Opinion
No. CV 05 4000347
January 23, 2008
Memorandum of Decision
The petitioner pleaded guilty on October 15, 2002 under the Alford doctrine to first degree burglary, conspiracy to commit first degree burglary, first degree unlawful restraint, first degree robbery, and two counts of tampering with a witness. On the same date, the court, Fasano, J., imposed a net effective sentence of twelve years in prison followed by eight years of special parole. The petitioner has now filed a petition for a writ of habeas corpus alleging that his trial counsel, attorney Michael Dolan, was ineffective and that the petitioner is actually innocent of the crimes.
I A
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
The petitioner's primary claim, pleaded in count two of the petition, is that Dolan was ineffective for failing to interview the petitioner's alibi witnesses to the burglary and robbery and instead recommending that the petitioner accept a plea agreement with the state. The proposed alibi witnesses were the petitioner's mother, grandmother, and aunt. The petitioner told Dolan that these family members would support his claim that he was at home in East Haven at the time of the burglary and robbery, which occurred at a private residence in North Branford on December 1, 2000.
The court finds the following related facts. The petitioner was arrested in these cases on some charges on January 18, 2001 and on additional related charges on February 4, 2001. At the outset, the public defender's office represented the petitioner. The petitioner then hired Dolan to take the case to trial and, in early September 2001, Dolan filed his appearance.
As will be discussed, the petitioner was arrested a third time on October 9, 2001 for tampering with and intimidating witnesses.
On or about September 18, 2001, Dolan filed a notice of alibi defense listing the petitioner's grandmother as an alibi witness. At some point during this process, the state made an offer to recommend a sentence of twelve years with the petitioner having a right to argue for less in exchange for the petitioner's guilty plea to some of the charges. Dolan and the petitioner jointly made a decision to reject the offer and go to trial.
On October 9, 2001, which was toward the end or shortly after the completion of jury selection, the petitioner was arrested on two counts of tampering with a witness and one count of intimidating a witness. At about the same time, the petitioner withdrew his alibi defense and Dolan reopened plea negotiations with the state. The state made a revised offer of an agreed-upon sentence of twelve years to serve followed by eight years of special parole. Dolan recommended the offer to the petitioner and the petitioner accepted it, resulting in his guilty plea and sentencing on October 15.
It is true that Dolan did not interview the petitioner's alibi witnesses prior to recommending that the petitioner accept the state's revised offer. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted; citations omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). As our Supreme Court has held, it is "within the range of reasonably competent counsel for an attorney to advise his client to plead guilty even though defenses may conceivably exist." State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985).
In this case, advising the petitioner to accept the state's revised offer without having first interviewed the alibi witnesses was an acceptable strategic decision. Dolan knew that a jury could regard family alibi witnesses with some degree of suspicion and that a faulty alibi could be devastating to his client's case. Dolan also knew that a North Branford police officer had filed a report stating that, when he visited the petitioner's home several hours after the burglary on December 1, 2000, a female at the home, who could reasonably have been one of the petitioner's alibi witnesses, told him that the petitioner was not there. Thus, the alibi defense that he was home at the time of the burglary did not appear to be foolproof or even particularly strong.
On the other hand, Dolan learned that the state had a strong case, consisting of the testimony of an accomplice, Ryan Crowther, the identification of the petitioner's voice by the victim of the home invasion, an admission to the crime by the petitioner to a third person, and the petitioner's possession of some of the fruits of the crime. The arrest of the petitioner on tampering and intimidation charges on October 9 then became the decisive factor. Although Dolan understood that the state would not be able to conduct a joint trial, because the tampering charges were new, Dolan also knew that the state would likely be able to introduce some of the petitioner's allegedly coercive statements to his witnesses as consciousness of guilt evidence. Thus, Dolan anticipated that the state would, for example, introduce evidence that the petitioner had told Ryan Crowther's brother that Ryan "would be taken care of and if he thinks jail is the worst thing going for him then he does not know shit." Dolan realized that, with the new charges, there was both a greater likelihood of conviction on the home invasion charges and an elevated risk of a sentence longer than that ultimately offered by the state in plea by negotiations.
Accordingly, even without interviewing the petitioner's family members, Dolan had a sound strategy in recommending that the petitioner accept the state's offer of twelve years to serve. The petitioner has therefore not overcome the presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
B
In order to show prejudice resulting from ineffective assistance of counsel in a guilty plea case, the petitioner must demonstrate that "he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." (Internal quotation marks omitted.) Gray v. Commissioner, 99 Conn.App. 444, 448, 914 A.2d 1046, cert. denied, 282 Conn. 925, 926 A.2d 666 (2007). Although it is clear that the petitioner now contends that he did not intend to plead guilty and that he would have preferred to go to trial, he cannot make the additional showing that there would have been a likelihood of success if Dolan had interviewed his alibi witnesses.
To begin with, the petitioner has failed to establish "what benefit additional investigation would have revealed." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). The petitioner called only one potential alibi witness, his mother, Lori Wojciechowski, to testify in the habeas trial. Wojciechowski's alibi testimony was porous. She testified that, when the police came to her house to arrest the petitioner, she told them that the petitioner had been home a "few days" or "three days" earlier, on a day when she thought that the police had stated the crime had occurred. It is undisputed, however, that the police first arrested the petitioner on January 18 and that the burglary occurred on December 1, 2001. Because January 18 is more than a "few" or three days after December 1, it appears that Wojciechowski was providing an alibi for the wrong day.
In contrast, the state had a solid case against the petitioner. Although the accomplice, Ryan Crowther, might have been vulnerable to impeachment on the ground that he had made a deal with the state, from his statement it appears that he would provide eyewitness testimony that the petitioner went into the victim's house, looked for money, and restrained the victim. In addition, the victim, Catherine Criscio, who was sixty-seven years old at the time of the crime, testified at the habeas trial with remarkable clarity and persuasion. She recounted her frightening experience during the invasion of her home and described her later police-conducted voice identification of the petitioner as the person who stood next to her with a crowbar and commanded: "Shut up. I don't want to hurt you, but if I have to I will." Finally, the state could have introduced evidence that the petitioner was in possession of the victim's credit cards shortly after the robbery and that the petitioner had attempted to intimidate or tamper with some of the witnesses. Thus, the state had a strong case. The introduction of the petitioner's alibi defense, which consisted primarily of his mother's testimony concerning his whereabouts on some day other than the date of the crime, would not have created a likelihood of success. Thus, the petitioner has not established prejudice. See Gray v. Commissioner, supra, 99 Conn.App. 448. Because the petitioner has failed to prove either deficient performance or prejudice, and must prove both to prevail, his ineffective assistance of counsel claim in count two must fail. See Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458.
In an interview conducted on November 2, 2001, the North Branford police asked the following representative questions and Crowther provided the following answers:
Q: OK. What happened next?
A: Yeah, Um [the victim] started coming up the steps, from the downstairs, which I in turn walked toward her, and she saw me, and she started yelling, what are you doing, what are you doing here, and I just followed her down and she sat on the couch to the left of the stairs, while Vinnie was running upstairs looking for the money.
Q: OK, did Vinnie uh come back downstairs?
A: Yeah, Vinnie came back downstairs and told me to go upstairs, to look for the money because he he [sic] thought I knew where it was. So I went upstairs uh for a [sic] about a minute and a half and uh I heard some yelling, so I went back downstairs.
Q: You went back downstairs because you heard yelling?
A: Yes.
Q: What, What was gonna happen, or what did you see?
A: As soon as I got down to the basement of that part of the house, he had the prybar in his right hand.
Q: Who did?
A: Vinnie Martone, he had the prybar in his right hand.
Q: Umhuh.
A: And it appeared to me that he was gonna strike her with it, so I in turn went over and got in the way of it, and uh just shook my head no, cause I wasn't gonna say anything in front of her.
II
The petitioner makes two other claims of ineffective assistance. In the first count of the petition, the petitioner alleges that Dolan did not conduct any meaningful discussion with him about the plea and instead had a law partner with no familiarity with the case cover the change of plea and sentencing in court. It is true that Dolan could not appear in court on October 15, 2002 and that instead he had attorney John O'Donnell of the same law office cover the proceedings. The petitioner claims no impropriety in this arrangement per se but instead focuses on the contention that neither attorney engaged in any substantive discussions with him.
The court credits the testimony of Dolan that, after the petitioner's arrest on the tampering and intimidation charges, he reopened negotiations with the state, obtained a revised offer, conveyed it to the petitioner with a recommendation that he accept it, thoroughly discussed the benefits and costs of accepting the offer with the petitioner, and ultimately insured that the petitioner agreed with and understood the essential elements of the plea that he would enter in court. Knowing that he was unavailable for the change of plea and sentencing on October 15, Dolan explained the substance of the case to O'Donnell, who then handled the matter in court. Based on these facts there is no merit to the petitioner's claim that he had no meaningful discussion of the case with counsel prior to his plea.
The petitioner's other ineffective assistance claim, alleged in count three of the petition, is that Dolan acted inappropriately in having the petitioner contact and transport Sean Crowther, who was Ryan's brother, to Dolan's office for an interview, as it exposed the petitioner to tampering charges. The court credits Dolan's testimony that he advised the petitioner to have no substantive contact with any witnesses on his own. While the petitioner did arrive at Dolan's office with Sean Crowther on one occasion, Dolan had no concern that this situation would expose the petitioner to tampering charges. This belief was reasonable, as a conversation with a witness and a client in the setting of a professional law office would not ordinarily lead to accusations of criminal misconduct. Although the petitioner's later arrest on tampering and intimidation charges stemmed in part from allegations that the petitioner had told Sean Crowther to lie at this law office meeting, there is no credible evidence of anything Dolan did to contribute to the petitioner's predicament. If the petitioner intimidated or tampered with a witness, he did so without Dolan's assistance and contrary to his advice. Accordingly, the petitioner cannot prevail on the third count.
IV
The petitioner's final claim is that he is actually innocent of the crimes to which he pleaded guilty. Under binding Appellate Court precedent, "a claim of actual innocence must be based on newly discovered evidence," which is defined as evidence that "could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71 (2007). The petitioner offers no such evidence.
In any event, a claim of actual innocence requires that the petitioner must satisfy two additional criteria. "First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Id., 470.
The petitioner has not met these standards. The petitioner admitted at the habeas trial that he had prior knowledge of the contemplated burglary and that, after the burglary, he obtained possession of the stolen credit cards, used them, and disposed of Ryan Crowther's clothes. Thus, the petitioner admits much of what constitutes being an accessory to the burglary, which would be punishable to the same extent as would being a principal offender. See General Statutes § 53-8(a). The state's case that he was in fact guilty of the charges as a principal was strong, featuring the voice identification by the victim and the eyewitness testimony of the accomplice. The petitioner's defense of alibi was weak. The petitioner has not established that he is actually innocent of the charges and that no reasonable fact finder would find him guilty.
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.