Lee v. Commissioner of Correction, 163 A.3d 702

Petitioner Dean S. Lee spent 27 days in pretrial confinement on case no. 1 (possession with intent to sell) from Sept. 2–28, 2010, then posted bond and was later charged, pleaded guilty, and sentenced for separate offenses (cases nos. 2 and 3) that occurred after he posted bond in case no. 1.
On Aug. 8, 2011, at an arraignment for later charges, trial counsel did not ask the court to increase bond on cases nos. 1 and 2; petitioner was confined in lieu of bond thereafter.
Petitioner pleaded guilty in Nov. 2011 to counts in cases nos. 2 and 3 and received concurrent sentences; the court left calculation of presentence credit to the Department of Correction.
Petitioner sought habeas relief claiming his trial counsel was ineffective for failing to request bond increases that would have preserved the 27 days of pretrial confinement credit for application to his eventual sentences.
The habeas court denied relief, concluding there was no sentence on case no. 1 to which the 27 days could be applied and that petitioner suffered no prejudice; the court also denied certification to appeal.
On appeal, petitioner limited relief sought to an order applying the 27 days from case no. 1 to his sentences in cases nos. 2 and 3; the appellate court dismissed the appeal, finding no abuse of discretion in denial of certification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas court abused discretion in denying certification to appeal	Lee: issue is debatable among jurists; certification should be granted	State: no reasonable jurist could disagree with habeas court’s conclusion	Denied — no abuse of discretion; appeal dismissed
Whether trial counsel was ineffective for not requesting bond increases at Aug. 8, 2011 arraignment	Lee: counsel’s omission denied him ability to preserve 27 days presentence credit for later sentences	State: even if performance deficient, no prejudice because 27 days were not tied to a sentenced file and § 18-98d bars application	Held: No prejudice; ineffective assistance claim fails
Whether statutory or constitutional right entitles Lee to apply pretrial credit from an un-sentenced charge to later sentences	Lee: seeks constitutional relief (Gonzalez-based) to apply credit	State: § 18-98d and public policy bar credit for confinement on a charge that was not later sentenced	Held: Statute and policy prohibit award; relief unavailable
Whether speculative plea-negotiation theory establishes prejudice	Lee: had bond been increased, plea negotiations on case no. 1 might have reduced sentences or preserved credit	State: speculative, unsupported by record; distinct from counsel failing to negotiate pleas	Held: Speculation insufficient to show prejudice

Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
Gonzalez v. Commissioner of Correction, 308 Conn. 463 (2013) (counsel must take steps to protect client’s statutory right to presentence confinement credit when that credit is tied to a sentence)
Washington v. Commissioner of Correction, 287 Conn. 792 (2008) (§ 18-98d excludes credit for time incarcerated on a prior conviction before sentencing on a separate, pending charge)