******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
DEAN S. LEE v. COMMISSIONER OF CORRECTION

(AC 38417)

DiPentima, C. J., and Sheldon and Blue, Js.

Argued March 21—officially released May 23, 2017

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

Craig A. Sullivan, assigned counsel, for the appellant (petitioner).

Denise B. Smoker, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Adrienne Maciulewski, deputy

assistant state’s attorney, forthe appellee (respondent).
Opinion

BLUE, J. The petitioner, Dean S. Lee, appeals following the denial of his petition for certification to appeal

from the judgment of the habeas court denying his

petition for a writ of habeas corpus. On appeal, the

petitioner claims that the habeas court (1) abused its

discretion in denying certification to appeal and (2)

improperly denied his ineffective assistance of counsel

claim based on trial counsel’s asserted failure to request

certain pretrial bond increases. Because the petitioner

did not demonstrate that the habeas court abused its

discretion in denying the petition for certification to

appeal, we dismiss the appeal.

On appeal, the petitioner seeks credit for twentyseven days of presentence confinement pursuant to

General Statutes § 18-98d.1 The presentence confinement for which he seeks credit occurred while he was

confined in lieu of bail for a charge on which he was

never sentenced. Instead, he subsequently was sentenced for two distinct crimes that were committed

after he had posted bond in the first matter. Under

these circumstances, both the relevant statute, § 18-

98d, and considerations of public policy prohibit the

award of presentence confinement credit that the petitioner seeks.

The following facts and procedural history are relevant to this appeal. On three separate occasions in 2010

and 2011, the petitioner was arraigned in the New Haven

judicial district, geographical area number 23, on four

different charges.2 Here is the chronology of relevant

events:

•—September 2, 2010. The petitioner was arraigned

on a warrant charging him with possession of narcotics

with intent to sell. The petitioner was confined in lieu

of bond.3 We will refer to this case4 as case no. 1.

•—September 28, 2010. The petitioner posted bond

on case no. 1, having spent twenty-seven days in pretrial

confinement. This twenty-seven day period of pretrial

confinement turns out to be the cynosure of the case

now before us.

•—October 23, 2010. The petitioner sold narcotics to

an undercover officer. We will refer to the case arising

from this incident as case no. 2.

•—June 3, 2011. The petitioner was arraigned on case

no. 2.5 The court, Licari, J., set bond of $5,000. The

petitioner posted bond on the same date.

•—July 25, 2011. The petitioner allegedly twice sold

narcotics to cooperating witnesses. We will refer to the

cases arising from these incidents as case no. 3 and

case no. 4.

•—August 8, 2011. The petitioner was arraigned on

case no. 3

6 and case no. 4.7 The court, Frechette, J., set
bond of $100,000 in each case. At the arraignment, the

petitioner’s trial attorneys did not request bond

increases in cases nos. 1 and 2. The petitioner was

confined in lieu of bond.

•—November 21, 2011. The petitioner pleaded guilty

in cases nos. 2 and 3 to two counts of possession of

narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The court, Holden, J., sentenced

him in each case to ten years incarceration, execution

suspended after five years, followed by a conditional

discharge for three years. The sentences were to be

served concurrently. The total effective sentence, therefore, was ten years, execution suspended after five

years, followed by a conditional discharge for three

years. Imposition of the sentence was stayed until January 5, 2012. At sentencing, the petitioner requested that

the court order presentence confinement credit for the

confinement spent in case no. 1. In response, the court

stated that, ‘‘[h]e’s entitled to the credit afforded by the

Department of [Correction].’’

•—January 5, 2012. The stay was lifted on the sentences imposed in cases nos. 2 and 3. The prosecutor

entered a nolle prosequi with respect to cases nos. 1

and 4 as well as an unrelated earlier charge.

•—July 22, 2013. The court granted a motion for ‘‘jail

credit’’ in case no. 2 and ordered credit from August 8,

2011 to October 6, 2011.

•—September 12, 2013. The court granted a motion

for ‘‘jail credit’’ in case no. 3 and ordered credit from

August 8, 2011 to January 5, 2012.

On July 26, 2012, the petitioner, initially self-represented, filed an application for a writ of habeas corpus

in the Superior Court for the judicial district of Tolland.

His amended petition, filed by appointed counsel,

claimed that his trial counsel had been ineffective

because ‘‘she failed to ensure that the petitioner would

receive presentence jail credit for the time he spent

incarcerated on all of his pending cases.’’ The amended

petition requested that the judgments imposed in cases

nos. 2 and 3 be vacated, that the petitioner be released

from confinement, and that the court grant ‘‘whatever

other relief that law and justice require.’’

The petition was tried to the habeas court, Fuger, J.

On August 13, 2015, the habeas court denied relief. It

stated that, ‘‘[t]here is no sentence of any court anywhere to which those twenty-seven days of jail credit

can be applied.’’ The habeas court further reasoned

that, ‘‘even if it was deficient performance not to request

an increase in bond [in cases nos. 1 and 2], there is no

prejudice that accrued to [the petitioner] because he

did, in fact, receive the jail credit he would have

received had the bond been raised in both files on

August 8, 2011.’’ On September 11, 2015, the habeas

court subsequently denied a petition for certification
to appeal. An appeal to this court followed.

At oral argument before this court, the petitioner

made it clear that he was no longer seeking to vacate

any of his convictions or sentences. The sole remedy

he seeks is a judicial order that twenty-seven days of

pretrial confinement credit, served with respect to case

no. 1, be applied to the sentences imposed on cases

nos. 2 and 3. The petitioner claims that the habeas

court abused its discretion in denying his petition for

certification to appeal from the denial of his petition

for a writ of habeas corpus with respect to his claim of

ineffective assistance of counsel. Specifically, he argues

that because this issue is debatable among jurists of

reason, a court could resolve the issues differently or

the issues should proceed further, the habeas court

abused its discretion in denying his petition for certification to appeal. We disagree.

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the [denial] 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 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 considerthe 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.’’ (Internal

quotation marks omitted.) Duncan v. Commissioner

of Correction, 171 Conn. App. 635, 644–45, A.3d

(2017). With these principles in mind, we turn to the

substantive claims of the petitioner.

The petitioner claims that the habeas court improperly concluded that, even if his trial counsel provided

deficient performance in not seeking bond increases

on cases nos. 1 and 2 at his August 8, 2011 arraignment,
he was not prejudiced as a result. With respect to the

issue of prejudice, we conclude that the petitioner’s

argument is unavailing and, therefore, his claim of ineffective assistance of counsel must fail. As a result, we

conclude that the habeas court did not abuse its discretion in denying the petitioner’s certification to appeal

from the denial of the petition for habeas corpus. See

Duncan v. Commissioner of Correction, supra, 171

Conn. App. 635 (reviewing court considered merits of

petitioner’s claims as to performance and prejudice and

concluded that because there was no prejudice, petitioner could not establish abuse of discretion in denial

of certification to appeal).

The question of whether a petitioner’s constitutional

right to the effective assistance of counsel has been

violated is governed by a familiar test. To succeed on

a claim of ineffective assistance of counsel, a habeas

petitioner must satisfy the two-pronged test articulated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 674 (1984). The petitioner has the

burden to establish that ‘‘(1) counsel’s representation

fell below an objective standard of reasonableness, and

(2) counsel’s deficient performance prejudiced the

defense because there was a reasonable probability

that the outcome of the proceedings would have been

different had it not been for the deficient performance.’’

(Emphasis in original.) Johnson v. Commissioner of

Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).

It is well established that § 18-98d ‘‘excludes from

[pretrial confinement] credit any time that a prisoner

spends incarcerated for a prior conviction before sentencing on a separate, pending charge.’’ Washington v.

Commissioner of Correction, 287 Conn. 792, 800, 950

A.2d 1220 (2008). The petitioner does not argue that he

is entitled to such credit as a matter of statutory right.

Rather, he claims a violation of his right to effective

assistance of counsel under the sixth amendment to

the United States constitution, invoking Gonzalez v.

Commissioner of Correction, 308 Conn. 463, 68 A.3d

624, cert. denied sub nom. Dzurenda v. Gonzalez,

U.S. , 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013). Gonzalez, however, is readily distinguishable.

In that case, the petitioner, Odilio Gonzalez, like the

petitioner here, was arrested on a series of occasions

and, like the petitioner, was represented by counsel

who failed to request a bond increase on an earlier

charge when he was subsequently arraigned on a later

charge. Id., 465–66. Our Supreme Court held that the

constitutional requirement of effective assistance

requires 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.’’ Id., 491.

In the present case, the habeas court assumed for

the sake of argument, as we did, that the petitioner’s
trial counsel, in not requesting bond increases in cases

nos. 1 and 2 on August 8, 2011, failed to provide effective

representation. The similarities between Gonzalez and

the petitioner’s case, however, end there. Gonzalez was

sentenced on the charge for which he had been held

in pretrial confinement during the disputed period of

time. Our Supreme Court consequently found prejudice

on the ground that ‘‘counsel’s failure to request that the

bonds be raised at the third arraignment prejudiced the

petitioner by exposing him to seventy-three additional

days in jail for which he received no credit.’’ (Internal

quotation marks omitted.) Id., 490.

The petitioner in the present case, in contrast, was

not sentenced on the charge in case no. 1 for which he

had been held in confinement during the twenty-seven

days in dispute here. Even if his trial counsel successfully had requested a bond increase in case no. 1 on

August 8, 2011, the petitioner’s current sentences would

not have been reduced because no sentence was ever

imposed in case no. 1. His sentences instead were

imposed in cases nos. 2 and 3. Although the trial court

in its discretion could have considered such pretrial

confinement in its sentencing determination; Gonzalez

v. Commissioner of Correction, supra, 308 Conn.

467–68 n.3; the trial court here chose to leave calculation of the appropriate credit to the Department of

Correction. Under these circumstances, the petitioner

is unable to establish that his trial counsel’s failure to

request a bond increase on the charge in case no. 1

resulted in any ascertainable prejudice.

The petitioner attempts to counter this reasoning by

arguing that, ‘‘had such requests been made and

granted, there was a reasonable probability that the

petitioner and the state would have negotiated a plea

agreement’’ on the charge in case no. 1. This argument

is entirely speculative and is not based on any finding

of either the trial court or the habeas court.8 We also

note that, as mentioned, the petitioner at oral argument

before this court expressly abandoned any argument

that either his guilty pleas or his sentences should be

vacated on the ground of ineffective assistance of counsel.9 The sole relief he seeks is a judicial order that the

sentences he is now serving in cases nos. 2 and 3 be

credited with the twenty-seven days of pretrial confinement spent on the charge in case no. 1. Under these

circumstances, this is relief we are unable to grant.

The award of credit that the petitioner seeks not only

would be contrary to the express requirements of § 18-

98d, but also would conflict with well established public

policy. ‘‘The principle that extra time served on a criminal sentence may not be banked is strongly rooted in

the public policy that individuals should not be encouraged to commit crimes knowing they have a line of

credit that can be applied against future sentences.’’

(Internal quotation marks omitted.) Payton v. Albert,
209 Conn. 23, 34, 547 A.2d 1 (1988), overruled in part

on other grounds by Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000). That

public policy is particularly compelling in the context of

the present action. The crimes for which the petitioner

has been convicted and sentenced occurred after the

period of pretrial confinement for which he now seeks

credit. An order mandating such credit would involve

moral hazard. The knowledge of a person who has been

released on bond after a period of pretrial confinement

on an earlier charge that he now has a line of credit

that can be applied to a sentence received for future

crimes at least would increase marginally his incentive

(or reduce his disincentive) to commit such future

crimes. We do not choose to proceed down this path.

For these reasons, we conclude that the habeas court

properly rejected the pretrial confinement credit claim

made by the petitioner. Because no reasonable jurist

could disagree with this conclusion, we further determine that the habeas court did not abuse its discretion

in denying the certification to appeal with respect to

this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1 General Statutes § 18-98d (a) (1) provides in relevant part: ‘‘Any person

who is confined to a community correctional center or correctional institution for an offense committed on or after July 1, 1981 . . . because such

person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of

days which such person spent in such facility from the time such person

was placed in presentence confinement to the time such person began

serving the term of imprisonment imposed . . . .’’

2 A nolle prosequi was eventually entered on a fifth charge involving an

earlier arrest, which is unimportant for purposes of the pretrial confinement

credit issues presented by the petitioner in this appeal.

3 The record does not reflect the bond amount.

4 Docket No. CR10-0109371.

5 Docket No. CR11-0118215.

6 Docket No. CR11-01200324.

7 Docket No. CR11-0120325.

8

In addition to ignoring the absence of trial or habeas court findings, the

petitioner fails to discuss the mechanics of the alternative scenario he

proposes. The plea agreement into which the petitioner actually entered

involved pleas and concurrent sentences for two different crimes—the

charges in cases nos. 2 and 3. The alternative agreement he now proposes

would have involved a plea agreement involving only one crime—the charge

in case no. 1. We simply do not know whether the prosecutor and the court

would have agreed to such an arrangement if proposed. In any event, the

petitioner does not claim that his trial counsel was ineffective in failing to

propose an agreement along these lines on November 21, 2011. His sole

claim is that his trial counsel was ineffective for failing to request a bond

increase on August 8, 2011. These claims are entirely distinct.

9

In addition, there is no evidence in the record that the petitioner has,

at any stage of the proceedings, testified that, had he known he would not

be entitled to the presentence confinement credit he now seeks, he would

not have accepted the negotiated settlement in question.