Opinion
CV144006224
01-10-2017
Joseph Moore (Inmate #100722) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Susan Quinn Cobb, J.
The petitioner, Joseph Moore, brings this petition for a writ of habeas corpus claiming that his state and federal constitutional rights to effective assistance of counsel were violated by the actions of his trial counsel. The petitioner seeks an order from the court vacating the petitioner's judgment or directing the sentencing court to vacate the petitioner's judgment and resentence the petitioner in accordance with the terms of the plea offer. Having considered the credible evidence and the arguments of the parties, the court finds the issues for the respondent and denies the petition.
On October 26, 2010, the petitioner was convicted, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and commission of a felony with a firearm in violation of General Statutes § 53-202k. That same day, the petitioner stipulated in response to a Part B information that the offenses he was convicted of were committed while on release in violation of General Statutes § 53a-40b. On December 14, 2010, the petitioner pleaded guilty to another Part B information charging the petitioner with being a persistent felony offender in violation of General Statutes § 53a-40(f). That same day, the trial court, Mullarky, J., sentenced the petitioner to a total effective sentence of thirty-four years of incarceration--twenty-five years for robbery in the first degree, five years for commission of a felony with a firearm and four years for committing a crime while out on release. The petitioner was represented by Attorney Douglas Ovian.
The petitioner appealed his conviction to the Appellate Court, which affirmed it. State v. Moore, 141 Conn.App. 814, 64 A.3d 787 (2013). The Supreme Court denied the petitioner's petition for certification. State v. Moore, 309 Conn. 908, 68 A.3d 663 (2013). The Appellate Court found that the jury could reasonably have found the following facts:
At approximately 1 p.m. on July 13, 2009, the defendant entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the defendant approach the check writer station. The defendant then asked another patron, David Woodward, where the withdrawal slips were located, at which point the defendant took a slip from the station and began to write on it. Photographs from the bank's security cameras introduced into evidence depict the defendant writing on a piece of paper at the check writer station and then approaching the teller station with the piece of paper in his hand.
The defendant approached Ritchie and handed her a deposit slip that read, 'Give cash. I have gun.' When Ritchie explained that she was not a teller, the defendant ordered her to '[g]ive me the cash. Give it now.' Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the defendant demanded, '[h]urry up, hurry up, ' and reached over the counter. DePietro then handed the defendant $3, 500 in cash.
The defendant immediately exited the bank and Woodward followed. As Ritchie locked the bank's doors and DiPietro called 911, LaLiberty closed the bank's drive-through window. As she did, she saw the defendant walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the defendant at that time. Approximately six/hours later, the Connecticut state police apprehended the defendant in a grassy area near Route 66 in Columbia. The defendant subsequently reviewed and executed a waiver of Miranda rights form and agreed to speak with Detective Derek Kasperowski. The defendant then admitted to robbing the bank and stated that he remembered 'smoking crack before going into the bank, going to the bank teller and telling her to give him money.' Although no firearm was found on the defendant's person or the surrounding area, the $3, 500 in cash was recovered.(Footnote omitted.) State v. Moore, supra, 141 Conn.App. 816-17.
On May 16, 2014, the petitioner brought this habeas petition. In his amended petition, the petitioner claims that his trial counsel, Attorney Ovian, was ineffective in failing to adequately counsel him about the advisability of accepting a plea offer and there is a reasonable probability that, but for trial counsel's deficient performance, the petitioner would have accepted the plea offer and the court would have imposed a more favorable sentence than the petitioner received.
The petition also set forth a claim that the petitioner's trial counsel was ineffective for failing to adequately counsel the petitioner about his right to have the jury decide the ultimate facts that trigger the sentence enhancement under General Statutes § 53a-40(f). That claim was withdrawn at trial.
A trial was held on the petitioner's claims on September 15, 2016. At the trial, the petitioner presented the testimony of the following witnesses: Attorney Matthew Gedansky, the state's attorney in the petitioner's criminal case, Douglas Ovian, the petitioner's trial counsel and the petitioner. The petitioner also provided several exhibits, including transcripts and the notes from Attorney Ovian's file.
The court finds the following additional facts:
The petitioner was charged with robbery in the first degree for robbing a bank with the threat of the use of a dangerous instrument. The state had still photographs from a surveillance video depicting the petitioner entering the bank and writing a note that he presented to the bank teller. The state also had a note recovered from the bank that stated:
" Give cash. I have gun." The petitioner did not dispute that he robbed the bank. The defense theory at the petitioner's criminal trial was that the note was not written by the petitioner, and that he was guilty of a lesser offense than robbery in the first degree. The petitioner claimed that the bank teller gave the note that he wrote back to him, and it was ruined when he ran through a river while attempting to escape. There was no note recovered on the petitioner when he was apprehended.
Attorney Gedansky made an initial offer to the petitioner for ten years to serve with five years of special parole if he pleaded to a single-count of robbery in the first degree. After discussing this offer with Attorney Ovian, Attorney Gedansky agreed to reduce the offer to ten years to serve with two years of special parole. The petitioner rejected the offer.
The ten year to serve offer was the lowest Attorney Gedansky was willing to offer in light of the petitioner's extensive criminal history and the strong evidence the state had that he committed the robbery in this case. Attorney Gedansky held the offer open as long as possible because Attorney Ovian told him that he was attempting to reason with his client and begging him to take the offer.
Attorney Ovian had many discussions with the petitioner throughout the course of his representation. During these discussions, he went over the state's evidence with him and he advised the petitioner to take each of the deals as they were offered given the circumstances. Attorney Ovian informed the petitioner that he was facing a maximum exposure of forty-eight and a half years if convicted of robbery in the first degree due to the sentence enhancements the petitioner faced.
The parties subsequently attended a judicial pretrial with Judge Sullivan. Both Attorney Ovian and Attorney Gedansky understood that the judge's offer would likely be higher than the state's offer, and Attorney Ovian informed the petitioner of that fact before the pretrial. Judge Sullivan indicated that he would agree to an offer of fifteen years to serve if the state did not charge the petitioner as a persistent offender. The petitioner also rejected the court's offer.
The petitioner believed that he should be convicted of robbery in the third degree because he only gave the bank teller a note and did not hurt anyone. The petitioner rejected both plea offers for ten and fifteen years to serve for robbery in the first degree because he only committed a robbery in the third degree and he believed that five years was a more reasonable sentence for his offense. On August 13, 2010, at a court appearance before Judge Sullivan, the petitioner stated to the court: " Sir, I apologize, to offend you all but I just want you to know this is not a Robbery 1st and I will be going to trial to prove it because I am not copping out to this." The petitioner further believed that the maximum sentence he could receive for robbery in the third degree was five years, and had he known that he was going to receive a thirty-four year sentence, he would not have chosen to go to trial.
DISCUSSION
It is well established that under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
" In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. 1407. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. 1407-08; see Lafler v. Cooper, supra, 132 S.Ct. 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. 1408.
The Connecticut Supreme Court has, subsequent to Missouri v. Frye and Lafler v. Cooper, addressed claims of ineffective assistance of counsel during pretrial representation. Ebron v. Commissioner of Correction, 307 Conn. 342, 53 A.3d 983 (2012). In Ebron, the Supreme Court explained that: " in order to avoid potentially conflicting findings at the prejudice and remedy stages of a habeas proceeding in a lapsed plea case . . . to establish prejudice, a petitioner need establish only that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court. See State v. Thomas, 296 Conn. 375, 388, 995 A.2d 65 (2010) ('[a] trial court lacks the authority to unconditionally accept a guilty plea prior to considering the results of a pending [PSI] report'); see also Practice Book § 43-10. We further conclude that, when a habeas court finds prejudice, then, in most cases, that court should order the trial court to determine the proper remedy in light of any information concerning the crime or the petitioner that would have come to light between the acceptance of the plea offer and the imposition of the sentence, such as a PSI report or a victim impact statement. In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court." (Footnotes omitted.) Ebron v. Commissioner of Correction, supra, 307 Conn. 357-59.
The court finds that the petitioner has failed to prove deficient performance. Attorney Ovian relayed both offers to the petitioner, properly explained the state's evidence to him and adequately warned him of the exposure he could face should he choose to go to trial. Moreover, the petitioner has failed to prove he was prejudiced by Attorney Ovian's performance. The petitioner rejected both offers and informed the court that he would go to trial to prove that he did not commit a robbery in the first degree.
Accordingly, the court finds that the petitioner has failed to meet his burden and therefore, the petition is denied.
CONCLUSION
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.