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******************************************************ERIC GOODEN v. COMMISSIONER OF CORRECTION (AC 38169)
DiPentima, C. J., and Prescott and Gruendel, Js.
Submitted on briefs September 19—officially released November 15, 2016 (Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)WalterC. BansleyIVandJudieMarshall filed abrief for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney, Gail P. Hardy, state’s attorney, and Randall Bowers, former special deputy assistant state’s attorney, filed a brief for the appellee (respondent).Opinion DiPENTIMA, C. J. The petitioner, Eric Gooden, appeals from thejudgment ofthe habeas court denying his petition for a writ ofhabeas corpus. On appeal, the petitioner claims that the court improperly concluded that his trial counsel did not provide ineffective assistance at his sentencing. We disagree and, accordingly, affirm the judgment of the habeas court.
The following facts andproceduralhistoryare necessary for our discussion. On April 3, 2007, the petitioner
was arrested and charged inthe Superior Court at Manchester in docket number H12M-CR-07-0210233-T. He
was incarcerated in lieu of bond while awaiting the resolution of these charges from Manchester. While in pretrial custody, he was arrested on January 15, 2008, 286 days later, and charged in the judicial district of Tolland in docket number TTD-CR-08-0091161-T.
On November 21, 2008, the petitioner appeared in Tolland before the court, Hon. Terrance A. Sullivan, judge trial referee, to plead guilty to burglary in the first degree in violation of General Statutes § 53a-101 and conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 in docket number TTD-CR-08-0091161-T. After setting forth the factual bases for these crimes, the prosecutor stated: ‘‘The agreement in the case is for a sentence of ten years to serve plus five years special parole. The agreementalsoincorporatesapendingcommercialburglary that the [petitioner] has in Manchester. [There] is the understanding—both parties I believe—that the [petitioner] willpleadtothatcaseandthatthatcasewill be transferred here for sentencing and he will receive a concurrent sentence on that.’’ Leslie Cunningham, the petitioner’s attorney in docket number TTD-CR-08- 0091161-T, noted her agreement with the prosecutor’s statement of the plea, subject to one caveat. ‘‘There— there’s apossiblejail creditissue, andwhatwe contemplated was a total effective sentence of ten [years] to serve, five [years] special parole, so we may adjust one
or the other to reflect the ten year sentence.’’ Cunninghamexplainedthatthepetitionerhadbeenarrestedfirst forthe crimes chargedinManchester, andthereforethe sentence imposed would need to be adjusted for the petitioner to serve a total of ten years incarceration afterreceiving credit for all ofhis pretrial incarceration from April 4, 2007, the date which he first entered the custody of the Department of Correction. Judge Sullivan immediately noted his concern with thejailcreditissue. ‘‘Beforewe gotoofaronthis, that— if you haven’t got that straightened out now, then I’m not sure why he’s pleading now. Ifthe agreement is the sentenceisgoingtobetenyearsplusfivespecialparole, that’s the sentence I’m going to impose

. . . ten years in prison plus five years special parole. I’m not goingtoimposeasentenceofnineyearsandeightmonthsand twenty-six days andplus five years ofspecialparole. So ifthe agreement—I—when we discussed this matter, I thought the agreement—and in fact, I thought it was my offer that I made which was ten, ten [years] plus five special parole.’’ Cunningham mentioned that there had been an off-the-record discussion regarding whether the petitioner’s sentence could be structured ‘‘so [that] it reflects the ten years.’’ The court iterated that it would impose a sentence often years incarceration and five years of special parole and indicated that itdid‘‘notwantyouto comebacksometimenextmonth and say, well, I know that the plea agreement is ten plus five special parole, but, Judge, we, that’s what we want him to—we want him to get extra credit or some credit for this so you can’t really give him ten plus five special parole.’’ Cunningham then asked for and received an opportunity to discuss the matter with the petitioner while the court turned to other matters. Afterreturningtothepetitioner’s case, andbeingtold by Cunningham that the matter was ready to proceed, the court conducted a plea canvass of the petitioner. It explained the sentence that would be imposed: ‘‘The plea agreement is that, at the time of sentencing on these charges, I’m going to impose a sentence of ten years imprisonment, followed by five years of special parole. And it’s also my understanding that [docket numberH12M-CR-07-0210233-T] isgoingtobe sentover here and you’re going to be sentenced on that at the
same time, and that sentence from [docket number H12M-CR-07-0210233-T] will be incorporated into this sentence. But the sentence that I’m going to impose for both ofthem combined out ofthat, out ofthatproceeding, isgoing to be ten years ofimprisonmentplus five years ofspecial parole.’’ (Emphasis added.) After the petitioner indicated that he understood the sentence, the court accepted the plea and found the petitioner guilty of burglary in the first degree and conspiracy to commit burglary in the first degree.
On December 8, 2008, the petitioner appeared before Judge Ward in Manchester, to plead guilty, pursuant to the Alford doctrine, to larceny in the first degree in violation of General Statutes § 53a-122 and burglary in the third degree in violation of General Statutes § 53a103 in docket number H12M-CR-07-0210233-T.1 The prosecutor set forth the facts underlying these charges, and noted that the plea called for a sentence of five years incarcerationto run concurrentwiththe sentence imposed in docket number TTD-CR-08-0091161-T. The court accepted the petitioner’s Alford plea and found him guilty of larceny in the first degree and burglary in the third degree.
OnDecember 12, 2008,thepetitionerappearedbefore Judge Sullivan for sentencing in both docket numbers. At this proceeding, the court sentenced the petitionerin accordance with his plea agreements. It imposed a total effective sentence of ten years incarceration and five years special parole. The petitioner expressly agreed that the sentence was consistent with the plea agreements that he had made.
In March, 2012, the petitioner, acting pro se, commenced the present action. He alleged that he had received332 days ofcreditforhispresentenceincarceration from January 15, 2008 to December 12, 2008, but claimedthathe shouldhave received 618 days, the time period from April 4, 2007 to December 12, 2008. The petitionerfiled anamendedpetitionforawrit ofhabeas corpus, dated August 21, 2012, again claiming that he should have received a credit of 618 days, rather than 332 days, for his presentence incarceration.
On March 26, 2014, counsel for the petitioner filed
an amended petition, alleging that the petitioner had received ineffective assistance of counsel and that his pleasinboth docketnumberswere notknowing, intelligent or voluntary. With respect to the former, the petitioner claimed that Cunningham, inter alia, had failed to askthe sentencing courtforcreditfromApril4, 2007, the first date he was in custody. The petitioner claimed thatCunningham’srepresentationthathewouldreceive jail credit dating back to April 4, 2007, induced him to plead guilty. Following a one day trial, where Cunningham and the petitioner testified, the habeas court, Fuger, J., issued an oral decision denying the petition for a writ ofhabeas corpus. The habeas court found that the controlling sentence2 was imposed in docket number TTDCR-08-0091161-T and that 332 days was all of the jail credit that he was entitled to under General Statutes § 18-98d. It further determined that Cunningham had not performed deficiently by failing to ask Judge Sullivanatsentencingforadditionalcredit. Italsoconcluded that the petitioner had not suffered any prejudice because Judge Sullivan unequivocally indicated on the record on the date ofthe plea that he would not award anyadditionaljailcredit. Thehabeas courtalsorejected the claim that the petitioner’s pleas were involuntary. Following the denial of the petition, the habeas court granted the petition for certification to appeal.
Onappeal, thepetitionerclaimsthatthehabeas court improperlyconcludedthat Cunninghamdidnotprovide ineffective assistance.3 Specifically, he argues that Cunningham was deficient by failing to request that the court, at sentencing, award presentence credit for the 286 days that he was incarcerated in docket number H12M-CR-07-0210233-T, even though his controlling sentence was in docket numberTTD-CR-08-0091161-T.4 The petitioner also argues that ‘‘[t]here was a reasonable probability that—but for [Cunningham’s] deficient performance—the result of the petitioner’s sentence would have been different.

. . . There was a reason-ableprobabilitythe courtwouldhave awarded286 days of presentence confinement time to be applied to the controlling docket if [Cunningham] had made the request.’’
We begin our analysis by setting forth our standard ofreview andthe legalprinciples relevantto this 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.

. . . The application ofthe 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.

. . . ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance ofcounsel at all critical stages of criminal proceedings [pursuant to 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 constitutionand article first, § 8, ofthe Connecticut constitution.

. . . As enunciated in Strickland v. Washington, supra, 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: a performance prong and 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.

. . . ‘‘Anerrorbycounsel, evenifprofessionallyunreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

. . . To satisfy the second prong of Strickland, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that, as
a result of his trial counsel’s deficient performance, thereremains aprobabilitysufficienttoundermine confidence in the verdict that resulted in his appeal.

. . . The second prong is thus satisfied ifthe petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.’’ (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner ofCorrection, 321 Conn. 767, 775–76, 138 A.3d 908 (2016); see also Stanleyv. CommissionerofCorrection, 164 Conn. App. 244, 253, 134 A.3d 253, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016); Weathers v. Commissioner of Correction, 133 Conn. App. 440, 443, 35 A.3d 385, cert. denied, 304 Conn. 918, 41 A.3d 305 (2012).
In order to prevail, a petitioner must prevail on both Strickland prongs. Lewis v. Commissioner ofCorrection, 165 Conn. App. 441, 451, 139A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931 (2016). Put another way,‘‘[i]t is axiomatic that courts may decide against a petitioner on either prong, whichever is easier.’’ Id. Duringthe November21, 2008proceeding, the prosecutor stated that the petitioner’s plea deal called for a sentence often years incarceration, plus five years special parole. When asked by the court if that was the petitioner’s understanding, Cunningham raised the issue of presentence jail credit. Judge Sullivan stated thatthe sentence wouldbe tenyears incarcerationplus five years special parole and that he would not modify those termsto accountforany creditthatthe petitioner
was not statutorily entitled to. At the conclusion ofthis colloquy, the court emphasized that ‘‘the sentence that I’m going to impose is ten [years incarceration] plus five [years] special parole.

. . . I just don’t want you to come back sometime next month and say, well, I know that the plea agreement is ten plus five special parole, but, Judge, we, that’s what we want him to—
we want to get extra credit or some credit for this so you can’t really give him ten plus five special parole.’’ The court then afforded Cunningham time to speak with the petitioner, who subsequently stated on the record that he understood what sentence would be imposed. During the plea canvass, the petitioner stated that he knew that the court would impose a sentence oftenyears incarcerationandfiveyears specialparole.5
At the habeas trial, Cunningham testified on crossexaminationthat she was familiarwithJudge Sullivan’s policy of not adjusting sentences based on jail credits earned in situations similarto the petitioner’s case. She also stated that Judge Sullivan would not have altered his policy in the present case, even if she had raised the jail credit issue at the petitioner’s sentencing.
In Weathers v. Commissioner of Correction, supra, 133 Conn. App. 445, we concludedthat ‘‘the mere possibility that the court might have imposed a more lenient sentence on account ofthis pretrial incarceration does not amount to a reasonable probability that it would have done so.’’ In the present case, the facts demonstrate that there was no possibility, much less a probability, of a more lenient sentence. Judge Sullivan expressly stated that he would not adjust the petitioner’s sentence of ten years incarceration and five years ofspecial parole as a result ofthe petitioner’s 286 days of pretrial incarceration in docket number H12M-CR07-0210233-T. As stated by the habeas court: ‘‘Judge Sullivan

. . . [made] it clear that he [was] not going to imposeanysentenceotherthantenyears [incarceration and five years special parole].

. . . Even if

. . . Cunningham had asked, it is crystal clear [from] both

. . . her testimony and from the transcript that Judge Sullivan was not going to award any jail credit [for the petitioner’s pretrial incarceration in docket number H12M-CR-07-0210233-T].’’ After a review ofthe record,
we conclude thatthe petitionerdidnotmeethis burdenof establishing a reasonable probability that his sentence would have been different had Cunningham renewedthejail credit claim atthe sentencingproceeding. Accordingly, the habeas court properly denied the petition for a writ of habeas corpus. The judgment is affirmed.
In this opinion the other judges concurred.

1 The petitioner also admitted to violating his probation in violation of General Statutes § 53a-32. As a result of these proceedings, his probation

was terminated.

2 The ten year period of incarceration in docket number TTD-CR-08- 0091161-T is the controlling sentence because that sentence had the longest term to run. See Tyson v. Commissioner ofCorrection, 261 Conn. 806, 825, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003); see also General Statutes § 53a-38 (b); Washington v. Commissioner of Correction, 287 Conn. 792, 801, 950 A.2d 1220 (2008).

3 The habeas court stated in its memorandum ofdecision: ‘‘Judge Sullivan

was completely correct when he refused, and had apparently in the past refused, to honor the request by counsel that a defendant receivejail credit. I happen to be in complete accord with Judge Sullivan on that point. I also do not awardjail credit when a person is sentenced because it is not within the power of a Superior Court judge to do so. ‘‘I’m well aware that there are some of my colleagues who feel that it’s appropriate and they go ahead and award jail credit. In the opinion of this court, that is an illegal ultra vires act. It is beyond the law and the judge has no authority to do so. ‘‘Furthermore, that places the [respondent, the Commissioner of Correction]—when ajudge awardsjail credit illegally, in this court’s opinion, that places the [respondent] in an untenable position where the [respondent] is mandated by statute, Connecticut General Statutes § 18-98d, to correctly determine jail credit. To the extent that the Department of Correction is honoring an order from a judge to award jail credit, this court is of the opinion that that action by the Department [of Correction] is contrary to statute and therefore illegal. ‘‘When a judge illegally awards jail credit, he places—he or she places the [respondent] in a position ofwhich, do I disobey the statutory mandate set forth by the legislature, or do I risk being in contempt of court.

. . . There is, simply put, zero authority for Judge Sullivan to have awardedjail credit in [this] case.’’ To be clear, Judge Fugerdeterminedthatthere was no authorityforJudge Sullivanto awardthe petitioner ajail credit forthe 286 days ofincarceration beginning on April 4, 2007, in docket number H12M-CR-07-0210233-T. The petitionerdidreceive creditfor332 days ofpresentence incarcerationbeginning in January 15, 2008. See General Statutes § 18-98d (a) (1). On appeal, the petitioner also claims that the habeas court improperly concluded that ‘‘the practice of awarding jail credit when defendants are not statutorily entitled is an illegal ultravires act.’’ Specifically, he contends that under the broad discretion afforded to trial judges with respect to sentencing, Judge Sullivan had the authority to craft a sentence of nine years and seventy-nine days that accounted, sub silentio, for the 286 days ofjail credit earned under the noncontrolling docket number H12M-CR-07- 0210233-T. We need not decide this issue in the present case, because Cunningham

was aware of the jail credit issue and presented it to Judge Sullivan, who clearly rejected any possibility that he would incorporate the jail credit earned from April 4, 2007, into the petitioner’s sentence. Judge Sullivan announced his intention to sentence the petitioner in accordance with the plea bargain reached by the parties, which was ten years incarceration and five years of special parole, following the guilty pleas in the two docket numbers. We leave consideration of whether ‘‘the practice of awarding jail credit when defendants are not statutorily entitled is an illegal ultra vires act’’ for another day.

4 The petitioner does not claim that he was statutorily entitled, pursuant to § 18-98d (a), to the 286 days ofjail credit, but rather bases his claim on the broad discretion afforded to a sentencing court. See, e.g., Weathers v. CommissionerofCorrection, 133 Conn. App. 440, 443–45, 35 A.3d 385, cert. denied, 304 Conn. 918, 41 A.3d 305 (2012).5 During the habeas trial, Cunningham testified that she did not have any discussions on the record at the sentencing proceedings regarding the jail credit issue.