Opinion
CVTSR134005605
04-26-2016
Armando Gonzalez v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, J.
The petitioner, Armando Gonzalez, seeks habeas corpus relief from imprisonment for ten years, imposed after guilty pleas, to assault first degree; carrying a pistol without a permit; criminal possession of a firearm; and admissions to two violations of probation. The basis for his habeas claim is that his criminal defense counsel, Attorneys Robert Photos and Matthew Couloute, Jr., and suspended Attorney Jeffrey Beck, provided him with ineffective assistance.
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. Carraway v. Commissioner, 317 Conn. 594, 600, 119 A.3d 1153, fn.6 (2015).
The following sequence of legal representation is important in resolving the issues raised by the petitioner. Originally, the petitioner retained Jeffrey Beck to defend him with respect to charges of attempted murder; assault first degree; and the weapons violations. Beck brought in Attorney Photos to assist him in this task. In September 2010, Beck was suspended from the practice of law in Connecticut. Attorney Photos took over Beck's pending cases. Attorney Photos requested that Attorney Couloute join him in representing some of Beck's clients who faced criminal charges.
At that time, the petitioner's criminal matters had advanced to the firm trial list on the Part A docket of the Fairfield J.D. in Bridgeport. Attorney Couloute met with the petitioner's family and agreed to defend the petitioner. About one month later, on April 27, 2011, the petitioner's case was reached for trial, and jury selection began. On that date, the prosecution and defense proposed plea dispositions, and, eventually petitioner entered the guilty pleas described above.
The petitioner alleges that Beck and Photos inadequately investigated and prepared for trial; that he never hired Couloute to represent him and never met with him before April 27, 2011; that defense counsel's lack of knowledge and preparation about the petitioner's case forced the petitioner to accept the negotiated plea disposition even though he wanted to have a trial in order to vindicate his innocence.
A.
As to lack of preparation by Beck and/or Photos before the petitioner changed his pleas, 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; State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669. 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; 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, 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 (CA. 3, 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., p. 42.
In U.S. v. Greene, 722 F.Supp. 1221 (E.D.Pa., 1989), a federal defendant pled guilt 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. AG of Maryland, 956 F.2d (1290) (4th Cir., 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 it 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's later guilty pleas waived deficiencies by his lawyers regarding pretrial preparations on the part of Beck and Photos except to the extent the absence of proper represented impinged on the validity of the petitioner's guilty as delimited by Dukes v. Warden, supra; and Taylor v. Whitley, supra . The court's scrutiny, therefore, must focus on the validity of those guilty pleas within the context of the Strickland-Hill standards.
After considering all the evidence adduced at the habeas trial, the court finds that the petitioner has failed to demonstrate, by a preponderance of the evidence, that he would have persisted in having a jury decide his fate rather than accept the plea disposition he was offered. At the habeas trial, the petitioner testified that he was shocked to learn that his jury trial was imminent. He avowed that he felt that Attorney Couloute could not have been brought up to speed with respect to the details of the defense case in so brief a time. He denied discussing the strengths and/or weaknesses present in the case with Attorney Couloute, and swore that he only accepted the judicially indicated disposition because he was pressured to do so by his family; because he feared the maximum prison terms imposable if convicted; and because he was tired and unaware of any route by which to delay the proceedings. He contended that he pleaded guilty even though he believed he would prevail at a trial because of the absence of forensic evidence linking him to the shooting and the presence of circumstantial evidence pointing to the victim's accidental shooting by the police.
The petitioner avers that an exchange of gunfire occurred involving police officers who, by happenstance, were nearby investigating an unrelated complaint and, serendipitously, interrupted the alleged shooting of the victim by the petitioner with guns blazing. He also testified that he chose to plead guilty because his mother promised to hire a new attorney to file a habeas corpus action to undo the guilty pleas after disposition. The petitioner's mother confirmed in her testimony that she urged her son to accept the indicated disposition and that she would later retain a different lawyer to overturn the guilty pleas.
Attorney Couloute testified at the habeas trial, also. At that time of the petitioner's criminal case, Attorney Couloute was an experienced practitioner of criminal law. He had been a Part B prosecutor in the Norwalk G.A. and a Part A prosecutor for the Fairfield J.D. He consented to take over some of suspended counsel's Part A cases, including the petitioner's files. He knew that jury selection was subject to commence for the petitioner's case with one day's notice.
Couloute denied unduly pressuring the petitioner to accept the plea offer. He did acknowledge that he strongly recommended to the petitioner that he do so because the prosecution's case against the petitioner was formidable. The petitioner faced the serious charges enumerated above, but, additionally, he was exposed to sentence enhancement as a persistent, dangerous felony offender under General Statutes § 53a-40(a) and owed prison time in two violation of probation matters based on the same conduct. All told, the petitioner could have received a total effective sentence exceeding a century.
The petitioner had two earlier robbery first degree convictions for each of which he received sentences longer than one year. This predicate criminal history would have satisfied the sentencing enhancement provision of either General Statutes § § 53-401(a) or (c). He was also accused of committing the attempted murder and assault first degree with a firearm which could have added to the maxima imposable for those crimes by virtue of General Statutes § 53-202k. The suspended portions of his two probationary sentence totaled forty-four years.
The prosecutor summarized the evidence against the petitioner as follows:
The petitioner and the victim were feuding. A few days before the shooting, the victim observed the petitioner as a passenger in a vehicle which drove past him. The victim opened fire, and his shots struck the petitioner's vehicle.
On September 8, 2010, the petitioner searched for the victim near his usual haunts. The petitioner came armed with a .45 caliber, semiautomatic pistol, and, when he spotted the victim, the petitioner shot the victim in the back.
Police officers were close by and heard the shots. The officers saw the victim and another person run past them. They also noticed that the petitioner held a pistol in his hand. The petitioner disobeyed their command to drop his weapon, and one officer shot the petitioner in the leg.
Lay witnesses also identified the petitioner as brandishing a weapon. When questioned concerning the whereabouts of his pistol, the petitioner contended that two black men absconded with it. However, it was quickly located about fifteen feet from the petitioner near a fence.
While being treated for his injury at a hospital and after advisement of his rights under Miranda, the petitioner remarked that his life was over, that he had tried to kill two times before, and that his car resembled " Swiss cheese." He predicted that he was going to prison for a long time.
Through pretrial discussions, the judge indicated that he would likely impose a total, effective sentence including ten years incarceration, if the petitioner pleaded guilty. During the plea canvass the prosecutor recounted the facts described above and, the petitioner conceded that the state probably had sufficient evidence to convict him of the charges he faced. He acknowledged that he arrived at this conclusion after consulting with his attorney and that it was in his best interest to take advantage of the indicated disposition rather than risk the potential consequences of a jury trial. He affirmed that he had no questions for the judge or his attorney as to entry of his guilty pleas.
Contrary to the petitioner's habeas hearing testimony as to his motivations for pleading guilty, the court finds that the petitioner changed his pleas to guilty to avoid conviction after a jury verdict and the potential that he would spend most of the rest of his life behind bars. He made this decision after his counsel apprised him of the available evidence in the case. The petitioner submitted no credible evidence to support his contention that the police may have shot the victim, that they fabricated the incriminating statements he uttered at the hospital, or that a viable self-defense theory existed.
He pleaded guilty for the very reasons that the United States Supreme Court ruled were constitutionally legitimate motives to do so in Alford v. North Carolina . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). " [A] defendant may plead guilty while protesting innocence when he makes a conscious choice to plead simply to avoid the expenses or vicissitudes of trial, " U.S. v. Vonn, 533 U.S. 55, 69, 122 S.Ct. 1043, 152 L.Ed.2d 90, fn.8 (2002).
The court also determines that the petitioner had failed to meet his burden of proving, by a preponderance of the evidence, that he elected to forego a jury trial based on any misadvice provided by his defense counsel or that his plea was involuntary or an uninformed choice on his part.
For those reasons, the amended petition for habeas corpus relief is denied.