial counsel did not render deficient performance when he failed

to request a stay of execution of the petitioner’s prior

sentence. We, therefore, reverse the judgment of the

habeas court.

The record discloses the following facts and procedural history. On July 30, 2015, the petitioner, who at

the time was represented by Attorney Michael Richards

(trial counsel), entered into a plea agreement at the

Superior Court in Waterbury on a series of charges

resulting in a total effective sentence of three years

incarceration, followed by five years of special parole.1

As part of the Waterbury plea agreement, the petitioner

pleaded to the following: Admission of two counts of

violation of probation in Docket Nos. CR-12-0410035-S

and CR-12-0412661-S, and guilty under the Alford doctrine2

to criminal violation of a restraining order in

violation of General Statutes § 53a-223b in Docket No.

CR-14-0423367-S, criminal violation of a protective

order in violation of General Statutes § 53a-223 and

the crime of assault in the third degree in violation of

General Statutes § 53a-61 in Docket No. CR-14-0424236-

S, and criminal violation of a protective order in violation of § 53a-223 in Docket No. CR-15-0432507-S.

Prior to accepting the pleas, the court canvassed the

petitioner with respect to the plea agreement and found

that it was entered into voluntarily and with the assistance of competent counsel. After accepting the pleas,

but prior to imposing sentence, the court asked the

petitioner if he would like to address the court. The

petitioner stated that he ‘‘just want[ed] to make sure

all [his] jail credit [would be] applied to all [his] dockets,

even for . . . [the] Meriden cases.’’ The court

responded that because the petitioner’s other cases

were pending in a different jurisdiction, it had no control over them, but stated: ‘‘What I can do is give you

credit for any time you were incarcerated during the

pendency of these cases that are in this jurisdiction.’’3

The court then sentenced the petitioner to a total effective sentence of three years incarceration, followed by
five years of special parole in accordance with the

state’s recommendation. Prior to the conclusion of the

proceeding, the court again asked whether anything

else needed to be addressed before the conclusion of

the proceeding. Trial counsel thanked the prosecutor

and the court but made no further requests. Later that

day, trial counsel filed a motion for presentence incarceration credits with the court but did not request a

stay of execution of the sentence. On the following day,

July 31, 2015, the court granted the motion.

Approximately three weeks later, on August 20, 2015,

at the Superior Court in Meriden, as part of a separate

plea agreement that stemmed from separate charges,

the petitioner was sentenced to a total effective sentence of two years of incarceration, which was to run

concurrently with the Waterbury sentence.4 As part of

the Meriden plea agreement, the petitioner entered

Alford pleas to the following charges: One count of

criminal violation of a protective order in violation of

§ 53a-223 in Docket No. CR-14-0277421-S and one count

each of the crimes of assault in the third degree in

violation of General Statutes § 53a-61 and failing to

appear in the first degree in violation of General Statutes

§ 53a-172 in Docket No. CR-13-0275489-S.

On February 25, 2016, the self-represented petitioner

filed a petition for a writ of habeas corpus alleging

that trial counsel had rendered ineffective assistance

in several respects relating to the application of presentence incarceration credits. On August 3, 2016, the petitioner, now represented by assigned counsel, filed the

operative amended petition, claiming that trial counsel

had rendered ineffective assistance by failing to adequately preserve the petitioner’s incarceration credits

for time already served and that but for trial counsel’s

deficient performance, there was a reasonable probability that the petitioner would have a more favorable

outcome in the form of a reduced period of special

parole.

The petitioner’s habeas trial was held on November 9,

2016, before the court, Fuger, J. During the evidentiary

hearing, trial counsel testified that, while he was representing the petitioner at a violation of probation hearing

in which the petitioner faced ten years incarceration,

the petitioner informed him that he wanted to take

the plea agreement that trial counsel had previously

negotiated with the Waterbury prosecutor. Later in the

hearing, when asked why he didn’t ask for a stay of

execution, trial counsel testified that the petitioner had

been a difficult client who had tried to fire both of his

previous attorneys and was unwilling to negotiate with

the prosecutor. He further testified that ‘‘[the petitioner]

kept wavering. There’s a long track record of him blowing up, trying to fire everyone that had represented him

in the past. I was just trying to get through the canvass

really. . . . [W]e were kind of in the middle of a confus-
ing moment there with the plea. I probably should have

[requested the stay]. I’m not sure what the result was

that we didn’t do it, but again, I thought that his jail

credit was a mess in Meriden anyway.’’

The court also heard from the Meriden trial counsel,

who testified that he also did not ask for jail credits at

the subsequent sentencing, but stated: ‘‘[I]t’s something

I should’ve done. I don’t really have an explanation

for [not doing] it.’’ Furthermore, the petitioner’s expert

witness testified that defense attorneys in Connecticut

have been aware of the issues surrounding jail credit

for some time now and have learned through experience

that it is necessary to take steps to protect whatever

credit there may be. The expert further testified that

having a strained relationship with a client and an urge

to proceed through a hearing quickly does not justify

failing to ask for a stay of execution and that one should

always ask, except when it is counter to the client’s

express wishes. After the conclusion of evidence, the

habeas court denied the petition by oral decision, concluding that there was no deficient performance on the

part of trial counsel. This appeal followed.

On appeal, the petitioner claims that the habeas court

abused its discretion when it found that he failed to

prove that trial counsel’s failure to request a stay of

execution, which deprived him of sixteen days of presentence incarceration credits, constituted ineffective

assistance of counsel.5

As a preliminary matter, we address the claim of the

respondent, the Commissioner of Correction, that the

petitioner’s appeal should be dismissed as moot. This

claim is predicated on the fact that the petitioner is no

longer incarcerated.6 The respondent argues, therefore,

that this court can afford the petitioner no practical

relief. Although the petitioner is no longer incarcerated,

the petitioner argues that practical relief still remains

available because an order modifying the original sentence to include the sixteen days of presentence incarceration credit would likely lead to the advancement

of his release from special parole by approximately that

same amount of time. We agree that practical relief

remains available to the petitioner, and, therefore, this

appeal is not moot.

Our Supreme Court addressed a similar issue in Murray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987). In

Murray, the petitioner was sentenced to a two year

period of confinement, followed by a period of probation. Id., 29. During the pendency of his appeal from

the denial of his petition for a writ of habeas corpus, the

petitioner was released from confinement and began

serving the period of probation. Id., 29–30. In addressing

a similar mootness argument, our Supreme Court concluded that the petitioner’s appeal was not moot,

despite his release from confinement, because,

although no longer ‘‘confined,’’ he was still serving the
probationary portion of his sentence. Id., 31. The court

further concluded that it could afford the petitioner

practical relief, because an order directing the commissioner to recalculate the petitioner’s sentence with the

credit sought under General Statues § 18-98d would

affect the period of probation and result in the petitioner

completing his probationary period three months

sooner by advancing his release date. Id., 30–31; see

id., 31 (‘‘[t]herefore, since our resolution of the issue

presented in this appeal will affect [the petitioner’s]

period of probation, the appeal is not moot’’).

In the present case, although the respondent argues

that no relief exists, we note that if the petitioner successfully prevails on his claim and we were to reverse

the judgment of the habeas court, the benefit to the

petitioner would be the retroactive modification of his

definite sentence so as to incorporate the sixteen days

of presentence confinement credits, thereby advancing

his effective release date from prison and reducing the

amount of time he is required to spend on special parole.

See id; see also Gonzalez v. Commissioner of Correction, 308 Conn. 463, 484, 68 A.3d 624 (2013), cert. denied

sub nom. Dzurenda v. Gonzalez, 571 U.S. 1045, 134 S.

Ct. 639, 187 L. Ed. 2d 445 (2013); Ebron v. Commisioner

of Correction, 307 Conn. 342, 356, 53 A.3d 983 (2012),

cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913,

133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).7 Although,

under this scenario, the calculation with respect to the

petitioner’s period of special parole would be administered by the Department of Correction and not by the

court, the modification of the petitioner’s definite sentence would, nonetheless, result in the advancement of

his effective release date from prison and a reduction

in the time he will be required to spend on special

parole. See Gonzalez v. Commissioner of Correction,

supra, 490–91 (‘‘The respondent asserts that the petitioner has failed to demonstrate prejudice because presentence confinement credit is an administrative task

that takes place after sentencing. This claim is unavailing because the issue herein does not concern whether

the respondent properly calculated the petitioner’s presentence confinement credit but, rather, involves the

failure of the petitioner’s counsel to take the necessary

and available steps during critical stages of the proceedings to protect his client’s statutory right to receive his

full presentence confinement credit.’’). Accordingly, we

conclude that practical relief is available to the petitioner and, therefore, conclude that the present appeal

is not moot.8

I

We now address the petitioner’s first claim that the

habeas court abused its discretion in denying his petition for certification to appeal from the denial of his

amended petition for a writ of habeas corpus. The following standard of review governs our disposition of
this claim. ‘‘Faced with a habeas court’s denial of a

petition for certification to appeal, a petitioner can

obtain appellate review of the dismissal of his petition

for habeas corpus only by satisfying the two-pronged

test enunciated by our Supreme Court in Simms v.

Warden, 229 Conn. 178, 640 A.2d 601 (1994), and

adopted in Simms v. Warden, 230 Conn. 608, 612, 646

A.2d 126 (1994). First, [the petitioner] must demonstrate

that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then

prove that the decision of the habeas court should be

reversed on the merits. . . . To prove that the denial

of his petition for certification to appeal constituted an

abuse of discretion, the petitioner must demonstrate

that the [resolution of the underlying claim involves

issues that] are debatable among jurists of reason; that

a court could resolve the issues [in a different manner];

or that the questions are adequate to deserve encouragement to proceed further. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017).

As we discuss more fully in part II of this opinion,

because the resolution of the petitioner’s underlying

claim that trial counsel rendered ineffective assistance

involves issues that are debatable among jurists of reason, could have been resolved by a court in a different

manner, and are adequate to deserve encouragement

to proceed further, we conclude that the habeas court

abused its discretion in denying the petition for certification to appeal from the denial of the amended petition

for a writ of habeas corpus.

II

The petitioner’s only substantive claim on appeal is

that the habeas court incorrectly concluded that he

failed to establish that his trial counsel rendered ineffective assistance when trial counsel failed to request a

stay of execution of the Waterbury sentence. Specifically, the petitioner claims that trial counsel rendered

ineffective assistance because there was no reasonable

strategic reason not to request a stay after the sentence

had been imposed. In response, the respondent argues
that the habeas court correctly determined that trial

counsel’s choice to forgo a motion to stay the execution

of the Waterbury sentence was based on a strategic

decision to move through the sentencing without incident in order not to jeopardize the court’s acceptance

of the plea agreement. We agree with the petitioner.

The following standard of review and the legal principles govern our resolution of the petitioner’s ineffective

assistance of counsel claim. ‘‘The habeas court is

afforded broad discretion in making its factual findings,

and those findings will not be disturbed unless they are

clearly erroneous. . . . Historical facts constitute a

recital of external events and the credibility of their

narrators. . . . Accordingly, [t]he habeas judge, as the

trier of facts, is the sole arbiter of the credibility of

witnesses and the weight to be given to their testimony.

. . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents

a mixed question of law and fact, which is subject to

plenary review. . . .

‘‘[I]t is well established that [a] criminal defendant

is constitutionally entitled to adequate and effective

assistance of counsel at all critical stages of criminal

proceedings. Strickland v. Washington, [466 U.S. 668,

686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right

arises under the sixth and fourteenth amendments to

the United States constitution and article first, § 8, of the

Connecticut constitution.’’ (Internal quotation marks

omitted.) Thomas v. Commissioner of Correction, 141

Conn. App. 465, 470–71, 62 A.3d 534, cert. denied, 308

Conn. 939, 66 A.3d 881 (2013).

‘‘As enunciated in Strickland v. Washington, supra,

466 U.S. 687, this court has stated: It is axiomatic that

the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance

of counsel consists of two components: [1] a performance prong and [2] a prejudice prong. To satisfy the

performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence

displayed by lawyers with ordinary training and skill

in the criminal law. . . . To satisfy the prejudice prong,

[the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different. . . . The [petitioner’s] claim will succeed

only if both prongs are satisfied. . . . The court, however, can find against a petitioner . . . on either the

performance prong or the prejudice prong, whichever

is easier.’’ (Citation omitted; internal quotation marks

omitted.) Salmon v. Commissioner of Correction, 178

Conn. App. 695, 703–704, 177 A.3d 566 (2017).

A

With the foregoing legal framework in mind, we
address the petitioner’s claim that the habeas court

incorrectly concluded that he failed to establish that

his trial counsel rendered ineffective assistance by failing to request a stay of execution of the Waterbury

sentence pending imposition of the Meriden sentence.

Specifically, the petitioner argues that, with the Waterbury sentence already imposed, there was no basis for

the claim that the petitioner might act in such a way

that would cause the prosecutor to withdraw the plea

agreement or cause the court to alter the sentence. The

petitioner further argues that the underlying premise

of our Supreme Court’s decision in Gonzalez v. Commissioner of Correction, supra, 308 Conn. 463, applies

to the present case, and, therefore, the petitioner is

entitled to the effective assistance of counsel with

respect to ensuring that he receives all available presentence confinement credit. In response, the respondent

argues that it was a reasonable strategic decision to

forgo a motion to stay the sentence because the petitioner could have disrupted the plea process prior to

the conclusion of the sentencing hearing, given his tendency toward disruptive behavior and changing his

mind. Specifically, the respondent argues that the decision by trial counsel was reasonable given the circumstances because the court could have rejected the plea

agreement at any point up to the conclusion of the

hearing had the petitioner wanted to withdraw the plea

agreement or lost his composure. The respondent further argues that the petitioner’s reliance on Gonzalez

is misplaced because that case dealt with an omission

that had no strategic value and addressed whether a

bond hearing constituted a critical stage in a criminal

proceeding and, therefore, is distinguishable from the

present case.

In considering the petitioner’s claim that there was

no reasonable strategic basis for not requesting a stay

of execution, we first address the issue of whether the

petitioner could have withdrawn his plea after it was

accepted by the court. The following legal principles

assist in our resolution of this issue. ‘‘[S]trategic choices

made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable

. . . [however] strategic choices made after less than

complete investigation are [only] reasonable precisely

to the extent that reasonable professional judgments

support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.’’ Strickland v. Washington,

supra, 466 U.S. 690–91. Furthermore, ‘‘Practice Book

§ 39-26 . . . provides: 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,

[however] the judicial authority shall allow the defendant to withdraw his or her plea [only] upon proof of

one of the grounds in [§] 39-27. A defendant may not
withdraw his or her plea after the conclusion of the

proceeding at which the sentence was imposed.’’ (Internal quotation marks omitted.) State v. Ramos, 306 Conn.

125, 133–34, 49 A.3d 197 (2012).

Practice Book § 39-27 provides in relevant part: ‘‘The

grounds for allowing the defendant to withdraw his or

her plea of guilty after acceptance are as follows: (1)

The plea was accepted without substantial compliance

with Section 39-19;9

(2) The plea was involuntary, or it

was entered without knowledge of the nature of the

charge or without knowledge that the sentence actually

imposed could be imposed; (3) The sentence exceeds

that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the

judicial authority had deferred its decision to accept or

reject the agreement at the time the plea of guilty was

entered; (4) The plea resulted from the denial of effective assistance of counsel; [or] (5) There was no factual

basis for the plea . . . .’’ (Footnote added.) Furthermore, ‘‘[t]he burden is always on the defendant to show

a plausible reason for the withdrawal of a plea of guilty.

. . . To warrant consideration, the defendant must

allege and provide facts which justify permitting him

to withdraw his plea under [Practice Book § 39–27].’’

(Internal quotation marks omitted.) State v. Anthony

D., 151 Conn. App. 109, 114, 94 A.3d 669 (2014), aff’d,

320 Conn. 842, 134 A.3d 219 (2016).

At the Waterbury sentencing hearing, the court presented the petitioner with the various charges against

him and inquired whether he had sufficient time to

discuss the plea agreement with trial counsel. The court

also asked whether the petitioner was satisfied with

trial counsel’s advice. The petitioner answered in the

affirmative to both inquires. The court proceeded to

canvass the petitioner in accordance with Practice

Book §§ 39-19 through 39-22. The court then asked

whether trial counsel or the prosecutor knew of any

reason why the plea should not be accepted. No reasons

were given by either representative.

The court made a finding that the plea agreement was

made voluntarily and with the assistance of competent

counsel, and accepted it. After the plea agreement had

been accepted, but before the sentence was pronounced, the court asked whether the state or the petitioner wanted to be heard on anything further. The

petitioner stated that he ‘‘just want[ed] to make sure

all [his] jail credit [would be] applied to all [his] dockets,

even for . . . [the] Meriden cases.’’ The court

explained that because the Meriden cases were pending

in another jurisdiction, the court had no control over

them. The court further stated: ‘‘What I can do is give

you credit for any time you were incarcerated during

the pendency of these cases that are in this jurisdiction.’’

The court then asked if there was anything else. The

petitioner asked to be heard a second time and pro-
ceeded to apologize to the court for his previous outburst and for any inconvenience that he may have

caused to the court, the state, and the victims. The

court then pronounced sentence.

In the present case, the sentencing court canvassed

the petitioner in conformity with the relevant rules of

practice and provided the prosecutor, trial counsel, and

the petitioner sufficient opportunity to present any reasons why the plea agreement should not be accepted.

Our review of the record fails to disclose any findings

or circumstances that would lead us to conclude that

the requirements set forth in § 39-27 had been violated.10

Although we defer to the habeas court’s determination

that trial counsel credibly testified that his failure to

request a stay of execution was the result of a strategic

decision, as a matter of law, we conclude that trial

counsel’s failure to request a stay was not the product

of reasonable professional judgment. See Strickland

v. Washington, supra, 466 U.S. 690–91. Trial counsel’s

concern that the petitioner could withdraw his plea,

even after it had been accepted by the court, was not

reasonable given that had the court accepted the plea

agreement and had the petitioner subsequently sought

to withdraw it, he likely would have been barred by

§ 39-27. Accordingly, we conclude that it was not reasonable for trial counsel to believe that once the court

accepted the plea agreement, the petitioner would have

been able to withdraw it.

We next address whether the court could have modified the petitioner’s sentence on the basis of the petitioner’s behavior after the sentence was imposed, but

prior to the conclusion of the sentencing proceeding.

To begin, we acknowledge the common-law principle

that a sentencing court retains jurisdiction over the

proceeding and, thus, the authority to modify the sentence, until custody passes to the respondent, unless

otherwise permitted by statute. See State v. Ramos,

supra, 306 Conn. 133–34. Moreover, this court has held

that a sentencing court can impose a greater sentence

than what was originally provided for in a plea, even

after a plea has been accepted by the court, upon the

presentation of new information. See Practice Book

§ 39-27 (3);11 Ebron v. Commissioner of Correction, 120

Conn. App. 560, 564–65, 992 A.2d 1200 (2010) (following

petitioner’s rejection of state’s plea agreement with

specified sentencing recommendation, court accepted

open plea and sentenced petitioner to greater period

of incarceration than state’s recommendation after it

reviewed new information in unfavorable presentence

investigation report), rev’d in part on other grounds,

307 Conn. 342, 53 A.3d 983 (2012), cert. denied sub

nom. Arnone v. Ebron, 569 U.S. 913, 133 S. Ct. 1726,

185 L. Ed. 2d 802 (2013).

‘‘The critical question in determining whether a court

may take action affecting a defendant’s sentence follow-
ing its imposition [then] is whether the requested action

is punitive in nature. If the requested action is not punitive in nature, then a defendant’s sentence is not

affected, and the trial court has jurisdiction to take that

action. If it is punitive, [however] then a defendant’s

sentence is affected, and the trial court lacks jurisdiction to take that action.’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Banks, 321 Conn.

821, 831, 146 A.3d 1 (2016) (considering effects of legislative enactment subsequent to imposition of defendant’s sentence that altered aspect of defendant’s sex

offender reporting obligations).

In the present case, even though the sentencing court

retained jurisdiction over the matter prior to the conclusion of the petitioner’s sentencing hearing, any subsequent modification of the sentence after imposition

would be prohibited if construed as punitive. Had the

sentencing court modified the sentence, for example,

by withdrawing its acceptance of the plea agreement

on the basis of the petitioner’s behavior, it would be

difficult to see that decision as anything but punitive.

We conclude, therefore, that there was no reasonable

basis for trial counsel to believe that the court could

have modified the petitioner’s sentence, once imposed,

in a way that would have jeopardized the plea

agreement.

Next, the petitioner argues that Gonzalez v. Commissioner of Correction, supra, 308 Conn. 463, supports

his claim and should apply with equal force in the present case. In Gonzalez, our Supreme Court affirmed

this court’s determination that a failure to request a

bond increase, which, if granted, would have allowed

the petitioner to earn credit for a period of presentence

incarceration, was deficient performance because,

despite the fact that the ultimate decision of whether

to grant the bond increase was discretionary, there was

no strategic reason available not to ask for it. Id., 489–91.

The petitioner argues that although the present case

deals with facts concerning a different stage of a criminal proceeding, the essential thrust is the same: absent a

strategic justification, failure to maximize presentence

confinement credits constitutes deficient performance.

Under the facts of the present case, we agree with

the petitioner.

Although a stay of execution can be a negotiable term

in the plea process that may involve strategic considerations and, therefore, is dissimilar to the routine bond

increase addressed in Gonzalez, the issue here is not

whether requesting a stay is strategic in nature or part

of some strategic process, but whether trial counsel

took the necessary and available steps during critical

stages of the proceedings to protect the petitioner’s

statutory right to receive his full presentence confinement credit. See id., 490.

In the present case, given that we can ascertain no
reasonable basis from the record that supports the

respondent’s claim that trial counsel’s failure to request

a stay of execution was the product of a reasonable

strategic decision, the distinction that the respondent

draws between requesting a bond increase and

requesting a stay of execution is not persuasive in

respect to the issue presented in this appeal. Accordingly, we conclude, on the basis of Gonzalez, that trial

consel’s failure to request a stay of execution once

the sentence had been imposed constituted deficient

performance. Id.

B

Lastly, we address the prejudice prong of Strickland.

The petitioner claims that he was prejudiced by trial

counsel’s failure to request a stay of execution for the

Waterbury sentence because he was unable to apply

sixteen days of presentence incarceration credits

toward his controlling sentence in Meriden that he

would have received if not for defense counsel’s deficient performance. The petitioner further argues that

Glover v. United States, 531 U.S. 198, 121 S. Ct. 696,

148 L. Ed. 2d 604 (2001), and Ebron v. Commissioner

of Correction, supra, 120 Conn. App. 560, support a

finding of prejudice because being incarcerated for even

more than one additional day is prejudicial. In response,

the respondent argues that the habeas court’s decision

was based solely on the deficient performance prong

of Strickland and failed to make any findings with

respect to the issue of prejudice, and, as a result, the

petitioner’s analysis of prejudice is irrelevant to the

present appeal.12

The following legal principles govern our analysis of

the petitioner’s claim. ‘‘The Sixth Amendment requires

effective assistance of counsel at critical stages of a

criminal proceeding. Its protections are not designed

simply to protect the trial, even though counsel’s

absence [in these stages] may derogate from the

accused’s right to a fair trial. . . . The constitutional

guarantee applies to pretrial critical stages that are part

of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make

critical decisions without counsel’s advice. This is consistent, too, with the rule that defendants have a right

to effective assistance of counsel on appeal, even

though that cannot in any way be characterized as part

of the trial. . . . The precedents also establish that

there exists a right to counsel during sentencing . . . .

[See Glover v. United States, supra, 531 U.S. 203–204].

Even though sentencing does not concern the defendant’s guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland

prejudice because any amount of [additional] jail time

has Sixth Amendment significance. [Id., 203].’’ (Citations omitted; emphasis added; internal quotation

marks omitted.) Lafler v. Cooper, 566 U.S. 156, 165, 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012); see also Ebron v.

Commissioner of Correction, supra, 120 Conn. App.

581–82 (habeas court properly determined that petitioner suffered prejudice when trial counsel’s deficient

performance resulted in additional incarceration); see

id., 582 (‘‘The petitioner suffered the prejudice of . . .

[additional] incarceration as a direct result of [trial

counsel’s] deficient performance. . . . Further, the

outcome of the proceedings was affected directly by

the petitioner’s counsel . . . and [resulted in] the loss

of a lesser sentence.’’ [Internal quotation marks

omitted.]).13

At the habeas trial, during the petitioner’s closing

remarks, the habeas court asked the following: ‘‘[E]ven

assuming for the sake of argument that it was deficient

performance not to ask for the stay of execution . . .

what evidence, if any, have you presented to this court

that such request would have been granted?’’ The petitioner answered that, at sentencing, the fact that he

requested credits for the time already served and that

the court indicated it would give him the maximum

amount it could, indicates that the court was amenable

to providing the petitioner with whatever credits it

could. The petitioner also pointed to the fact that when

trial counsel filed a motion for presentence incarceration credits, the trial court granted the request, in toto,

the next day. Although the habeas court made no mention of prejudice or whether a more favorable outcome

would have been likely had defense counsel acted differently, it acknowledged in its oral decision that ‘‘[t]his

area of jail credits in Connecticut is extremely confusing. . . .

‘‘I will comment that while what is at issue here is

whether [the petitioner] is entitled to receive sixteen

days of jail credit and thereby be released slightly over

two weeks earlier, that’s not insignificant. To [the petitioner] those are two weeks of his life that have—if he

spends it in jail, he can never get back. So, I do think

this is a significant issue, whether it be sixteen days,

sixteen months or sixteen hours.’’

‘‘[A]lthough it is axiomatic that this court cannot

make factual findings, factual conclusions may be

drawn on appeal if the subordinate facts found [by

the trial court] make such a conclusion inevitable as a

matter of law . . . or where the undisputed facts or

uncontroverted evidence and testimony in the record

make the factual conclusion so obvious as to be inherent in the trial court’s decision.’’ (Internal quotation

marks omitted.) Washington Mutual Bank v. Coughlin,

168 Conn. App. 278, 289, 145 A.3d 408, cert. denied,

323 Conn. 939, 151 A.3d 387 (2016); see also Hickey v.

Commissioner of Correction, 329 Conn. 605, 618–19,

188 A.3d 715 (2018).14 In light of the undisputed evidence

in the record that the petitioner would have been able

to apply sixteen additional days of presentence incar-
ceration credits to his definite sentence had a stay of

execution been requested and accepted, we conclude

that the record clearly supports the petitioner’s argument that he was prejudiced as a result of trial counsel’s

deficient performance. Accordingly, we conclude that

the habeas court abused its discretion in denying the

amended petition for a writ of habeas corpus.

The judgment is reversed and the case is remanded to

the habeas court with direction to grant the petitioner’s

amended petition for a writ of habeas corpus and to

remand the case to the trial court with direction to

modify the petitioner’s sentence in accordance with

this opinion, so that it reflects the sixteen days of presentence confinement credits that otherwise would

have been applied to the petitioner’s sentence.

In this opinion the other judges concurred.

1 On July 30, 2015, prior to entering into the plea agreement, the petitioner

was in court for a violation of probation hearing where he faced a possible

ten year period of incarceration. During the hearing, the petitioner notified

trial counsel that he wanted to take a prior plea agreement that had been

offered by the state in the pending Waterbury cases. Thereafter, the hearing

was referred to the court, Fasano, J., for resolution of both the plea

agreement and the violation of probation.

2

‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970), [a]n individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence

even if he is unwilling or unable to admit his participation in the acts

constituting the crime.’’ (Internal quotation marks omitted.) Garner v. Commissioner of Correction, 330 Conn. 486, 490 n.5, 196 A.3d 1138 (2018).

3 After having accepted the plea agreement, but prior to imposing the

sentence, the court addressed trial counsel, stating: ‘‘Hold it, I haven’t

imposed [the] sentence.’’

4 The petitioner was represented by different counsel at the Meriden hearing. In this appeal, there is no claim that Meriden trial counsel performed

deficiently. Accordingly, we restrict our analysis to whether Richards, who

was Waterbury trial counsel, performed deficiently.

5 The number of presentence incarceration credits that the petitioner

would be entitled to, sixteen days, had the court granted a stay of execution

on his Waterbury sentence, is not in dispute.

6 Specifically, the respondent claims that because the petitioner has completed his term of incarceration, General Statutes § 18-98d, which governs

the application of presentence confinement credits, does not apply because

it applies only to definite sentences and not to periods of special parole.

The respondent further claims that to allow unused jail credit to apply

to special parole would essentially encourage bad behavior by allowing

defendants to collect credits that would offset punishment for future criminal

acts and, therefore, is counter to public policy. Because we conclude that

practical relief remains available to the petitioner on a separate ground, we

do not reach this issue. See footnote 8 of this opinion.

7

‘‘[T]he United States Supreme Court in Lafler [v. Cooper, 566 U.S. 156,

132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012)] and [Missouri v. Frye, 566 U.S.

134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012)] did not expressly indicate

what should happen under these circumstances, it appears to us that the

court intended that, if the court finds a . . . violation, the court should

attempt to place the habeas petitioner, as nearly as possible, in the position

that he would have been in if there had been no violation.’’ Ebron v. Commisioner of Correction, supra, 307 Conn. 363. ‘‘If the petitioner was prejudiced

because it is reasonably probable that the [more favorable] sentence . . .

would have been imposed if not for the deficient performance of counsel,

even considering intervening circumstances, it seems reasonably clear that

the appropriate remedy is to impose that sentence.’’ Id., 356.

8 Because practical relief remains available to the petitioner, we do not

reach the issue of whether § 18-98d impliedly excludes the application of

presentence confinement credits to periods of special parole.

9 Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant personally and determining

that 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 that 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.’’

10 See State v. Anthony D., supra, 151 Conn. App. 118–19 (holding that

vague allegations without factual predicates about quality of representation

is not sufficient ground to permit defendant to withdraw guilty plea once

accepted by court) (‘‘Here, there was a vague allegation that the defendant

had concerns about his attorney’s representation but no specific facts, and,

when the defendant was asked if he wanted to say anything before sentence

was pronounced, he specifically declined the opportunity. Neither the defendant nor his attorney were denied the opportunity to present a basis for a

plea withdrawal. The trial court need not consider allegations that merely

are conclusory, vague or oblique.’’ [Internal quotation marks omitted.]).

11 Practice Book § 39-27 (3) provides in relevant part that a defendant can

withdraw a plea once accepted if ‘‘[t]he sentence exceeds that specified in

a plea agreement which had been previously accepted, or in a plea agreement

on which the judicial authority had deferred its decision to accept or reject

the agreement at the time the plea of guilty was entered. . . .’’

12 Although the petitioner did not file a motion for articulation before

filing the present appeal, this court retains the authority under Practice

Book § 60-2 (1) to require the trial court to complete the trial record in

order to aid in the resolution of a case before this court. Judge Fuger,

however, has retired from the bench, thereby, precluding the possibility of

a motion for articulation. For the reasons we discuss herein, such additional

factual findings by the habeas court are not necessary to our analysis.

13 See Ebron v. Commissioner of Correction, supra, 307 Conn. 364

(affirming this court’s prejudice determination).

14 In Hickey, our Supreme Court noted: ‘‘[A]fter concluding that the habeas

court improperly analyzed prejudice, the Appellate Court should have

engaged in a plenary review of the evidence in the record to resolve the

commissioner’s claim that the petitioner failed to satisfy his burden of

proving prejudice as a matter of law, rather than remanding the case for a

new habeas trial. . . . Given that the habeas court relied on facts from the

criminal trial and its own, undisputed historical factual findings, the Appellate Court had no reason to remand the case to the habeas court to conduct

a proper prejudice analysis that the Appellate Court itself could have performed.’’ Hickey v. Commissioner of Correction, supra, 329 Conn. 618–19;

see also Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153

A.3d 1264 (2017) (‘‘[t]he application of historical facts to questions of law

that is necessary to determine whether the petitioner has demonstrated

prejudice . . . is a mixed question of law and fact subject to our plenary

review’’).