It seems almost silly to me to have to blog about an opinion that declares that yes, an arraignment is a critical stage in a criminal proceeding. But this was apparently a matter of first impression in Connecticut courts and there is a dissent and the state has been pushing this issue for years, so it might be worthwhile as my civic duty. We’ll see.
But let’s start with basics, since basics are where things go wrong most of the time. In Connecticut, when you get arrested, you have to be arraigned. You’re brought before a judge, usually within 48 hours of your arrest, and either a finding of probable cause is made (if it’s an “on-site” arrest) or not if the arrest was made by warrant. That’s it. There’s no grand jury indictment, despite the State’s best efforts.
So what happens at arraignment? Several things:
1. If you have retained a private attorney, that attorney should enter an appearance on that behalf and actually appear there with you.
2. If you have not or cannot retain a private attorney you can make an application to be represented by the public defender, who will then stand with you when the judge calls your name.
3. Your bond is reviewed and set.
4. 3 above affects your liberty: do you stay in custody or do you bond out?
Now lets imagine that a bond is set, but you cannot post that bond, meaning that you remain in custody – in jail – throughout the entire time your case remains pending.
You have a due process liberty interest in pre-sentence confinement credit. Which means that all the days you spent in jail because you could not post bond, are counted as part of your sentence.
It has to be that way, otherwise there would be an equal protection violation and liberty would depend on how much money you have.
So while you sit in jail, waiting for your sentence, you’re “accumulating” “credit”. And then you get sentenced and that credit is applied to your sentence, that is, subtracted from it and viola! It’s as if you started serving your sentence on the day you first were held in lieu of bond.
And if it were only that easy, we wouldn’t be there.
Because what complicates things is multiple cases. Some more background: the only way DOC knows you’re in custody is if there’s a bond set on you. So you need to have bond set in every file that you’re in custody for. Where it gets a little hairy is if you post that bond on the first case, but then can’t on the second.
Example: You get arrested for getting into a bar brawl and are charged with Assault 3rd, a misdemeanor. The court sets bond in the amount of $1000, which you promptly pay, so you’re “out on bond” in the street, living at home. Let’s say three weeks later, the guy you got into a fight with passes you on the street, you lose your shit and you take a gun and shoot him. He’s not injured (we’re a family blog, after all) but you’re arrested and charged with attempted assault in the first degree – a Class B felony – and now a judge sets bond in the amount of $100,000 which you can’t post so you’re held in jail.
Remember, DOC thinks you have only one charge, but actually you have two. Lets say a 6 months go by and the victim in the attempted shooting relocates to Indonesia and the State is going to drop that case. But the barfight has other witnesses so they want you to plead guilty to a misdemeanor and a sentence of 6 months in jail.
Great, you think. I’ve got 6 months in the bank! I’ll plead, they’ll apply the credit and I’ll go home today. Done.
Errr. No. DOC never had you in jail for that case, so there’s no credit to apply to your sentence. You have to do 6 months in jail to satisfy that sentence.
Well, now what? You blame your lawyer, obviously! He should’ve known and if he’d done his job I wouldn’t be here!
That’s exactly what happened in Odilio Gonzalez v. Commissioner [PDF]. Gonzalez argued that if his lawyer had simply asked the court to raise his bond a nominal amount on the barfight charge when he got picked up on the shooting charge, DOC would’ve recognized the existence of that case and he would have started “earning” credit. Had that happened, he’d have been a free man 6 months earlier.
Simple, right? No. Because the State, in its infinite wisdom, has for years argued that there is no right to have a competent lawyer advise you in regards to bond matters. That your bond is not a critical stage in a criminal proceeding and that there is no Constitutional right to have proper advice.
Luckily the court didn’t buy that, instead arguing what I’ve just laid out above. It concluded:
In the present case, it is clear that ‘‘potential substantial prejudice to the [petitioner’s rights inhered]’’ to the arraignment proceedings and the petitioner’s counsel had ‘‘the ability . . . to help avoid that prejudice . . . .’’ Jackson v. Miller, supra, 260 F.3d 775. Specifically, because the petitioner’s counsel failed to timely request that the petitioner’s bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required.
The petitioner was thus denied an essential liberty interest as the result of his counsel’s deficient performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner’s bonds on the first two cases. The fact that counsel’s performance affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel’s ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings.
Of course, we shouldn’t blame the state. Logic isn’t their strongest suit. Although I suspect they’d feel very differently if their liberty was on the line and their lawyer forgot to have their bond raised.