FITZGERALD COUNCIL v. COMMISSIONER OF CORRECTION,

SC 18015/18016

Judicial District of Tolland 

     Habeas; Whether Trial Court Adequately Canvassed Petitioner Regarding "No Arrest" Condition of Garvin Plea Agreement; Whether Probable Cause for Arrest is Sufficient to Show that No Arrest Condition was Violated; Whether Petitioner was Entitled to Argue that new Arrest was Without Foundation; Whether Defense Counsel Rendered Ineffective Assistance.  The petitioner pleaded guilty under the Alford doctrine to assault on a police officer.  His plea was made pursuant to an agreement under State v. Garvin, 242 Conn. 296 (1997), which is a conditional plea agreement.  Here, the agreement provided that if the petitioner was not arrested prior to his sentencing date, he would receive five years imprisonment, execution suspended after three years, and three years of probation.  If he were to get arrested again, the arrangement would be withdrawn.  Prior to his sentencing, the petitioner was arrested for possession of marijuana.  Thus, the trial court voided the plea agreement and sentenced him to five years imprisonment.  The petitioner then filed a petition for a writ of habeas corpus, alleging, in count one, that the trial court deprived him of his due process rights in imposing the no arrest condition and in failing to allow him to withdraw his plea.  In counts two and three, he alleged, respectively, that his trial attorney was ineffective in misadvising him with respect to his parole eligibility and in failing to ensure that he was fully credited for his presentence incarceration.  The habeas court denied the petition as to counts one and two and granted it as to count three.  The court noted that the Supreme Court upheld the validity of no arrest conditions in plea agreements in State v. Stevens, 278 Conn. 1 (2006).  The court also rejected the petitioner's claim that the sentencing court was obligated to conduct an inquiry into the validity of his postplea arrest before imposing sentence.  It found that, while Stevens suggests that such an inquiry is warranted when an issue is raised concerning the validity of a postplea charge, Stevens had not been issued until years after the petitioner's sentencing.  The habeas court therefore concluded that the trial court was not bound to conduct the inquiry and that it was justified in relying on a finding that there was probable cause to support the postplea arrest in determining that the petitioner had violated the no arrest condition.  With respect to count two, the habeas court found that the petitioner had not proved that his attorney misadvised him regarding his parole eligibility.  As to count three, it ruled that the attorney was ineffective in that he failed to move to increase the bond in the underlying assault case after the petitioner was arrested and held in lieu of posting bond in the possession case.  It found that if he had done so, the petitioner would have been able to earn presentence confinement credits in the assault case, which would have resulted in an earlier release date.  The petitioner and the state appeal from the habeas court's judgment.