Opinion
No. CV05 4000774
May 22, 2007
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner, Luis Robles, has brought this amended habeas corpus petition alleging that his incarceration is illegal because his trial counsel was ineffective and that he was prejudiced thereby. Thus, the petitioner alleges that his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth amendment to the United States constitution. Presently, the petitioner is in the custody of the Commissioner of Corrections in the State of Connecticut.
The petitioner did not allege a violation under the Connecticut constitution.
The matter came before the court for a trial on the merits on March 21, 2007. Witnesses included the petitioner's trial counsel Paul Eschuk and the petitioner. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.
FINDINGS OF FACT
The petitioner was the defendant in State v. Luis A. Robles, Docket Number CR 01-0113995, in the Judicial District of Danbury, where he pleaded guilty on a substitute information to: Sexual assault in the second degree in violation of General Statutes § 53a-71; risk of injury to a minor in violation of § 53-21(a)(2); sexual assault in the second degree in violation § 53a-71; and risk of injury to a minor in violation of § 53-21(a)(2).
The criminal case against the petitioner is based on the following facts. On December 8, 2001, the Danbury police responded to 40 Osborn Street to what they thought was a domestic disturbance. There were several people at the scene, including Anna Robles, the petitioner's daughter. The family had just come from a doctor's appointment because of Anna's suspected pregnancy. It was determined at the appointment that Anna was approximately seven months pregnant. Anna indicated later that day that her father was the person who was responsible for her pregnancy.
See Ex. 1, Plea Tr. at 4-5.
Anna and her mother went to the police department where they gave statements that Anna had sexual intercourse with her father. Further, Anna told the police that on November 24, 2001, she had sexual intercourse with her father at the 40 Osborn Street residence. This incident formed the factual basis for the first charge of sexual assault in the second degree and the first charge of risk of injury to a minor.
In January 2002, Anna gave birth to a child. Blood was taken from the child, Anna and the petitioner. The samples were sent for DNA analysis at the Connecticut State Forensic laboratory. A report was issued which confirmed that the child born to Anna was the petitioner's child, and that Anna was also the petitioner's daughter. The sexual intercourse between the petitioner and Anna that resulted in the conception of the child formed the factual basis for the second charge of sexual assault in the second degree and second charge of risk of injury to a minor. Based on the foregoing facts and the evidence obtained by the state, the case against the petitioner was very strong.
Attorney Paul Eschuk represented the petitioner throughout the criminal proceedings. At the plea hearing held on October 22, 2002, the court (Carroll, J.) indicated that the petitioner's plea agreement included a sentence that would not exceed forty years, suspended after fifteen years, followed by twenty years of probation with special conditions. The petitioner would also be allowed under the agreement to argue for a lesser sentence. The court ordered a presentence investigation report (PSI).
The petitioner's sentencing was held on December 3, 2002. In his argument prior to sentencing, Eschuk told the court that he and the petitioner had reviewed the entire PSI with the assistance of a Spanish-speaking interpreter. Further, Eschuk told the court that the petitioner had no prior record, was a hard worker and had lived in Connecticut for fifteen years. Eschuk also stated that the petitioner had been in jail for nearly a year since his arrest and that the petitioner had encountered many difficulties because of the nature of his charges. He reminded the court about the petitioner's desire to be executed rather than to serve a lengthy sentence in prison. Eschuk indicated that the petitioner had a religious upbringing and that the petitioner attempted to seek counseling through the Tier One Program while incarcerated. Finally, he told the court about the petitioner's possible deportation from the United States at the conclusion of his sentence. Eschuk asked the court to impose a sentence of "much less [than] the recommended fifteen years" and "to give [the petitioner] the minimum sentence possible in light of all these factors so that if he is, in fact deported, he would have some prospect of at least maintaining himself." (Ex. 2, Sentencing Tr. at 7.) At the conclusion of his remarks, Eschuk requested a "second" to confer with the petitioner. After this, Eschuk told the court that the petitioner did not wish to make a statement. (Ex. 2, Sentencing Tr. at 8.)
The court (Carroll, J.) sentenced the petitioner to a total effective sentence of forty years, suspended after fourteen years, followed by twenty years of probation.
The petitioner's sentence was structured as follows: Ten years, suspended after five years and probation for twenty years on sexual assault in the second degree; ten years, suspended after four years and probation for twenty years on the risk of injury to a minor; ten years, suspended after five years and probation for twenty years on sexual assault in the second degree; and ten years execution suspended and probation for twenty years on risk of injury to a minor. The sentences on each count were consecutive to one another.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and Article First, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts . . .
"Although [the] decision [to plead guilty or proceed to trial] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. 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 . . .
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . .
"In Hill v. Lockhart, [ 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-56 (2006).
The petitioner claims that Eschuk's representation was not within the range of competence displayed by lawyers with ordinary training in criminal law in that Eschuk: (1) never advocated for five years incarceration; (2) pressured the petitioner into agreeing to the sentence of forty years suspended after fifteen years, with twenty years of probation; and (3) never allowed the petitioner to speak at his sentencing.
The petitioner first claims, that he was deprived the effective assistance of counsel because Eschuk failed to advocate for a five-year sentence. Eschuk confirmed that the petitioner's claim was true at the habeas trial in testifying that he never specifically asked the sentencing court for a five-year to serve portion as part of the petitioner's sentence. Eschuk also testified, however, that prior to sentencing he told the petitioner that he could not promise that the court would impose a sentence of less than fifteen years. The sentencing transcript also shows that Eschuk argued for a sentence "much less [than] the recommended fifteen years." (Ex. 2, Sentencing Tr. at 7.) He based his argument on many factors, including the petitioner's lack of a prior criminal record, work ethic, desire for counseling and severe suffering from the hardships of incarceration. Despite Eschuk's pleas for leniency, the court was not persuaded and imposed the "heavy sentence" that it thought was warranted based on the facts of the petitioner's case. (Ex. 2, Sentencing Tr. at 10.)
The sentencing transcript demonstrates the same.
Based on the foregoing, there is absolutely no indication that the court would have imposed a lesser sentence had Eschuk specifically asked for five years incarceration. In other words, the petitioner has failed to prove that but for counsel's performance, there is a reasonable probability that the result of the sentencing hearing would have been different. "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, cert. denied, 273 Conn. 922 (2005). The petitioner has failed to prove prejudice; therefore, the petitioner's first ineffective assistance claim must fail.
The petitioner next claims that Eschuk pressured him into accepting the state's plea offer. He testified to the same at the habeas trial. Eschuk testified that he did not pressure the petitioner into pleading guilty. He further testified that he and the petitioner discussed the evidence against the petitioner and the implications of the state's offer to plead guilty. This is reflected in the plea hearing transcript, as is Eschuk's belief that based on his prior conversations with the petitioner, the petitioner wanted to accept the state's offer of forty years:
The Court: "Now, have you had enough time to talk to Mr. Eschuk about your case and your decision to enter these pleas?"
The [Petitioner]: "Yes."
The Court: "And, did you specifically discuss with him all of the evidence the State claims it has to show that you were involved in this-in this matter."
The [Petitioner]: "Yes."
The Court: "Did you further discuss with him the nature and elements of these offenses, in other words, has Mr. Eschuk explained to you what the State would have to prove in order to convict you of these offenses . . . and has he further explained to you what the maximum potential penalties would be if you were convicted . . ."
The [Petitioner]: "Yes." (Ex. 1, Plea Tr. at 8-9.)
Mr. Eschuk: Just for the record, Your Honor, I note on September 25th Mr. Robles and I had a good conversation down in lockup. Since then I've seen him twice more at BCC and we also talked about 40/45 minutes today. So, I'm convinced that this is what he wants to do and I'd ask the Court to withdraw prior pleas and elections.
(Ex. 1, Plea Tr. at 2.) Indeed, during the plea canvass the petitioner stated that no one threatened or forced him to plead guilty.
The Court: "Has anyone threatened you or forced you in any way to cause you to plea[d] guilty today?"
The [Petitioner]: "No."
The Court: "Your decision to plead guilty is your decision and yours alone, after discussions with your attorney. Is that correct?"
The [Petitioner]: "Yes." (Ex. 1, Plea Tr. at 11.)
Based on the foregoing, the petitioner has failed to demonstrate that Eschuk's performance was deficient. There is no evidence, aside from the petitioner's own testimony, that the petitioner was pressured to accept the state's offer. The court simply does not credit the petitioner's testimony on this issue. "The habeas court judge, as the trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 88 Conn.App. 169, 173, cert. denied, 273 Conn. 941 (2005). Moreover, the transcript from the petitioner's plea hearing indicates that Eschuk believed that the petitioner wanted to accept the state's offer and plead guilty. There is nothing on the record indicating the contrary.
Even if the petitioner had proven deficient performance, he has not satisfied the second prong of the Strickland-Hill test, "which requires him to demonstrate that the result of the proceeding would have been different if his counsel had not been ineffective. In cases involving plea negotiations, the petitioner must show that but for his counsel's deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have proceeded to trial . . . 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." (Citation omitted; internal quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 207-08, cert. denied, 270 Conn. 914 (2004).
First, the petitioner never explicitly testified at the habeas trial that he would have rejected the forty-year offer and gone forward with the criminal trial. Second, the state was prepared to file additional charges against the petitioner if he decided to plead not guilty, which would have likely exposed the petitioner to a lengthier term of incarceration if convicted. (Ex. B, Letter from State's Attorney Murray to Eschuk dated 5/1/02.) Based on Eschuk's comments at the sentencing hearing, the petitioner would have rather been executed than be subjected to an extended term of incarceration. (Ex. 2, Sentencing Tr. at 4-5.) Such evidence does not support a conclusion that the petitioner would have pleaded not guilty and proceeded to trial. Last, there is no doubt respecting the petitioner's guilt in this case. The petitioner admitted to having sexual relations with his daughter Anna and DNA tests confirmed that he was the father of Anna's baby. Thus, the state's case against the petitioner was strong. In addition, at the habeas trial the petitioner neither asserted any defenses nor presented any evidence demonstrating the probability of his success had he proceeded to trial. See Copas v. Commissioner of Correction, 234 Conn. 139, 151 (1995). Consequently, this court finds that the petitioner has failed to satisfy either part of the Strickland-Hill test. Thus, the petitioner's second ineffective assistance of counsel claim also must fail.
The state also had police statements from two alleged victims that possibly could have been used as prior misconduct evidence against the petitioner. (Ex. A, Letter from State's Attorney Murray to Eschuk dated 9/29/02.)
The petitioner finally claims that Eschuk prevented him from speaking during his sentencing hearing. The petitioner further claims that had he addressed the court, the demonstration of his remorse would have persuaded the court to impose considerably less incarceration time.
Practice Book § 43-10(3) provides a right of allocution for criminal defendants. Section 43-10 provides in relevant part: "Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing . . . (3) . . . allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence . . ." State v. Valedon, 261 Conn. 381, 381 n. 1 (2002).
The trial court, however, is not required under Practice Book § 43-10(3) to personally inquire whether the defendant wishes to make a statement before sentencing. State v. Hedman, 261 Conn. 390, 394 (2002) (concerning right of allocution during dispositional phase of probation revocation hearing); State v. Valedon, 261 Conn. 381, 390 (2002) (same).
According to the sentencing hearing transcript after conferring with the petitioner Eschuk told the sentencing court that his client did not wish to make a statement:
The proceedings were being translated into Spanish and back to English by an interpreter.
Eschuk: So, Your Honor, if I may have a second with my client? He indicated to me earlier that he didn't think he wished to say anything, but I just want to make sure that that's the case.
[Mr. Eschuk confers with his client]
Eschuk: Your Honor . . . He doesn't wish to make a statement . . .
The Court: All right, and you've indicated that your client does not wish to be heard?
Eschuk: I believe that's the only thing he wanted me to add, other than that I don't believe he had.
(Ex. 2, Sentencing Tr. at 8.) At the habeas trial Eschuk testified that he advised the petitioner not to address the court at the time of sentencing and that the petitioner agreed with this advice. The court credits this testimony, and does not credit the petitioner's testimony that he was prevented by counsel from addressing the court. There was no evidence presented, besides the petitioner's own testimony, in support of the petitioner's claim. Moreover, at the habeas trial the petitioner boldly testified that if his daughter was eighteen years old he could have sex with her. Eschuk also testified to the petitioner's impudent attitude. Eschuk stated that prior to sentencing the petitioner asserted that he did nothing wrong and that God wanted him and his daughter to have sex. Based on what Eschuk knew at the time, it was certainly wise of him to advise the petitioner not to speak at sentencing. Any reasonably competent defense attorney would have done the same. Thus, the petitioner has failed to prove deficient performance.
Even if the petitioner could show that Eschuk's advice concerning the petitioner's allocution rights fell below an objective standard of reasonableness, the petitioner has not demonstrated that Eschuk's errors resulted in a longer term of incarceration. The petitioner argues that if he had been able to address the court and convey his remorse for committing the crime, the court would have given him a more lenient sentence. The sentencing transcript does reflect that the court was "disappointed that given the opportunity to express some remorse on the record" the petitioner elected not to do so. (Ex. 2, Sentencing Tr. at 9.) There is no indication, however, that the court would have imposed a reduced sentence had the petitioner actually expressed any remorse. In fact, the court stated on the record that a review of the PSI did "not offer anything that mitigates in [the petitioner's] favor" and that the particular facts of the petitioner's case were egregious and warranted a "heavy sentence." (Ex. 2, Sentencing Tr. at 9-10.) Moreover, the petitioner did not present any testimony at the habeas trial indicating that he was remorseful for what he had done, and even if he had, it is mere speculation as to how it would have affected his sentence. "In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation but demonstrable realities." (Emphasis in Original.) (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 860, cert. denied, 275 Conn. 905 (2005). The petitioner has failed to introduce sufficient evidence to prove that he was prejudiced by any alleged deficiencies in Eschuk's representation. His last ineffective assistance of counsel claim, therefore, fails on both parts of the Strickland-Hill test.
The court finds that the petitioner has failed to prove the claims asserted in the amended petition and, therefore, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.