Orcutt v. Commissioner of Correction

Opinion

The petitioner, James Orcutt, filed this habeas action, alleging that the sentence he had received for certain drug offenses violated his right to be sentenced in accordance with the terms of his plea agreement as mandated by Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). 1 Following a trial, the habeas court, Fuger, J., rendered judgment granting the petitioner’s amended petition for a writ of habeas corpus, from which the respondent, the commissioner of correction, appealed, 2 claiming that (1) the petitioner failed to allege and prove cause and prejudice to excuse his procedural default, (2) the findings of the habeas court concerning the intent of the parties to the plea agreement were clearly erroneous, and (3) the habeas court exceeded its authority by effectively resentencing the petitioner. We reject the respondent’s first two claims and, therefore, uphold the habeas court’s conclusion that the petitioner is entitled to be resentenced in accordance with the terms of his plea agreement. We agree with the respondent, however, that the habeas court should have directed the trial court to resentence the petitioner.

*728 The record reveals the following relevant facts and procedural history. On January 14, 2001, the petitioner was arrested and charged, under Docket No. HHD-CR-01-0176626-T (Hartford case), with possession of narcotics, possession of drug paraphernalia and sexual assault in the first degree. The petitioner was in pretrial custody on these charges a total of 597 days. On March 6, 2003, the petitioner posted bond and was released.

On May 28, 2003, in accordance with a plea agreement, the petitioner pleaded guilty in the Hartford case to burglary in the second degree, unlawful restraint in the second degree and possession of narcotics. The trial court delayed sentencing, however, and permitted the petitioner to remain free on bond so that he could spend time with his mother, who was severely ill. 3 On July 21, 2003, before the petitioner’s sentencing in the Hartford case, he was arrested and charged, under Docket No. H12M-CR-03-0189630-S (Manchester case), with use of drug paraphernalia, attempted possession of under four ounces of marijuana, possession of drug paraphernalia within 1500 feet of a school and possession of narcotics.

On August 1, 2003, the petitioner was sentenced in the Hartford case to a term of imprisonment of ten years, execution suspended after five years, and five years probation (Hartford sentence). Thereafter, the respondent posted 597 days of presentence confinement credit to the petitioner’s Hartford sentence, reflecting his pretrial incarceration in that case and effectively advancing his release date in the Hartford case to December 12, 2006.

Approximately five weeks after the petitioner began serving his Hartford sentence, Attorney Jon D. Golas *729 filed an appearance for the petitioner in the Manchester case. 4 The petitioner informed Golas that he had pleaded guilty in the Hartford case the previous month in return for a sentence that required him to serve a five year term of imprisonment. 5 The petitioner authorized Golas to attempt to negotiate a plea agreement pursuant to which he would be required to serve one additional year in prison upon the completion of his Hartford sentence.

On October 2, 2003, Golas attended a pretrial conference in the Manchester case with the trial court, Norko, J., and Adam Scott, an assistant state’s attorney (prosecutor). At the conference, Golas proposed a plea agreement pursuant to which the petitioner would agree to plead guilty to possession of narcotics in the Manchester case in return for a six year sentence, to run concurrently with the five year sentence that he had received in connection with the Hartford case. Jail credits were not discussed during the conference. According to Golas, however, it was his understanding, as well as the understanding of the trial court and the prosecutor, that the petitioner would serve one additional year of imprisonment following the expiration of the Hartford sentence. 6 The prosecutor and the court agreed to the proposed plea bargain.

*730 Following the pretrial conference, Golas informed the petitioner of the proposed plea agreement. Golas explained to the petitioner that, under that proposed agreement, the petitioner would serve one additional year after completing his Hartford sentence. The petitioner understood this to mean that he would be released from the sentence imposed in the Manchester case one year after his release date of December 12, 2006, in the Hartford case. On the basis of that understanding, the petitioner agreed to the plea bargain that Golas had negotiated.

Thereafter, on October 22, 2003, the petitioner pleaded guilty in the Manchester case. Prior to the plea canvass, the prosecutor set forth the terms of the plea agreement on the record, explaining that the petitioner had agreed to plead guilty in return for a six year term of imprisonment, and that that sentence would run concurrently with the five year sentence that the petitioner already was serving in the Hartford case. The petitioner indicated that he understood and agreed to the terms of the plea agreement, and the trial court sentenced the petitioner in accordance with the prosecutor’s representations (Manchester sentence).

Shortly after his sentencing in the Manchester case, the petitioner met with a counselor at the correctional center where he was incarcerated and was informed that his newly calculated release date was October 11, 2009. The petitioner immediately contacted Golas and explained to him that this release date was incorrect because it would result in an effective sentence that was nearly two years longer than the sentence to which he had agreed under the terms of the plea agreement in the Manchester case. Golas contacted the records department of the department of correction, which confirmed that the petitioner was not scheduled to be released from his Manchester sentence until October 11, 2009. Golas also learned that the petitioner was not *731 entitled to be released until that date because the 597 days of presentence confinement time that he accrued while awaiting the disposition of the Hartford case may be credited toward his Hartford sentence only, and not toward his Manchester sentence. Thus, the concurrent six year sentence that the trial court had imposed in the Manchester case did not extend the petitioner’s total effective period of incarceration by one year but, rather, by nearly three years. 7

Golas then contacted the prosecutor in the Manchester case to inform him that the sentence that the trial court imposed in that case did not accurately reflect the agreement of the parties to the plea bargain. The prosecutor expressed a willingness to agree to a modification of the Manchester sentence pursuant to which the petitioner would be resentenced to a five year term of imprisonment, to run concurrently with the Hartford sentence, if the petitioner would agree to waive his right to sentence review. 8 The petitioner, however, rejected the prosecutor’s offer.

*732 Subsequently, Golas informed the petitioner that he could file a motion to vacate the petitioner’s guilty plea in the Manchester case on the ground that that plea was induced by the promise of a sentence that he did not receive. The petitioner instructed Golas not to pursue that option because he wanted to seek the advice of new counsel as to whether he was entitled to enforce the terms of the plea agreement as he understood them, namely, that he would receive a sentence resulting in his release one year following the completion of the Hartford sentence.

Sometime thereafter, the petitioner, acting pro se, filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. 9 After receiving no response from the court regarding his motion to correct, 10 the petitioner commenced this habeas action on August 25, 2004. 11 By letter dated September 9, 2004, the petitioner also inquired of the clerk of the court in Manchester about the status of his motion to correct an illegal sentence. 12 The petitioner, however, never received a response to that letter.

*733 On August 19, 2005, the petitioner filed an amended petition for a writ of habeas corpus, 13 alleging, inter alia, that his guilty plea in the Manchester case “was induced by the promise of the state that he would serve a total effective sentence of [six] years, taking into account his [five] year sentence [in the] Hartford [case], with the expectation that the sentences would result in a maximum discharge date of on or about [December 10, 2007].” Pursuant to Practice Book § 23-30, 14 the respondent filed a return to the amended habeas petition in which the respondent raised the affirmative defense that the petitioner’s claim was procedurally defaulted because he had failed to pursue it in the trial court or on direct appeal; see Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001) (“before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to [Practice Book] § 43-22 15 with the trial court”); and because the petitioner could not establish cause and prejudice to excuse the default. In accordance with Practice Book *734 § 23-31, 16 the petitioner filed a reply to the return. That reply provided simply that the “ [petitioner does not have to show cause and prejudice.” 17

Thereafter, at a pretrial hearing on the habeas case, counsel for the respondent made an oral motion to dismiss the petitioner’s Santobello claim on grounds of procedural default. Specifically, counsel for the respondent asserted that, under Cobham v. Commissioner of Correction, supra, 258 Conn. 38, the petitioner first was required to pursue his Santobello claim in the trial court by way of a motion to correct an illegal sentence. The respondent further stated that, “in fact, the petitioner has filed a motion to correct an illegal sentence with the trial court. That motion to correct . . . has not yet been ruled [on]. I’m not sure exactly what the status of it is, but I think that it would be premature for this court to look at it before the trial court has had an opportunity to rule on [it] . . . .” The habeas court denied the respondent’s motion, explaining, inter alia, that the petitioner was entitled to an opportunity to establish cause and prejudice for any such procedural default. 18 The habeas court also noted, however, that the respondent was free to renew that claim at a later time.

Subsequently, on January 27, 2006, the habeas court conducted a trial on the allegations of the amended *735 habeas petition. The petitioner and Golas testified and counsel for the respondent called no witnesses. In closing argument, counsel for the petitioner maintained, inter alia, that the petitioner’s Santobello claim was not procedurally defaulted because the petitioner had filed a motion to correct an illegal sentence but had received no response from the trial court. The petitioner’s counsel also noted that the petitioner subsequently had forwarded a letter to the court inquiring as to the status of his motion to correct but again received no response from the court. The petitioner’s counsel further asserted that, in view of the fact that petitioner had been incarcerated and was acting pro se when he filed his habeas petition and submitted his follow-up letter, it would be unfair and improper for the court to reject his claim as procedurally defaulted under Cobham v. Commissioner of Correction, supra, 258 Conn. 38. 19

At the conclusion of the hearing, the habeas court rendered judgment granting the amended habeas petition. 20 In its oral ruling, the habeas court observed that, because the prosecutor in the Manchester case had not testified, there was no direct evidence of his understanding of the terms of the plea agreement. The court further noted that the only evidence of the prosecutor’s intent was the uncontroverted testimony of Golas, whom the court credited fully. Relying primarily on that *736 testimony, the habeas court found that the Manchester sentence did not comport with the parties’ understanding as to how much time the petitioner actually would be required to serve. Specifically, the habeas court found that “the intent of the parties in negotiating [the] [plea] agreement [was] that the petitioner would finish out his five year sentence in Hartford and then serve one additional year.” The habeas court then reiterated “that it was the intent of all parties that when the Hartford sentence expired on [December 10, 2006], the petitioner would then serve an additional year, which would have made his expected release date in the vicinity of [December 10, 2007].” To effectuate its finding, the habeas court ordered the respondent “to treat the Manchester [sentence as if it were] a total effective sentence of one year to serve consecutive [ly] to the Hartford sentence,” thereby requiring a significant modification in the petitioner’s release date, that is, from October, 2009, to December, 2007. 21 The habeas court did not expressly refer to the respondent’s claim of procedural default or to the issue of cause and prejudice in its oral ruling. 22

On appeal, the respondent contends that the habeas court improperly addressed the merits of the petitioner’s Santobello claim because the petitioner had procedurally defaulted on that claim and had failed to plead or establish cause and prejudice. The respondent further contends that, even if this court concludes that the habeas court properly reached the merits of the petitioner’s claim, the habeas court improperly determined that the concurrent six year sentence in the Manchester *737 case did not reflect the plea bargain to which the petitioner and the state had agreed. Finally, the respondent maintains that the habeas court does not have the authority to resentence the petitioner, which is reserved exclusively for the trial court.

I

We first address the respondent’s claim that the habeas court should not have reached the merits of the petitioner’s claim because of the petitioner’s procedural default and failure to demonstrate cause and prejudice to excuse that default. It is true that, under Cobham v. Commissioner of Correction, supra, 258 Conn. 38, the petitioner first was required to raise his Santobello claim via a motion to correct an illegal sentence or on direct appeal. As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies. In the present case, the petitioner claims that, under the circumstances, his unsuccessful efforts to have his motion to correct docketed and heard were sufficient to warrant a finding by the habeas court that his habeas petition was not subject to dismissal for procedural default. The respondent contends that there is nothing in the record to indicate that the habeas court made such a finding, and, in any event, the record is inadequate to support any such finding.

As we have indicated, the habeas court made no express finding on the threshold issue of procedural default. Because the habeas court addressed the merits of the petitioner’s Santobello claim, however, and because a finding that the petitioner had procedurally defaulted on his Santobello claim necessarily would have precluded the habeas court’s consideration of the merits of the petitioner’s claim, we must presume that the habeas court implicitly decided the respondent’s *738 procedural default claim in the petitioner’s favor. 23 Having failed to seek an articulation by the habeas court on the issue of procedural default, 24 the respondent cannot now complain that the record does not contain an express finding by the habeas court on that issue. “[T]o the extent that the court’s decision was ambiguous, it was the [respondent’s] duty ... to seek an articulation . . . . It is . . . the responsibility of the appellant to move for an articulation or rectification of the record [when] the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. . . . [A]n articulation is appropriate [when] the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis [on] which the trial court rendered its decision, thereby sharpening the issues on appeal.” 25 (Citations omitted; internal quotation marks *739 omitted.) Smith v. Muellner, 283 Conn. 510, 537, 932 A.2d 382 (2007); see also Practice Book §§ 61-10 and 66-5. We conclude, therefore, that the habeas court determined, albeit by implication, that the petitioner had not procedurally defaulted.

II

We turn next to the respondent’s claim that the record does not support the conclusion that the petitioner had not procedurally defaulted. Specifically, the respondent contends that the petitioner was required to pursue his motion to correct an illegal sentence in the trial court, and that his failure to do so constituted a procedural default. In evaluating this claim, we must consider the evidence, including any reasonable inferences that may be drawn therefrom, in the light most favorable to the petitioner. E.g., Smith v. Greenwich, 278 Conn. 428, 440-41, 899 A.2d 563 (2006). Viewed in that light, we *740 conclude that the evidence was sufficient to support the habeas court’s implicit determination that the petitioner had not procedurally defaulted and, therefore, that the petitioner was entitled to a decision on the merits of his Santobello claim.

According to the petitioner, he filed his motion to correct an illegal sentence upon learning of the respondent’s calculation of his release date for the Manchester sentence. After receiving no indication from the court that it had received the motion, the petitioner sent a letter to the court inquiring about the status of the motion. The petitioner testified that he also heard nothing from the court in response to that letter. At the time, the petitioner was incarcerated and proceeding pro se. Although the record does not reveal precisely when the petitioner filed his motion to correct, we do know that, by the time of the trial in the petitioner’s habeas action in late January, 2006, nearly seventeen months had transpired from the date that the petitioner had forwarded his follow-up letter to the trial court in early September, 2004. Under these highly unusual circumstances — and with particular regard for the fact that the petitioner was incarcerated and, for a period of time, acting pro se 26 — we cannot conclude that the *741 habeas court was required to find that the petitioner had procedurally defaulted by not doing more in pursuit of his motion to correct an illegal sentence. 27

Ill

We now address the respondent’s contention that the habeas court’s findings regarding the terms of the plea bargain in the Manchester case were clearly erroneous. We also reject this claim.

We begin our analysis with the applicable standard of review. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed [on appeal] unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The 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.” (Citation omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007). Thus, the court’s factual findings are entitled to great *742 weight. E.g., Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 53, 861 A.2d 473 (2004). Furthermore, “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 291, 933 A.2d 256 (2007).

The task of the habeas court was to ascertain, on the basis of the evidence presented, the actual intent of the parties to the plea agreement in the Manchester case. E.g., State v. Nelson, 23 Conn. App. 215, 219, 579 A.2d 1104 (“[when] there is a dispute as to the terms of a plea agreement, [the] analysis turns on the real intent of the parties” [internal quotation marks omitted]), cert. denied, 216 Conn. 826, 582 A.2d 205 (1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248 (1991). As we previously have explained, the habeas court found that the parties to the plea agreement intended for the petitioner to receive a sentence that would result in his release from prison on or about December 10, 2007, one year following the expiration of his Hartford sentence on December 10, 2006. In making this finding, the habeas court relied primarily on the testimony of Golas, who stated unequivocally that it was his intent and the intent of the petitioner, the trial court and the prosecutor that the petitioner would serve one additional year following the expiration of the Hartford sentence. After noting that Golas is an officer of the court who “has nothing to gain in this matter,” the habeas court characterized Golas’ testimony as “clear and credible . . . .” Furthermore, the petitioner’s testimony concerning his understanding of the agreement was entirely consistent with Golas’ testimony. 28 Finally, the *743 respondent adduced no evidence, such as testimony from the prosecutor in the Manchester case, that would have cast serious doubt on the petitioner’s claim. In such circumstances, we see no reason to disturb the findings of the habeas court, which, as we have indicated, are entitled to great weight. 29

Although we defer to the reasonable findings of the habeas court regarding the intent of the parties to the plea agreement, we agree with the respondent that the habeas court improperly ordered the respondent to establish a new release date for the petitioner. In doing so, the habeas court effectively resentenced the petitioner. This was inappropriate.

As the habeas court explained, there was more than one sentence that the trial court could have imposed that would have effectuated the parties’ intent as determined by the habeas court. 30 In such circumstances, the trial court should be afforded the opportunity to determine which of those sentences to impose. See Cobham v. Commissioner of Correction, supra, 258 *744 Conn. 39 (only trial court has authority to resentence defendant to conform to terms of plea agreement). We therefore agree with the respondent that the habeas court should have directed the trial court to resentence the petitioner in accordance with the habeas court’s finding that, under the plea agreement, the petitioner is entitled to receive a sentence that will result in his release one year after the expiration of his Hartford sentence.

The judgment is affirmed insofar as the habeas court concluded that the petitioner’s plea agreement in the Manchester case requires the petitioner to serve one additional year of imprisonment following the expiration of his sentence in the Hartford case; the judgment is reversed insofar as it directs the respondent to establish a new release date for the petitioner and the case is remanded to the habeas court with direction to issue a writ of habeas corpus directing that the petitioner be resentenced by the trial court in accordance with the terms of the plea agreement in the Manchester case.

In this opinion the other justices concurred.