Opinion
No. CV 04 4000230
March 5, 2008
Memorandum of Decision
The petitioner in this habeas corpus case claims primarily that his trial defense counsel, attorney Stephen H. Solomson, was ineffective by advising him to reject the state's offer of twenty years for sixteen robbery charges and instead litigate a motion to suppress, which Solomson purportedly predicted would be successful. The court, however, does not credit the petitioner's testimony to that effect. Instead, the court credits the testimony of Solomson, who had a different version of the advice he supplied to his client. Solomson testified that he fully informed the petitioner of the costs and benefits of accepting the offer, that he was "cautiously optimistic" about the motion to suppress but did not tell the petitioner it was a "sure thing," and that he ultimately told the petitioner that it was up to him as to whether to reject the offer and go forward with the motion to suppress.
This advice was within the range of that of a reasonably competent defense counsel. Although it is true that the trial court ultimately denied the motion to suppress and the Appellate Court affirmed that decision; State v. Strano, 85 Conn.App. 212, 855 A.2d 1028, cert. denied, 271 Conn. 946, 861 A.2d 1179 (2004); "a tactic [devised by defense counsel] that appears ineffective in hindsight may have been sound strategy at the time . . ." (Internal quotation marks omitted.) Bowden v. Commissioner of Correction, 93 Conn.App. 333, 339, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). In this case, the motion to suppress hearing took some eight days, the petitioner filed a sixty-nine page brief, and the Connecticut case law regarding Terry stops of automobiles — which was the main issue in the motion — was somewhat favorable to the defendant at the time. See State v. Donahue, 251 Conn. 636, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924 (2000). Further, the legality of the stop was essentially the only disputed issue in the case and a successful motion to suppress would have crippled the state's case. Thus, the court cannot regard the motion to suppress as frivolous. For that reason, the petitioner has not overcome the presumption that Solomson's approach to the case, which embodied a willingness to litigate the motion while leaving the ultimate decision up to the petitioner, was a reasonable defense strategy. See Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). Therefore, the petitioner has not proven the deficient performance component of his ineffective assistance of counsel claim. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006).
In addition, the petitioner stated at the guilty plea colloquy that he was satisfied with the advice and help he had received from his attorney and that there was nothing that counsel had failed to do when asked by the petitioner. (Exhibit 9, p. 18.)
Further, Solomson's advice was not the principal factor that motivated the petitioner to reject the plea offer. The principal factor was instead the petitioner's complete unwillingness to accept a twenty-year sentence for fear that, as a fifty-year old, he would spend the rest of his life in prison. The court credits Solomson's testimony that the petitioner claimed that he would rather die or commit suicide than accept the state's offer. Moreover, as Solomson testified, the petitioner "drove the bus," meaning that the petitioner made up his own mind concerning the course of his defense. The reality, as the testimony also established, was that Solomson had little or no choice but to litigate the motion to suppress because of the petitioner's unequivocal rejection of the twenty-year offer. Thus, because Solomson's advice to the petitioner concerning the motion to suppress was not the operative cause of the petitioner's rejection of the plea offer, that advice did not result in prejudice to the petitioner, which is an essential element of an ineffective assistance of counsel claim. See Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458.
State's attorney Matthew Gedansky testified that he thought the state's offer was thirty, rather than twenty, years to serve. If that were the case, then it is even more likely that the petitioner would have rejected the offer without consideration of Solomson's view of the merits of the motion to suppress, because a thirty-year sentence was more likely to become an effective sentence of life in prison, which the petitioner passionately opposed.
The court has reviewed the petitioner's other claims, all of which focus on various aspects of the advice Solomson provided in connection with the state's plea offer and the petitioner's motion to suppress. The court finds that Solomson fully and adequately explained all of the relevant options, consequences, and considerations. Accordingly, the court finds no merit to the petitioner's claim of ineffective assistance of counsel.
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.