Opinion
CV144006504S
07-07-2017
Joaquin Gudino v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Joaquin Gudino, seeks habeas corpus relief from forty-five years imprisonment imposed upon his guilty plea to murder. His amended petition contains two counts, which assert claims of ineffective assistance by his defense counsel, Attorney Robert Skovgaard, and a previous habeas counsel, Attorney Paul Krause, respectively. The court makes the following findings of fact and rulings of law.
In the autumn of 1996, the state charged the then nineteen-year-old petitioner with the murder of Antonio Santaella, Jr. The state's case was premised on evidence that a few weeks before the homicide, the victim and the petitioner engaged in a heated altercation. On the night of the killing, the petitioner again encountered the victim, and the argument resumed. After the petitioner brandished a firearm, one of his friends was able to persuade the petitioner to depart the scene. However, around twenty minutes later, the petitioner chose to return with a different handgun, approached close to the vehicle in which the victim was seated, and fired several shots from close range at the victim, leading to the victim's demise.
Several bystanders knew the petitioner and positively identified him as the shooter. The petitioner fled Connecticut to various locations in Central America while using a false name. Law enforcement received a tip and apprehended the petitioner on November 25, 1996, as he deplaned in New York City. At the time of his arrest, the petitioner uttered some arguably incriminating remarks. He also predicted that he would win his criminal case because the state's witnesses would refuse to testify against him.
Eventually, that case was scheduled for a jury trial. On January 28, 1998, he withdrew his plea and election and pleaded guilty to a reduced charge of manslaughter first degree with a firearm in exchange for a judicially indicated twenty-five-year prison sentence. Judge Dean cautioned the petitioner, however, that imposition of that sentence was contingent on the information contained in the presentence investigation report (PSI) being as expected.
Attorney Skovgaard advised the petitioner to decline comment about the incident at the PSI interview conducted by the probation office. Attorney Skovgaard felt that it was unnecessary for him to accompany the petitioner for the PSI interview. At the interview, the petitioner followed his lawyer's advice, except that he disclosed to the probation officer his intent to withdraw his guilty plea.
Shortly before the expected sentencing date of April 24, 1998, the petitioner expressed his wish to withdraw his guilty plea to Attorney Skovgaard. On that date, Judge Dean found that the legal grounds for the petitioner's request to withdraw the guilty plea were insufficient. But because the PSI report was " so terrible, " Judge Dean refused to impose the twenty-five-year term and allowed the petitioner to withdraw his guilty plea on that basis. The case resumed its place on the jury list.
Shortly before jury selection, the prosecutor was willing to recommend a thirty-five-year prison term if the petitioner pleaded guilty to murder. The petitioner rejected this proposed disposition because he still harbored a belief that the state's case would disintegrate for lack of witnesses willing to testify. The petitioner's forecast proved false. At trial, these witnesses definitively identified the petitioner as the victim's murderer.
Enlightened by this development, the petitioner asked Attorney Skovgaard if he could change his plea. Attorney Skovgaard was only able to secure a recommendation of a forty-five-year sentence from the prosecutor at this late moment in the proceedings. The petitioner agreed to this disposition, and Judge Nigro imposed that sentence on July 31, 1998.
In 2000, the petitioner filed his first habeas action. Judge Hadden tried that case and denied relief, Gudino v. Warden, Superior Court, New Haven d.n. CV 00-435107, (January 7, 2009). The Appellate Court affirmed that denial, Gudino v. Comm'r of Corr., 123 Conn.App. 719, 3 A.3d 134 (2010); cert. denied, 299 Conn. 905, 10 A.3d 522 (2010).
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, that his attorney's performance was substandard and that there exists a reasonable likelihood 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 practices. 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.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the questions of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
I
In the first count, the petitioner submits that Attorney Skovgaard rendered ineffective assistance by failing to investigate and pursue defenses based on extreme emotional disturbance (EED) and intoxication; by failing to investigate and apprise Judge Dean of the petitioner's history of substance abuse, mental health problems, learning disability, horrendous upbringing, and the potential for success of the EED and intoxication defenses; by failing to consult with and utilize experts in the fields related to these factors, which may have contributed to the petitioner's shooting of the victim; by improperly preparing the petitioner for the PSI interview; and by failing to attend that interview.
These claims must be dismissed, pursuant to Practice Book § 23-29(3) because they present the same grounds for relief denied in his earlier habeas case, namely the ineffective assistance of defense counsel and which are not based on new facts or evidence " not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney Skovgaard is insufficient to state a new legal ground different from that raised by the previous habeas petition filed in d.n. CV 02-003561, McClendon v. Comm'r of Corr., 93 Conn.App. 228, 230, 888 A.2d 183 (2006); cert. denied, 277 Conn. 917, 895 A.2d 789 (2006); Pierce v. Comm'r of Corr., 158 Conn.App. 288, 308-11, 118 A.3d 640 (2015).
Of course, the failure by Attorney Krause to assert these specifications of ineffective assistance can form the basis for a claim of ineffective assistance by previous habeas counsel, and the petitioner asserts just such a claim in the present case.
The petitioner concedes that he asserts no facts or evidence not reasonably available to Attorney Krause at the time of the earlier habeas action. The petitioner attempts to evade the successive petition bar by contending that the relief sought in the present case differs from the first habeas case. The relief specified in the current matter asks for vacatur of the guilty plea to murder and the sentence imposed, remand to the criminal court for a new trial; and/or remand to the criminal court to reinstate the plea to manslaughter first degree with a firearm and imposition of the twenty-five-year sentence. The relief sought in the previous habeas case was for vacatur of the guilty plea to murder and the forty-five-year sentence, remand to the criminal court; and/or release from custody.
The court holds that these requests for relief are legally indistinct for purposes of evaluating whether the present action is a successive petition under Practice Book § 23-29(3). Mere verbal reformation will not suffice, Pierce v. Commissioner, supra, 310-11. The essential purpose of both the former and present claims was and is to vacate the petitioner's guilty plea to murder and the resulting sentence and return the case to the criminal docket for further adjudication. The court dismisses the first count as a successive claim.
II
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel were ineffective, and (2) that his trial counsel was ineffective. Id. Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double layered obligation as " a herculean task." Id., 843.
A
It must be observed that the petitioner's specifications of ineffective assistance against Attorney Krause spring from a common source, namely Judge Dean's decision in April 1998 finding that the previously unknown and unfavorable information about the petitioner and the shooting, as disclosed in the PSI report, warranted refusal to impose the twenty-five-year sentence. The petitioner alleges that, but for Attorney Skovgaard's failure to correct errors, mitigate negative aspects, or supplement the report, and his failure to advise the petitioner properly about the PSI interview and his absence from that interview, there exists a reasonable likelihood that Judge Dean would have maintained his original posture and imposed the twenty-five-year sentence (despite the petitioner's request to withdraw that guilty plea).
The petitioner makes no direct allegation assailing Attorney Skovgaard's representation surrounding the second guilty plea in July 1998. His contention of ineffective representation as to the later, midtrial, guilty plea, in July 1998, is entirely derivative, i.e., the occasion of the jury trial would never have occurred had Judge Dean been inclined to impose the twenty-five-year prison term. This argument ignores the dramatic effect a guilty plea produces under our criminal law jurisprudence.
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 pre-plea, 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. denied, 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, followed 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 pre-plea 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 was 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 juridical 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 yielding 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 pre-plea 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.
The petitioner attempts to sidestep this procedural obstacle by pointing out that the respondent never expressly alleged this type of waiver in its return. He argues that the court should disregard the legal ramifications of the petitioner's later guilty plea. This argument misapprehends the consequences of a validly-accepted guilty plea.
Unlike the situation where a party's failure to object to a particular ruling may cause loss of the opportunity to assert the impropriety later, pleading guilty is an affirmative act that " bars" a criminal defendant from raising pre-plea issues, except where subject matter jurisdiction is lacking or the parameters of General Statutes § 54-94a for a conditional nolo contendere plea are met, State v. Commins, 276 Conn. 503, 510, 886 A.2d 824 (2005). Upon pleading guilty, a defendant " relinquishes" the right to appeal pre-plea errors, Id., 516. Trial courts lack authority to expand the purview of § 54-94a, Id. Even where it is reasonable to assume that a trial court implicitly " understood" that a defendant was trying to enter a conditional plea, the preclusive effect of an unconditional guilty plea applies, Id., 519.
" A guilty plea represents a break in the chain of events which has preceded it in the criminal process, " State v. Hanson, 117 Conn.App. 436, 456, 979 A.2d 576 (2009), (emphasis added). An accused who unconditionally pleads guilty " may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea, " id. " [T]he only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction, " Id., (emphasis added).
The petitioner's plea of guilty to murder in July 1998 erased any viable claims of ineffective assistance by Attorney Skovgaard unrelated to voluntariness and intelligent understanding of that guilty plea. Therefore, the July 1998 unconditional guilty plea forecloses the petitioner from obtaining habeas corpus relief pertaining to purported deficiencies of Attorney Skovgaard with respect to the unsuccessful April 1998 plea.
B
Alternatively, even if the absence of an express reference to the preclusive effect of the later guilty plea deprives the respondent of recourse to this principle, this court must consider the very same principle when evaluating Attorney Krause's performance in deciding which habeas claims to pursue in the earlier habeas case. In other words, the relinquishment rule for pre-plea issues bears on the performance prong of the Strickland standard in assessing habeas counsel's disregard of claims that present a high probability of denial based on the pre-plea waiver principle.
Attorney Krause cannot legitimately be criticized for failing to pursue ineffective assistance specifications against Attorney Skovgaard which likely would be barred because of the petitioner's later guilty plea. He cannot be faulted for failing to raise defunct issues simply on the chance that the respondent will fail to assert the forfeiture feature of a subsequent guilty plea. Reasonably professional habeas practice cannot be breached by failing to raise claims of such a dubious character. Therefore, the court, alternatively denies the specifications of ineffective assistance in the second count on the ground that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Krause's failure to raise these pre-plea specifications of ineffective assistance against Attorney Skovgaard fell beneath reasonably professional legal assistance.
C
As a second alternative holding, the court also finds that the petitioner has failed to prove the prejudice component of the Strickland test for habeas counsel. Under the particular allegations in this case, ultimately, all levels of prejudice trace back to Judge Dean's disinclination to impose the erstwhile twenty-five-year sentence. Thus, the petitioner bears the burden of demonstrating that a reasonable probability exists that, but for Attorney Skovgaard's purported errors, Judge Dean's decision would have been different. The court determines that the petitioner has failed to remove that different outcome from the realm of speculation. The court finds the petitioner's hypothesis to rest on unwarranted optimism.
Contrary to the petitioner's averments, the court finds that the PSI report sufficiently explored the areas of the petitioner's use of PCP, animosity toward the victim, and mental and intellectual deficits. The report noted the petitioner's fractured home life, his bouts of depression, frustration, impulsivity, anger, and aggressive behavior that predated his use of PCP, marijuana, and alcohol. The petitioner's propensity for violence surfaced at an early age. School authorities disciplined him for fighting, striking a teacher, damaging property, and stabbing another student with a screwdriver. He exhibited utter disregard and defiance toward those in authority.
The petitioner's criminal history preceding the murder was remarkably long for a teenager. By age sixteen, he had spent eighteen months in Long Lane for committing multiple burglaries and thefts. A juvenile court probation officer predicated that he was on the brink of a life of crime and showed little remorse for his crimes. Between seventeen and nineteen, the petitioner accumulated felony convictions for sales of drugs and stealing firearms.
While the murder case was pending, he was arrested for tampering with witnesses in that case. The petitioner never expressed remorse for killing the victim or even recognition that he caused the legal troubles in which he found himself embroiled. His attitude about the homicide consisted of exploring the ways to avoid conviction and punishment.
The petitioner laments that Judge Dean had inadequate information concerning the circumstances that the petitioner's mother was a cocaine addict, his father and a boyfriend of his mother sexually abused him, and the specter of successful EED and/or intoxication defenses to the charge of murder. He avers that had Judge Dean known of these things, the judge's view of an appropriate punishment would have moderated.
The court has reviewed the evidence presented and concludes that this additional information would have engendered little to ameliorate Judge Dean's negative view of the petitioner. Although the petitioner's dismal and disjointed upbringing and his resorting to drugs and alcohol to alleviate his anguish may very well account for his antisocial behavior and violent nature, at the time of Judge Dean's decision, the petitioner was who he was; that is, an unrepentant killer, whose persistent criminal activity stood him before the judge as an incorrigible lawbreaker willing to take desperate measures to evade detection and punishment. Nothing Attorney Skovgaard could reasonably have done would have altered that portrayal.
For these reasons, the amended petition for habeas corpus relief is denied.