Opinion
No. CV07-4001734 S
August 17, 2009
MEMORANDUM OF DECISION
The instant matter was initiated by way of a petition for a writ of habeas corpus filed by and through counsel, and which was not amended. The petition alleges that the petitioner received ineffective assistance of counsel by attorney Leonard Crone. The respondent's return denies the petitioner's material allegations and leaves him to his proof.
The parties appeared before this court on April 7, 2008, for a trial on the merits. The court heard testimony from the petitioner and attorney Crone. Additionally, the transcripts of the petitioner's plea canvass and sentencing were entered as exhibits. After the trial, the court ordered the parties to file simultaneous post-trial briefs on or before April 21, 2008. Subsequently, though on the very same day the evidentiary portion of the trial was completed, the petitioner filed a motion to open testimony, which this court denied on April 8, 2008.
On April 17, 2008, the respondent filed a post-trial brief. On April 21, 2008, the petitioner filed a motion asking this court to reconsider the order denying the motion to open testimony. The motion to reconsider was denied on May 1, 2008. On April 21, 2008, the petitioner also filed a motion for extension of time to file the post-trial brief. The motion for extension of time indicated that should the court deny said motion, that counsel would immediately prepare the brief. The motion for extension of time was also denied on May 1, 2008. Then, on May 9, 2008, the petitioner filed a motion asking the court to reconsider the denial of the motion for extension of time. The motion to reconsider was denied on May 12, 2008.
The court, sua sponte, on September 3, 2008, vacated its order of May 12, 2008, denying petitioner's motion for reconsideration of its order denying the motion for extension of time to file a post-trial brief. Instead, the motion for reconsideration was granted. Upon reconsideration of the motion for extension of time, the court ordered the petitioner to file a post-trial brief on or before October 3, 2008. Copies of the September 3 order were mailed to all counsel of record on September 3rd. One day later, on September 4th, presumably not yet having received the previous day's order, counsel for the petitioner filed a motion for a new trial requesting a new trial before a new judge on the merits of the petition.
Then, on October 3, 2008, the petitioner filed a pleading captioned "Petitioner's Trial Brief." The pleading is, however, more appropriately viewed as a renewed motion to open testimony, and the court treated it as such. Especially in light of the fact that the respondent did not respond to any of the petitioner's post-trial filings with the court, the court permitted the petitioner to present further testimony in support of his claims.
Thereafter, the matter was set down for a second day of trial on May 5, 2009. The only witness to testify that day was the petitioner. The petitioner then filed a brief on May 19, 2009.
Based upon the credible evidence presented, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACTS
On June 15, 2006, the petitioner appeared before the court (Kahn, J.), in the judicial district of Waterbury, for an agreed-upon disposition in docket number CR06-347697. To effectuate this disposition, the state filed a substitute information charging the petitioner with one count of conspiracy to commit burglary in the first degree, in violation of General Statutes §§ 53a-48 and 53a-101(a)(2). In exchange for the state charging the petitioner with that offense, which carries a non-mandatory sentence, the petitioner entered a straight guilty plea and agreed to be sentenced to a term of ten years to serve, execution suspended after the service of five years, followed by three years of probation. There is no evidence that the plea agreement encompassed the petitioner's right to argue for a lesser sentence.
At the plea, the state put the following facts on the record in support of the charged offense, which occurred on January 24, 2006: "Officers at the Waterbury Police Department received a complaint of a home [invasion] occurring on Faber Avenue in Waterbury. Upon arrival, they spoke with two of the victims, those being a Michael and Robin [G.]; they indicated that four males had come into the house wearing masks. Michael was the individual who answered [the] knock at the door. The males pushed their way in, grabbed Michael by the throat, pushed him about the home. He eventually fell to the floor; was punched, kicked by all four males; did struggle with them. Eventually, they did bring him into a bedroom. One of the perpetrators pulled out a handgun, pointed it at his head. They were demanding money from him. And eventually, Robert [G.] heard some noise from the incident. He did go to investigate. As he tried to enter the bedroom, he was pushed down by one of the males. The gun was also pointed at him and money was demanded of him. During his struggle with the perpetrator, he was able to pull off the ski mask of one of the individuals. They did then begin to flee the scene. Some of the other residents did spot them throughout the home, and the older father . . . of the [G. family was] also assaulted by them. He also was able to pull off a mask.
"One of the residents, a Sean [Y.], indicated he had received an unusual phone call that day from someone known to him as Benjamin [R.], asking a lot of questions about selling marijuana. Sean indicated he had been involved in that activity, was no longer involved, but did offer to assist Mr. [R.], find someone if he were involved. Eventually, the investigation did lead to the [petitioner], Paul Clark. He did give a written statement indicating he was a friend of Benjamin [R.]; that Mr. [R.] had indicated he had a beef with this kid [named] Sean and that they had [planned] to go to Sean's house, break in, take money; that they were going to cover their face with masks. One of his perpetrators did have Benjamin [R.]'s gun, that he did use it during the course of the burglary; that the [residents] were assaulted. Mr. Clark also indicated and acknowledged that he was present in the home, did partake in the activities, did identify Mr. [R.] for the police by photo array. Also, the [driver] of the vehicle to the home is Anthony [S.], and did indicate that Rayshawn [M.] was one of the participants.
"Police did locate both Mr. [M.] and Mr. [R.] on Oakville Avenue at a residence. The police were able to obtain a consent to search from the residence and did locate a 32-caliber semi-automatic Beretta pistol, with matching ammunition at the residence. The [petitioner] did eventually give a written statement." Petitioner's Exhibit 1 (Transcript, June 15, 2006), at pgs. 2-3.
Judge Kahn thoroughly canvassed the petitioner about his guilty plea. In particular, the petitioner was asked whether he ". . . had enough time to speak with attorney Crone about the consequences of pleading guilty to this offense, the maximum penalty that [he could] face, the elements of the offense, and what the state would have to prove in order to find [him] guilty beyond a reasonable doubt." The petitioner answered in the affirmative. The petitioner also answered "Yes." when asked whether he was satisfied with attorney Crone's advice. Additionally, the petitioner admitted that the facts restated by the prosecutor were accurate. Based upon the plea canvass and the responses given by the petitioner and both counsel, the court found that the plea was voluntary, understandably made, with the assistance of competent counsel. The matter was continued to August 29, 2006, for sentencing. On that date, the court (Iannotti, J.), imposed the agreed-upon sentence.
Additional facts will be discussed below, as necessary, to address the petitioner's specific claims.
DISCUSSION
The petitioner raises a single claim, namely ineffective assistance by attorney Crone, although premised on seven specific failures. These failures are as follows: 1) to properly investigate the facts and circumstances regarding the alleged crimes and perpetrators of said crimes, prior to having the petitioner plead; 2) to file a motion to suppress the petitioner's statements to the police as fruit of the poisonous tree; 3) to negotiate a plea for the petitioner based upon the fact that the petitioner had no prior criminal record; 4) to negotiate a plea for the petitioner taking into consideration that the petitioner cooperated in a substantial way, but was given no consideration at all for said cooperation; 5) to allow or advise the petitioner to plead not guilty, and to await the arrival of Judge Alexander prior to Judge Iannotti's transfer; 6) to inquire as to the status of the driver of the vehicle, one Anthony Stango, who based on information and belief, was never arrested for his role in the crime, which was more substantial than the petitioner's role; and 7) to have a CADAC or drug dependency evaluation done on the petitioner despite being told that the petitioner was on drugs and alcohol on the date of the offense charged mitigating his role in the crimes charged. The court will group these claims accordingly.
"The Connecticut alcohol and drug abuse commission (CADAC) was replaced by the department of mental health and addiction services in 1993." State v. Easton, 111 Conn.App. 538, 540 n. 1, 959 A.2d 1085, cert. denied, 290 Conn. 916, 965 A.2d 555 (2009). See also General Statutes § 17a-695. A CADAC hearing refers to a hearing that, in accordance with § 17a-695, may result in the suspension of prosecution on the underlying charges and the defendant receiving treatment for drug dependency.
The petitioner further asserts that but for these alleged deficiencies, he would not have pleaded to the charge "so early," "would have been more fully informed and would [have] refused the current plea bargain, choosing to go to trial or choosing a substantial less amount of jail time." Petition, at pg. 3. The petitioner goes as far as asserting that the ineffective assistance by attorney Crone gave him "no other choice but to plead guilty to above-mentioned charge." Id., at pg. 2.
"A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice . . . For ineffectiveness claims resulting from guilty verdicts, [courts] apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, [courts must] apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong . . .
"To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist . . . A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance . . .
"To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59 . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 693-94 . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, supra, 59 . . . A reviewing court can find against a petitioner on either ground, whichever is easier." (Citation omitted; internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn.App. 497, 502-04, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007).
Failure to Investigate
The first alleged deficiency is that attorney Crone failed to properly investigate the facts and circumstances regarding the alleged crimes and perpetrators of said crimes, prior to having the petitioner plead guilty. A related deficiency is that attorney Crone failed to inquire as to the status of the driver of the vehicle, one Anthony Stango, who based on information and belief, was never arrested for his role in the crime, which was more substantial than the petitioner's role.
The petitioner testified on direct examination that he spoke with attorney Crone and told him about the statement he gave to the police. According to the petitioner, who was seventeen years old at the time he gave the statement, he signed the statement without reading it and without knowing the statement's contents. The court does not find this testimony credible. The petitioner further testified that attorney Crone did not review the police report with him; instead, Crone simply gave the petitioner the report, as well as other co-defendant's statements, to the petitioner for his review. The court also does not find this aspect of the petitioner's testimony to be credible, especially in light of former counsel's testimony summarized below. The petitioner also expressed his concern to attorney Crone about Anthony Stango not being arrested as a result of the burglary.
On cross-examination, the petitioner testified that he was intoxicated at the time of the incident and does not remember everything that happened. The petitioner was not aware at the time of the offense that another co-defendant had a weapon. The petitioner gave his statement to the police, as did the other co-defendants, thereby implicating the petitioner in the offense. The petitioner acknowledged that all the defendants in this case received sentences, with the individual with the weapon receiving a longer sentence.
Attorney Crone, the only other witness, testified that he investigated the case, spoke with the petitioner, his parents, as well as the attorneys who represented the co-defendants. Attorney Crone testified that he reviewed the matter and his investigative efforts with the petitioner. During cross-examination, attorney Crone stated that he had reviewed the police reports with the petitioner on several occasions when they met at the court house. Attorney Crone did not hire an investigator to look into Anthony Stango, the purported getaway driver, nor Crone himself speak with Stango, who he said would not exculpate the petitioner.
Based upon the foregoing, the court finds that the petitioner has presented no credible evidence showing deficient performance. There has been no evidence presented to this court that, if discovered, would have led attorney Crone to change his recommendation as to the plea. There is no manner in which a predication could be made whether any such evidence, if it exists at all, would have changed the outcome of the trial. The claims premised on a failure to investigate or inquire more in Anthony Stango are unsubstantiated and wholly without merit.
Failure to file Motion to Suppress Statement to Police
The petitioner next alleges that attorney Crone was deficient because he did not file a motion to suppress his statement given to the police as "fruit of the poisonous free."
"Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality . . . Application of the exclusionary rule, however, is not automatic. [E]vidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint . . . [N]ot all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint . . . The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity. (Citations omitted; internal quotation marks omitted.)" State v. Kimble, 106 Conn.App. 572, 586 n. 9, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008), citing and quoting State v. Spencer, 268 Conn. 575, 599-600, 848 A.2d 1183, cert. denied, 543 U.S. 957, 125 S.Ct. 409, 160 L.Ed.2d 320 (2004).
Under Practice Book § 41-15, "[a motion to suppress] shall be made before trial or hearing in accordance with Section 41-5 unless opportunity therefore did not exist or the defendant or other moving party was not aware of the grounds of the motion, in which case such motion may be made at any time during the trial or the pendency of any proceeding. The judicial authority in its discretion may entertain such a motion at any time." Section 41-5 requires that, "[u]nless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later then ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the judicial authority, at such later time as the judicial authority may fix." Per § 41-3 (3), motions to suppress are such pretrial motions. See also State v. Rivera, 52 Conn.App. 503, 507, 728 A.2d 518, cert. denied, 249 Conn. 906, 733 A.2d 226 (1999) (no authority for proposition that a "hearing and decision on a motion to suppress must occur prior to trial"; "hearings concerning motions to suppress have frequently been deferred until the trial").
As previously indicated, the petitioner testified that he signed the statement without reading it and without knowing the statement's contents. Nevertheless, the petitioner was, according to his testimony, cooperating with the police. The petitioner first testified on the first day of the habeas trial, April 7, 2008, during which there was no indication of police coercion or force. On the second day of the habeas trial, May 5, 2009, the petitioner testified that the police used force against him to compel his signature on the statement. To that end, according to the petitioner, the police beat him, slammed him against the table, and held him by his throat. The petitioner further testified that he discussed the involuntary nature of the statement with attorney Crone. Attorney Crone only testified on the first day of the habeas trial. There was no indication whatsoever of the fact that the petitioner's statement was coerced in the manner indicated by the petitioner on the second day of trial.
The court does not find credible the petitioner's unsubstantiated and uncorroborated testimony about police coercion and force. The petitioner has not shown that there was a valid basis for seeking suppression of the statement. Furthermore, attorney Crone testified that he would not file a motion to suppress unless and until the criminal matter were going to trial. Based upon the foregoing, the court concludes the attorney Crone did not perform deficiently for failing to file a motion to suppress the petitioner's statement to police.
Failure to Properly Negotiate Plea
The petitioner next asserts that attorney Crone failed to negotiate a plea based upon the fact that the petitioner had no prior criminal record, as well as that the petitioner cooperated with the police, but was not given consideration at all for such cooperation. The evidence presented does not bear out these assertions.
The petitioner has presented no evidence demonstrating that the substitute information, which charged him with one offense, conspiracy to commit burglary in the first degree, in particular the subsection without a mandatory minimum sentence, did not take into consideration the petitioner's age, cooperation and lack of criminal record. Attorney Crone did not perform deficiently by failing to properly negotiate a plea as asserted by the petitioner.
Failure to Judge Shop
The next allegation is that attorney Crone failed to allow or advise the petitioner to plead not guilty, and to await the arrival of Judge Alexander prior to Judge Iannotti's transfer. There was no evidence presented as to the first aspect of this claim. The second aspect can only be labeled judge shopping. The court is entirely unclear how awaiting the arrival of another judge would likely alter a sentence that was agreed upon by the parties, and that did not encompass the right to argue for a lower sentence. Nothing was presented to this court in the form of evidence that would substantiate any sentencing court deviating from the agreed-upon sentence arrived via the plea negotiations. The court finds this claim is entirely specious and wholly without merit.
Failure to Request CADAC or Drug Dependency Evaluation
The petitioner's final claimed deficiency is that attorney Crone did not seek to CADAC or drug dependency evaluation, despite being told by the petitioner that he was on drugs and alcohol on the date of the offense charged, to mitigate his role in the crimes charged.
The petitioner testified that he drank a lot of Bacardi 151 prior to the commission of the offense and was intoxicated. The petitioner also testified on cross-examination that he was not addicted to marijuana and alcohol on the day the offense occurred. Attorney Crone testified that he did not file a CADAC motion because there was no evidence that the petitioner was drug dependent.
As with most of the petitioner's allegations, he has presented a paucity of proof in support of the claim that attorney Crone rendered deficient performance because he failed to request a CADAC or drug dependency evaluation. The court finds, therefore, that this claim also is without merit.
CONCLUSION
Based upon all the foregoing, the petitioner has failed to affirmatively show that attorney Crone performed deficiently. The petitioner thus has also failed to show the prejudice that would result from any purported deficiency. There has been no showing that the petitioner would have persisted in a plea of not guilty and proceeded to trial. Judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty (30) days of the date of this decision.
It is so ordered.