Opinion
CV144005809
12-16-2016
Luis Rojas v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Luis Rojas, seeks habeas corpus relief from a total, effective sentence of thirty-three years imprisonment, imposed after his guilty pleas to manslaughter first degree in a file designated d.n. CR 96-491408; and two counts of sexual assault first degree, assault second degree, and two counts of risk of injury to a minor in file d.n. CR 95-470069. The petitioner asks that the court vacate his guilty pleas and/or sentences because his defense counsel, then Attorney and now Judge Karen Goodrow, provided ineffective assistance with respect to the entry of these pleas; that his due process rights were violated by an insufficient plea canvass; and because of actual innocence.
I
Due Process Violation
In the second count of his amended complaint, the petitioner alleges that the trial judge breached his right to due process of law by accepting his guilty pleas without determining whether the petitioner fully understood the mandatory minimum sentences appurtenant to the crimes, in contravention of the requirements of Practice Book § 39-19(2). The respondent has raised the affirmative defense of procedural default regarding this claim.
The court first considers whether the cause and prejudice standard of reviewability applies to the facts of this case. Connecticut Practice Book § 39-26 indicates that a defendant may withdraw his guilty plea as a matter of right but only before that plea has been accepted by the court. After acceptance, but before sentence is imposed, a defendant is permitted to withdraw his guilty plea upon proof of one of the grounds enumerated in Connecticut Practice Book § 39-27. Section 39-27(1) indicates that one such ground is the failure of the trial court to comply with Connecticut Practice Book § 39-19. Subsection (2) of § 39-19 requires the court to insure that a defendant fully understands the mandatory minimum sentences applicable before accepting his plea of guilty. Thus, under these Practice Book sections, the petitioner had available to him a procedural mechanism for withdrawing his guilty plea based on noncompliance with § 39-19, State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). However, this procedure must be invoked before sentence is imposed because § 39-26 precludes withdrawal of a guilty plea after sentencing.
The court holds that the failure of the petitioner to move to withdraw his guilty plea in a timely fashion and in accordance with our rules of practice is the kind of procedural default which requires a habeas court to undertake the cause and prejudice analysis to determine whether the habeas court will review the merits of the petitioner's claim. The burden to satisfy this standard before habeas review of his claim is on the petitioner, Johnson v. Commissioner, supra, 419. The court finds that the petitioner has failed to meet his burden in this regard.
The evidence produced at the habeas hearing disclosed no sufficient cause to excuse the failure to move to withdraw the guilty pleas before sentences were imposed. Cause means good cause, Johnson v. Commissioner, supra, 420. The mere fact that the petitioner or his attorney failed to recognize this claim does not constitute good cause, Id., 422.
The existence of good cause for a procedural default must ordinarily turn on whether " some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule, " Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (emphasis added). No evidence of any external impediment was presented at the habeas hearing.
II
Actual Innocence Claim
Habeas corpus relief in the form of a new trial based on actual innocence requires the petitioner to satisfy the criteria set forth in Miller v. Commissioner, 242 Conn. 745, 700 A.2d 1108 (1997).
The Miller criteria comprises a two-part test which requires a habeas petitioner asserting an actual innocence claim to prove, by clear and convincing evidence, that:
1. The petitioner is actually innocent of the crime for which he or she stands convicted; and
2. No reasonable factfinder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceeding, Miller v. Commissioner, 242 Conn. 745, 747, 700 A.2d 1108 (1997); Gould v. Comm'r of Corr., 301 Conn. 544, 557-58, 22 A.3d 1196 (2011).
The first component of the Miller criteria requires the petitioner to produce affirmative proof that he did not purposefully participate in the crime or crimes for which he was convicted. " Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred, " Gould v. Commissioner, supra, at 563 (emphasis in original). " Clear and convincing proof of actual innocence does not, however, require the petitioner to establish his guilt is a factual impossibility, " Id.
In the third count, the petitioner attempts to set forth a claim of actual innocence. In the return, the respondent has raised the issue of whether a habeas petitioner, who pleaded guilty under the Alford doctrine, has recourse to relief based on actual innocence. At lease one habeas court has dismissed such a claim as legally untenable, Johnson v. Warden, Superior Court, Tolland Judicial District, d.n. CV 11-4003874, (October 7, 2013), Newson, J.
Indeed, the logical disconnect between the concept of recognizing a binding plea of guilty, despite protestations of innocence to the crime for which the guilty plea entered, and the viability of a habeas claim for release from custody based on the fact that one is actually innocence of that crime appears ineluctable. As explained by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the federal constitution does not demand that one concede guilt in order to plead guilty and receive punishment accordingly, Id., 37. " [W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty, " Id.
The Alford doctrine affords a criminal defendant the opportunity to engage fully in a risk assessment to chart his or her course of action and forego a trial despite a personal denial of the commission of the offense charged. " [R]easons, other than the fact that he is guilty may induce a defendant to so plead, and he must be permitted to judge for himself in this respect, " Id., 33-34, (emphasis added). " [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, " United States v. Vonn, 535 U.S. 55, 69 fn.8, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). The pressure to plead guilty generated by the specter of a more severe punishment if found guilty after a trial does not vitiate the constitutionality of that guilty plea, North Carolina v. Alford, supra, 31.
There is great value in the common-sense notion that knowing and voluntary acts have binding consequences. The preliminary question posed in this case is whether an Alford plea forever forecloses collateral attack on that plea based on newly discovered information that may dramatically alter the evidentiary landscape surrounding the decision to plead guilty under that doctrine. A judicial system cannot countenance tentative or equivocal judgments simply because a defendant, who pleaded guilty and took advantage of that plea, later determines the better course would have been to await the result of a trial. After all, the defendant entered that plea precisely to eliminate the risk of the unknown in exchange for the benefit of a more certain future.
Hypotheticals and counter-examples abound. A criminal defendant may reasonably and intelligently choose to accept a plea offer because an essential alibi witness goes missing. Should that defendant be permitted to return to court years later to vacate that disposition because the prodigal witness returns. The court opines that most jurists would answer that question in the negative.
Suppose, on the other hand, a defendant entered an Alford plea to sexual contact with an underage person. Presume further that the real age of the putative victim was later determined to have exceeded the statutory prohibition. A different result might obtain in this latter scenario.
The court adopts an approach to " actual innocence" claims seeking to overturn Alford pleas that strikes the court as both workable and retentive of the logical underpinnings of both concepts. The court will not focus on whether the newly discovered evidence clearly and convincingly proves that the petitioner would have made a different choice had he known of the newly discovered evidence, as the court would under the Copas-Hill-Caraway analysis for straight guilty pleas, Carraway v. Comm'r of Corr., 317 Conn. 594, 600, fn.6, 119 A.3d 1153 (2015). Instead, the prejudice component of the Miller criteria described above would limit judicial scrutiny to whether a trial court canvassing the Alford plea would have determined whether a factual basis for the plea existed with the addition of the newly discovered evidence in mind.
In North Carolina v. Alford, supra, the Supreme Court's holding was clearly influenced by the circumstance that the state's evidence of guilt was strong, Id., 37-38. The court noted that " various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea, " Id., 38, fn.10. Connecticut procedure has long incorporated such a requirement, State v. Bugbee, 161 Conn. 531, 534, 290 A.2d 332 (1971); see Practice Book § 39-21.
This modification of the outcome component of the Miller test for Alford pleas would redirect the habeas court's analysis from predicting whether the petitioner's plea decision might have been different to whether the trial judge would have rejected the Alford plea if informed by the newly discovered evidence that a factual basis was lacking. By shifting the legal controversy from whether an Alford plea can be collaterally attacked, because the petitioner is actually innocent, to the continued existence of a factual basis, as enhanced by the newly discovered material, the logical paradox described above is avoided while the procedural possibility of recognizing that no one should suffer punishment where no crime occurred in the first instance is retained.
Before embarking on this analysis, for the present case, the court must confront a preliminary question. In the Gould case, our Supreme Court recognized, in a footnote, that that court has never decided whether the affirmative evidence of innocence must be newly discovered, Id., at 551, fn.8. The Supreme Court acknowledged, however, that the Appellate Court has imposed such a requirement, Id. See, Ortiz v. Commissioner, 166 Conn.App. 635, 145 A.3d 937 fn.3 (2016).
Indeed, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Comm'r of Corr., 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Comm'r of Corr., 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Comm'r of Corr., 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010); Weinberg v. Comm'r of Corr., 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Comm'r of Corr., 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Batts v. Comm'r of Corr., 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed 240 Conn. 547, 692 A.2d 1231 (1997). This court is, of course, bound by these holdings of the Appellate Court.
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence, Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest, " Id.
The petitioner has failed to proffer any newly discovered evidence in this case. The petitioner presented the testimony of Dr. Carl Wigren, a highly experienced, board-certified forensic pathologist whose duties entail training and examining future medical examiners. Dr. Wigren reviewed the forensic and laboratory results regarding the victim's death and opined that the infant's death probably resulted from infection rather than a blow to the head with a blunt instrument.
However, Dr. Wigren also testified that this opinion was deduced through use of scientific knowledge and standard forensic technique that were reasonably available at the time that the petitioner's defense lawyer sought such advice. Defense counsel consulted with a forensic pathologist in preparing for the petitioner's defense.
The office of the Chief Public Defender, at that time, often provided resources for expert witnesses in cases that warranted such expenditures. Goodrow was well-aware of that resource and had no reservations about utilizing a forensic expert where appropriate. Dr. Wigren's opinion cannot be classified as newly discovered because it was information that " could . . . have been discovered previously [through] the exercise of due diligence, " Skakel v. State, supra, 466-67. Therefore, the petitioner cannot prevail on the third count of his amended petition.
Ineffective Assistance Claims
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., at 151. Carraway v. Comm'r of Corr., 317 Conn. 594, 600, fn.6, 119 A.3d 1153 (2015).
Specifically, the petitioner avers that trial counsel performed deficiently because:
1. she failed to retain and consult with a forensic pathologist with expertise in shaken baby syndrome and child abuse;
2. she failed to advise the petitioner that the prosecuting authority lacked sufficient evidence to convict the petitioner of the second count of sexual assault in the first degree and manslaughter in the first degree;
3. she failed to file a motion to vacate the defendant's guilty pleas to the second count of sexual assault in the first degree and manslaughter in the first degree based on the lack of an adequate factual basis for the plea; and,
4. she failed to file a motion to vacate the defendant's guilty pleas based on the trial court's failure to determine that the petitioner understood the mandatory minimum sentences for the charges to which he entered guilty pleas.
A.
The petitioner first alleges that trial counsel proceeded ineffectively by failing to consult with and/or retain the services of a forensic pathologist, such as Dr. Wigren, in preparing his defense.
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. 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, 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 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 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 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.
Therefore, a claim of ineffective assistance based on the failure to consult with and use a defense forensic expert was waived by the petitioner's subsequent guilty plea. Of course, to the extent, if any, that Goodrow misadvised the petitioner regarding whether to accept the proposed plea disposition, the failure to engage such an expert may have a bearing on that issue.
B
Next, the petitioner alleges that Goodrow failed to apprise him that the state's case against him was weak as to the sexual assault first degree and manslaughter first degree charges. In advising the petitioner regarding the sufficiency of the prosecutor's evidence to prove the elements of these crimes beyond a reasonable doubt, defense counsel must necessarily evaluate that evidence from the viewpoint most supportive of conviction because the fact-finder would be free to take that viewpoint.
The petitioner also faults Goodrow for failing to move to vacate the Alford pleas on the same basis, that sufficient evidence to convict was lacking. Because both specifications of ineffective assistance rest on the same factual allegation, the court addresses both claims in tandem.
The evidence adduced at the habeas trial included oral and written statement by the petitioner at or near the time of the infant's death, police reports, state forensic laboratory results, and the reports of the office of the Medical Examiner. Construing the evidence and reasonable inference most favorably toward the prosecution in order to assay whether the state had sufficient evidence to support conviction as to the manslaughter first degree and to the sexual assault first degree counts, the court finds that the incriminating evidence existing at the time of the Alford pleas was more than sufficient to establish a factual basis for those pleas and to have survived a motion for judgment of acquittal at a hypothetical trial.
The victim's mother and her four children began living with the petitioner about four months before the baby's death in March 1995. The petitioner was very intolerant of the older children's behavior, and, through physical discipline by the petitioner, the children learned to sit quietly whenever the petitioner was at home. In February 1995, the child's mother discovered that the nine-month-old baby's leg was broken. At first, the petitioner denied even being at home when the spiral fracture occurred; later, he admitted he was there when one of the older children caused the injury. His third version was that he accidentally broke the infant's leg while trying to free its leg which had become stuck under a box spring. Finally, he acknowledged that he broke the child's leg when he playfully flung the nine-month-old onto a bed while gripping the leg.
Medical staff at St. Francis Hospital applied a cast to the fractured leg, and the mother was scheduled to return with the baby on March 9, 1995, for removal of that cast. Around 9 a.m. on March 9, 1995, the mother had a meeting with a worker from the Department of Children and Families concerning one of the other children, and she left the baby in the petitioner's care in order to attend that meeting. Upon returning home at around 11:45 a.m., she noticed that the baby lay motionless on a bed, and the child stared listlessly. Normally, the infant was quite active and cheerful. The mother asked the petitioner why the baby was acting abnormally. The petitioner made no response and left the residence to take the other children to school.
The mother kept the appointment at St. Francis Hospital, but because the fracture mended incompletely, the cast remained in place. The family arrived home from the hospital at about 3:30 p.m. The mother unsuccessfully attempted to feed her typically hungry baby. The child remained unusually passive.
The petitioner came home around 6:45 p.m., and reeked of beer. He wrapped the child very tightly in a blanket so that only a small opening appeared just above the infant's face. He then started throwing the baby into the air and catching her. The baby was crying, and her mother and the other children begged the petitioner not to hurt the child. The petitioner screamed at the mother and tossed the infant onto the bed. The momentum caused the baby to bounce, and the petitioner remarked that " the baby ain't hurt." When the child landed on the bed, her crying immediately ceased.
The mother tried to unwrap the blanket, but the petitioner intervened to prevent her from loosening the blanket. He insisted that the baby be kept warm despite the fact that the room was already warm, and the infant wore sweatsuit type clothing.
Around 3 a.m. on March 10, 1995, the baby was crying. Her mother checked her diaper which was dry. The child had no appetite, and perspiration soaked her clothes. The mother unwrapped the child's blanket.
At 7 a.m., as the mother roused the other children for school, she saw that the baby was very pale and her lips were blue. The child struggled to breathe. The mother rushed her daughter to the hospital, where her condition was grave. She died three days after.
When the doctors examined the baby upon arrival at the hospital, they observed that the infant had a small tear and bruising around the anus, bruising in her vagina, and genital swelling. The tear had begun to heal, but the bowel had been perforated. The doctors deduced that the injuries were likely the result of sexual abuse.
Upon learning of their conclusion, the mother confronted the petitioner about what he had done to the baby. She never mentioned sexual abuse. The petitioner cast his eyes downward and said, " I didn't rape the baby."
This information triggered the mother's recollection about an incident that happened about one week previously. The petitioner declared that he would no longer change the baby's diaper nor bathe her. He announced that he would cease such tasks because he did not want to be blamed for anything like inappropriately touching the baby.
When the police questioned the petitioner, he initially denied any knowledge of the baby's injuries. Eventually, he confessed, and his confession was preceded by revealing that he had been beaten and raped by a stranger when he was seven years old. He admitted that, while bathing the child, he inserted his middle finger into the baby's rectum for about one-half a finger-length and repeated this action several times. He stopped when the child began to cry. He saw blood coming from her rectum. He supplied no excuse for his behavior and pleaded that " I need help from a doctor."
The autopsy report prepared by the medical examiner noted a quarter-inch laceration, partially healed, present in the rectum, along with bruising of the rectal tissue opposite from the tear. Further, the bruising to the baby's vagina occurred both on the outside and interior of the hymenal membrane and labia. The report stated that the damage to the rectum and to the vagina were the result of separate injuries. The vaginal contusion " does not extend to the area of either of the rectal lesions and is not in continuity with them."
Dr. Carver, then the Chief Medical Examiner, also diagnosed that the baby had suffered a contusion of the cervical spinal cord and a large hematoma in the layer between the infant's scalp and skull. Dr. Carver concluded that these injuries were caused by blunt trauma to the head and neck. This trauma caused the child's death, and Dr. Carver ruled the death a homicide. In reaching his conclusions, Dr. Carver consulted with a neuropathologist, Dr. Dean Uphoff.
Dr. Uphoff noted in his report to Dr. Carver that " sections of the spinal cord show a small centrally located hemorrhage in the upper cervical region." Upon his examination, Dr. Uphoff found " numerous pathological changes in the brain." " The spinal cord lesion is perhaps the most significant, in showing clear-cut changes of hemorrhage and necrosis of both tissue and nerves" which lesion was " incompatible with prolonged life." He determined that the child sustained an " infarct of cervical spinal cord consistent with compression injury."
The pertinent definition of manslaughter first degree is contained in General Status § 53a-55(a)(3), which states that a person commits the crime when " under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." The evidence recounted above describes misconduct by the petitioner that, if believed, satisfies this definition.
A reasonable fact-finder could logically conclude that the petitioner, while under the influence of beer, repeatedly tossed a nine-month-old infant into the air, despite the baby's broken leg and despite the protestations of those viewing this spectacle, and recklessly allowed the baby to strike the bed with enough force to rebound into the air above a bed. The fact-finder could logically infer that the petitioner acted with a conscious disregard of a substantial, unjustifiable, and grave risk of fatally injuring the baby, such as by trauma to the infant's back, neck, and head, and thereby evinced an extreme indifference to human life that caused the child's death.
The petitioner confessed to sexually abusing the child by digital penetration of the anus which injured the baby. That action was corroborated by medical examination. Because similar, but disconnected, contusions were also discerned relative to the vaginal area, a reasonable fact-finder could infer that the petitioner also digitally penetrated the baby's vagina as well. Digital penetration satisfies the definition of sexual intercourse, State v. David N.J., 301 Conn. 122, 159, 19 A.3d 646 (2011). Each act of sexual intercourse is a separate crime, State v. Anderson, 211 Conn. 18, 26, 557 A.2d 917 (1989). This abuse perforated the child's bowel, which wound could also have contributed to the baby's weakened condition.
Because sufficient evidence existed within the state's case, if credited, to support factual bases for manslaughter first degree and two counts of sexual assault first degree, the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that the allegations set forth in the second and third specifications of ineffective assistance, he cannot prevail as to these allegations.
C
Mandatory Minimum Sentences
The final specification of ineffective assistance asserts that defense counsel failed to move to vacate the petitioner's guilty pleas because the trial court never ensured that the petitioner understood the mandatory sentencing minima for the crimes to which he pleaded guilty. Goodrow testified at the habeas trial that, although she lacked a specific memory of doing so, her customary practice was to discuss any mandatory minimum sentence with her clients before they pleaded guilty to an offense that carried such a penalty. Despite the petitioner's testimony to the contrary, the court finds that Goodrow educated the petitioner as to these minima before he decided to accept the plea disposition.
The court also determines that even in the absence of such pre-plea advice, Goodrow had absolutely no professional obligation to move to vacate the petitioner's guilty pleas simply because the trial judge neglected to canvass the petitioner with respect to that information as directed by Practice Book § 39-19(2). A defendant may not withdraw his guilty plea after the sentencing proceedings, Practice Book § 39-26, and the petitioner never expressed to his lawyer any desire to withdraw his guilty pleas during the interval between the entry of the guilty pleas and sentencing.
Noncompliance with Practice Book § 39-19(2) or (3) invokes no automatic invalidation of a guilty plea nor does it render the plea " unknowing or involuntary, " State v. Domian, 235 Conn. 679, 684, 668 A.2d 1333 (1996). The petitioner is obliged to prove that, had he known of the mandatory minima, he would have rejected the plea offer, State v. Johnson, 253 Conn. 1, 45, 751 A.2d 298 (2000). No credible evidence was presented to support that proof.
To the contrary, because the judicially indicated and imposed sentences exceeded any mandatory minimum sentence, it is difficult to envision how ignorance of that information would have negatively influenced the petitioner's decision to plea guilty, State v. Johnson, supra, 46. Indeed, on December 2, 1996, after then Judge, now Justice Espinosa refused to accept a disposition with a lesser period of incarceration, and after the criminal case was continued so that the petitioner might consider whether to accept or reject Judge Espinosa's proposed thirty-three-year total, effective sentence, the petitioner reiterated his wish to maintain his pleas of guilty and receive the longer prison term indicated by the judge. This was more than three months after he had entered those pleas on August 19, 1996. Consequently, the court finds that the existence of those mandatory minimum sentences was immaterial to the petitioner's decision to plead guilty.
The amended petition for habeas corpus relief is denied as to all counts and claims.