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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.)
Walter C. Bansley IV and Judie Marshall filed a brief

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 the judgment of the habeas court denying

his petition for a writ of habeas 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 and procedural history are necessary for our discussion. On April 3, 2007, the petitioner

was arrested and charged in the 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

agreement also incorporates a pending commercial burglary that the [petitioner] has in Manchester. [There]

is the understanding—both parties I believe—that the

[petitioner] will plead to that case and that that case will

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 a possible jail credit issue, and what we 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.’’ Cunningham explained that the petitioner had been arrested first

for the crimes charged in Manchester, and therefore the

sentence imposed would need to be adjusted for the

petitioner to serve a total of ten years incarceration

after receiving credit for all of his 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

the jail credit issue. ‘‘Before we go too far on this, that—

if you haven’t got that straightened out now, then I’m

not sure why he’s pleading now. If the agreement is the

sentence is going to be ten years plus five special parole,

that’s the sentence I’m going to impose . . . ten years

in prison plus five years special parole. I’m not going
to impose a sentence of nine years and eight months and

twenty-six days and plus five years of special parole. So

if the 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 of ten years incarceration and five years of special parole and indicated that

it did ‘‘not 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 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.

After returning to the petitioner’s case, and being told

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

number H12M-CR-07-0210233-T] is going to be sent over

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 of them combined out of that, out of that proceeding, is going to be ten years of imprisonment plus

five years of special 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 incarceration to run concurrent with the 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.

On December 12, 2008,the petitioner appeared before

Judge Sullivan for sentencing in both docket numbers.

At this proceeding, the court sentenced the petitioner
in 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

received 332 days of credit for his presentence incarceration from January 15, 2008 to December 12, 2008, but

claimed that he should have received 618 days, the time

period from April 4, 2007 to December 12, 2008. The

petitioner filed an amended petition for a writ of habeas

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

pleas in both docket numbers were not knowing, intelligent or voluntary. With respect to the former, the petitioner claimed that Cunningham, inter alia, had failed

to ask the sentencing court for credit from April 4, 2007,

the first date he was in custody. The petitioner claimed

thatCunningham’s representation that he would receive

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

of habeas 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 Sullivan at sentencing for additional credit. It also concluded

that the petitioner had not suffered any prejudice

because Judge Sullivan unequivocally indicated on the

record on the date of the plea that he would not award

any additional jail credit. The habeas court also rejected

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.

On appeal, the petitioner claims that the habeas court

improperly concluded that Cunningham did not provide

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 number TTD-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-
able probability the court would have awarded 286 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

of review and the legal principles relevant to 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 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. . . .

‘‘A criminal defendant is constitutionally entitled to

adequate and effective assistance of counsel 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 constitution and article first, § 8, of the 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. . . .

‘‘An error by counsel, even if professionally unreasonable, 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,

there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . .

The second prong is thus satisfied if the 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 of Correction,

321 Conn. 767, 775–76, 138 A.3d 908 (2016); see also

Stanley v. Commissioner of Correction, 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 of Correction, 165 Conn. App. 441, 451, 139 A.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.

During the November 21, 2008 proceeding, the prosecutor stated that the petitioner’s plea deal called for a

sentence of ten 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

that the sentence would be ten years incarceration plus

five years special parole and that he would not modify

those terms to account for any credit that the petitioner

was not statutorily entitled to. At the conclusion of this

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

of ten years incarceration and five years special parole.5

At the habeas trial, Cunningham testified on crossexamination that she was familiar with Judge Sullivan’s

policy of not adjusting sentences based on jail credits

earned in situations similar to 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 concluded that ‘‘the mere possibility that the court might have imposed a more lenient

sentence on account of this 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

of special parole as a result of the 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

impose any sentence otherthan ten years [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 of the record,

we conclude that the petitioner did not meet his burden
of establishing a reasonable probability that his sentence would have been different had Cunningham

renewed the jail credit claim at the sentencing proceeding. 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 of Correction, 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 of decision: ‘‘Judge Sullivan

was completely correct when he refused, and had apparently in the past

refused, to honor the request by counsel that a defendant receive jail credit.

I happen to be in complete accord with Judge Sullivan on that point. I also

do not award jail 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 a judge awards jail 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 of which, 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 awarded jail

credit in [this] case.’’

To be clear, Judge Fuger determined that there was no authority for Judge

Sullivan to award the petitioner a jail credit for the 286 days of incarceration

beginning on April 4, 2007, in docket number H12M-CR-07-0210233-T. The

petitioner did receive credit for 332 days of presentence incarceration beginning 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 ultra vires 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

of jail 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 of jail credit, but rather bases his claim on

the broad discretion afforded to a sentencing court. See, e.g., Weathers v.

Commissioner of Correction, 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.