Opinion
TSRCV134005026S
12-10-2015
Kenya Brown v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
On September 18, 2003, the petitioner, Kenya Brown, entered guilty pleas, in six separate, criminal files, to attempted murder; three counts of robbery first degree; one count of robbery second degree; attempted kidnapping first degree; illegal possession of a weapon in a motor vehicle; possession with intent to sell narcotics; and forgery second degree. These pleas were entered under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and the petitioner received a total, effective sentence of twenty years imprisonment. He alleges in his amended petition for habeas corpus relief that his public defenders, Attorneys Myles Gerety and Joseph Bruckman rendered ineffective assistance and that the trial judge's canvass of his guilty pleas was insufficient.
Inadequate Plea Canvass Claim
The petitioner generally avers in the third count that Judge Damiani's plea inquiry failed to ensure that the petitioner's guilty pleas were entered knowingly, intelligently, and voluntarily. The respondent's return raises the special defense of procedural default for failure to raise the alleged inadequacy of the plea canvass through a motion to withdraw those pleas or by appeal. It is undisputed that these procedural vehicles were never utilized by the petitioner. In his reply to the return, the petitioner merely reasserts, as justification for procedural default, the ineffectiveness of trial counsel.
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, 409.
In this case, the petitioner submitted no evidence of any good cause justifying his failure to assert any previously omitted trial misconduct claim at trial or on appeal. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992).
Therefore, the petitioner has failed to prove good cause and prejudice for these claims of trial level errors, and the third count provides no basis for habeas relief.
Ineffective Assistance re Attorney Gerety
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by prevailing, professional norms. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57, 662 A.2d 718 (1995). Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty, Id., 151. See Carraway v. Commissioner, 317 Conn. 594, 600, fn 6, 119 A.3d 1153, indicating that statements in Copas adding an additional measure of prejudice were overruled sub silencio.
Attorney Gerety was appointed to represent the petitioner, for his cases pending in Part A of the Fairfield J.D. sometime in late 2002 or early 2003. However, because the petitioner resisted Attorney Gerety's assistance, Attorney Gerety sought the appointment of a new public defender, namely Attorney Bruckman. This request was granted, and Attorney Bruckman replaced Attorney Gerety as defense counsel. As a result, Attorney Gerety played no role in advising the petitioner with respect to his decision to plead guilty in September 2003.
The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97, 503 A.2d 136 (1985); State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669 (1991); p. 412. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea, Reed v. Reincke, 155 Conn. 591, 597, 236 A.2d 909 (1967); State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984); McKnight v. Commissioner, 35 Conn.App. 762, 764, 646 A.2d 305 (1994), cert. denied, 231 Conn. 936, 650 A.2d 173 (1994); State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407 (1991).
This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971); Reed v. Reincke, supra, p. 601; Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979).
A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea. Our Supreme Court has addressed this issue, also. In Dukes v. Warden, supra 343-44, the Court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of preplea, constitutional deficiencies. See also McKnight v. Commissioner, supra .
Several federal court cases have arrived at the same conclusions. In Siers v. Ryan, 773 F.2d 37 (CA3, 1985), cert. den. 490 U.S. 1025, 109 S.Ct. 1758, 104 L.Ed.2d 194. A federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel. The petitioner later pled guilty to a robbery charge. The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness, Id., 42.
In U.S. v. Greene, 722 F.Supp. 1221 (E.D. Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity. At p. 1222, the U.S. District Court held the petitioner's guilty plea " bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered."
In U.S. v. Winfield, 960 F.2d 970 (CA 11, 1992), a petitioner tried to attack his conviction, following a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations. At p. 974, fn. 2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.
In Wilson v. U.S., 962 F.2d 996 (CA 11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain preplea issues. The U.S. District Court refused to conduct a habeas hearing and dismissed the petition. The U.S. Court of Appeals affirmed the District Court stating. " the court did not err in dismissing [the petitioner's] claim, as it involved pre-plea issues, without conducting an evidentiary hearing, " Id., 997.
In Fields v. Maryland, 956 F.2d 1290 (CA 4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea. He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings. The U.S. District Court dismissed the petition. The U.S. Court of Appeals upheld the dismissal indicating, " [i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation." Id., 1294. The Court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and is unrelated to it, the merits of the petitioner's claims need not be reached, Id., 1296.
Finally, in Taylor v. Whitley, 933 F.2d 325 (CA. 5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense. The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition. The Court of Appeals stated that a " voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later judicial decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant's counsel were incorrect." Id., 327.
In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim. The Court of Appeals rejected this argument stating, " the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect, " Id., 329 (emphasis added). The Court went on to indicate that the absence of advice regarding the double jeopardy issue " does not affect the voluntary and intelligent nature of his pleas, " Id., 331.
The Taylor case, supra, is significant in that points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea. What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielded by entering the plea, such as the right to confront and cross examine witnesses. There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of preplea defects.
The federal cases cited above are consistent with and bolster the holding of Dukes v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.
Consequently, the petitioner has waived any claims of deficient representation by Attorney Gerety relating to activities antecedent to the entry of those guilty pleas.
Ineffective Assistance re Attorney Bruckman
The petitioner specifically alleges that Attorney Bruckman provided deficient legal representation by failing to move to have the petitioner evaluated for competency; by failing to advise the petitioner properly concerning the consequences of his guilty pleas; by failing to advise the petitioner as to the strengths and weaknesses of the prosecution and defense cases; by failing to present expert testimony concerning how the petitioner's mental status affected his capacity to commit the crimes with which he was charged; and by failing to investigate the existence of potential defense witnesses.
A.
As to the specification of ineffective assistance that Attorney Bruckman ought to have sought a mental examination of the petitioner to ascertain whether he understood the nature of the charges and proceedings against him and whether he could assist his attorney in his own defense, the court finds that the petitioner has failed to meet his burden of proving this allegation by a preponderance of the evidence.
Although the petitioner had a history of psychological instability, his mental disorder was behavioral rather than one diminishing comprehension. Both of his public defenders testified at the habeas trial that the petitioner was bright, articulate, and fully cognizant of the crimes with which he was charged. Neither defense counsel discerned anything from their discussions with the petitioner or his behavior which suggested in the slightest that he lacked the ability to understand the charges against him, the state of the evidence, or the nature of the proceedings in which he was immersed.
Although the petitioner hoped that he might secure a plea offer which entailed a shorter prison term than was obtained and imposed, the petitioner possessed the mental capacity to work with Attorney Bruckman in his own defense. The court found the testimony of Attorneys Bruckman and Gerety entirely credible and corroborated by the petitioner's responses during his plea hearing on September 18, 2003.
B.
The petitioner testified at the habeas trial that his public defender never explained the elements of the crimes alleged nor the potential punishments attending conviction of those crimes. He further avowed that Attorney Bruckman informed him that the sentence recommendation was for ten years imprisonment followed by ten years special parole. He accounted for his responses at his plea hearing that he understood that the recommendation was for twenty years confinement, that he was satisfied with Attorney Bruckman's legal assistance, and that he acknowledged knowingly giving up certain rights by pleading guilty, to a state of depression and hallucinations induced by his new medications prescribed to control that depression. The court finds his testimony unworthy of belief.
The petitioner tried to obtain a more lenient sentence by offering to testify against others who had identified for him owners of valuable jewelry and were willing to purchase purloined items from him afterward. He carefully surveilled his victims over significant periods of time. He plotted and carried out several armed robberies, which took advantage of his detailed knowledge of his victim's vulnerabilities, with cold-blooded mercilessness. He employed multiple aliases and false dates of birth in the past and had extensive contact with the criminal justice system in Connecticut previously.
Contrary to his habeas testimony and consistent with the observations and testimony of Attorneys Bruckman and Gerety, the court finds that the petitioner was legally competent to enter the guilty pleas; that his defense counsel was diligent and complete in explaining the nature of the crimes and penalties thereto; discussed the strengths and weaknesses presented by the evidence with him; that he displayed a very exhaustive memory of the victims and circumstance surrounding these crimes; that he entered his guilty pleas voluntarily and with full knowledge of the rights he was giving up; and that he was aware that the sentence recommendation was for a total, effective term of twenty years in prison.
The court, therefore concludes that the petitioner has failed to satisfy his burden of proving any of the allegations of ineffective assistance on the part of Attorney Bruckman. The amended petition for habeas corpus relief is denied.