Opinion
TSRCV104003372.
12-12-2012
Marlon SYMS v. WARDEN, STATE PRISON.
UNPUBLISHED OPINION
SFERRAZZA, S.J.
The petitioner, Marlon Syms, seeks habeas corpus relief from imprisonment which resulted from his guilty pleas to first degree robbery and conspiracy to commit first degree robbery. He entered these pleas, under the doctrine of North Carolina v. Alford, 400 U.S. 25 (1970), on March 19, 2009, at the criminal division of Part A for the Hartford Judicial District. For these crimes, on June 24, 2009, Judge Gold sentenced the petitioner to serve fourteen years imprisonment followed by six years of special parole. These sentences were concurrent with each other but consecutive to a two-year sentence which he was already serving for an unrelated conviction. The petitioner alleges, in the first count, that his defense counsel, Attorney Wesley Spears, provided ineffective assistance, and, in the second count, that the Department of Correction has miscalculated his jail credit.
Jail Credit
On July 2, 2008, at G.A. 19 in Rockville, the petitioner received a total, effective sentence of five years incarceration, suspended after the service of two years, and five years probation for violating prescription drug laws in a case denated as CR 07-90616. Therefore, when the petitioner was sentenced in the Hartford case, on June 24, 2009, he was already a sentenced prisoner for the G.A. 19 matter and had been since July 2, 2008. The petitioner contends that he is entitled to jail credit time for pretrial confinement in the robbery case up to the day he was sentenced in that case.
The petitioner's contention is erroneous. Under General Statutes § 18-98d(a)(1)(B), an inmate receives credit for presentence confinement only if the inability to post bail " is the sole reason for such person's" incarceration. Because the petitioner was serving a prison sentence for the G.A. 19 convictions, he cannot obtain jail credit for his inability to make bail in the Hartford robbery case after July 2, 2008. The amended petition is denied as to the second count.
Ineffective Assistance
The petitioner specifically alleges that Attorney Spears rendered ineffective assistance in his robbery case in that:
1. Attorney Spears failed to advise him properly as to the elements of first degree robbery and conspiracy;
2. He failed to advise the petitioner regarding the special defense of inoperability of the weapon brandished during the robbery;
3. He improperly advised the petitioner that even involuntary ingestion of PCP was no defense to the robbery charges;
4. Attorney Spears failed to investigate and procure an expert regarding the petitioner's psychiatric history and the effect of his psychiatric condition and/or medications in producing the petitioner's involvement in the robbery;
5. Attorney Spears ought to have moved for Judge Gold to recuse himself from the robbery case because of the judge's participation in the plea negotiation process;
6. Attorney Spears incorrectly advised the petitioner as to the maximum sentences, minimum mandatory sentences, special parole, and the possibility of consecutive sentences; and
7. He never told the petitioner he was entitled to withdraw his guilty pleas.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (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 court first addresses the effect of the petitioner's guilty pleas on certain of his claims of deficient representation by Attorney Spears.
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 (1985); State v. Banks, 24 Conn.App. 408 (1991). 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. Reid v. Reincke, 155 Conn. 591 (1967); State v. Baez, 194 Conn. 612 (1984).
The 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 (1971); Reed v. Reincke, supra; Cajigas v. Warden, 179 Conn. at 78 (1979).
Thus, the court must next determine whether or not 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 already addressed this issue, also. In Dukes v. Warden, supra, the court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of pre-plea, constitutional deficiencies.
Several federal court cases have arrived at the same conclusion. In Siers v. Ryan, 773 F.2d 37 (CA3, 1985), cert. denied, 490 U.S. 1026, 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.
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 to 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), petitioner entered a guilty plea and later filed a federal habeas petition claiming 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, " 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 was well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation, " 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 is unrelated to it, the merits of the petitioner's claims need not be reached, 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, " 327, (emphasis added).
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, " 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, " 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 Duke v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to the taking of the plea.
In State v. Niblack, 220 Conn. 270 (1991), our Supreme Court reiterated its holding in State v. Madera, supra, that a guilty plea operates as waiver of all nonjurisdictional, previous defects except for those which inhere in the taking and acceptance of that plea by the court, Id., at 276-277. Also, the Appellate Court in McKnight v. Commissioner, 35 Conn.App. 762 (1994), acknowledged in a footnote that this waiver applies to ineffective assistance claims, Id., at 764, fn 5, and that the antecedent, substandard performance by defense counsel does not form the basis to attack the validity of a later guilty plea, Id.
This court, in Whyte v. Warden, Superior Court, Tolland J.D., d.n. CV 91-1356 (July 24, 1995), held that an allegation of insufficient trial preparation and deficient performance during a trial are waived by a subsequent change of plea to guilty. This holding was affirmed by the Appellate Court, per curiam, Whyte v. Commissioner, 44 Conn.App. 815 (1997).
Consequently, the petitioner's allegations of substandard representation by Attorney Spears which relate to pretrial investigation of the petitioner's psychiatric history and the legal effect of the involuntary or voluntary inhalation of PCP as a defense was waived by his guilty pleas on March 19, 2009.
The court next focuses on those allegations which concern the entry of the guilty pleas. If it is easier to dispose of an ineffective assistance claim for failure to satisfy the prejudice prong of the Strickland standard, the habeas court may address that issue directly, Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). With respect to weighing that prejudice prong in habeas cases involving the entry of guilty pleas, the United States Supreme Court has set forth guidelines in the case of Hill v. Lockhart, 474 U.S. 52, 59-60 (1985). The criterion announced in Hill v. Lockhart, supra, was incorporated into Connecticut habeas jurisprudence, Copas v. Commissioner, 234 Conn. 139, 156-157 (1995). Under Hill, the habeas petitioner must prove that, but for defense counsel's unprofessional representation, the petitioner would have elected not to plead guilty and that there exists a reasonable probability that the result of that election would have been more favorable than that which occurred, Copas v. Commissioner, supra, at 151; State v. Aquino, 89 Conn.App. 395, 408 (2005).
The court finds that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that, but for Attorney Spears purported deficiencies, the petitioner would have rejected the plea disposition indicated by Judge Gold. These allegations of ineffectiveness are that Attorney Spears never explained the elements of the offenses of first degree robbery and conspiracy and the potential sentences which might be imposed.
A review of the March 19, 2009 transcript discloses that the petitioner pleaded guilty under the Alford doctrine and that Judge Gold indicated that, even though the prosecution was urging a twenty-year prison sentence, the court would consider imposing a sentence between ten and twenty years. The judge expressly informed the petitioner that special parole or probation supervision was a distinct possibility if the sentence were to be less than twenty years. Judge Gold told the petitioner:
I want to reserve the right to impose special parole. Now, I'm not saying [the sentence] has to add up to twenty, but it won't add up to anything more than twenty ... It doesn't have to add up to twenty, but that's the maximum. That's how it works.
In response to Judge Gold's inquiries, the petitioner acknowledged that he had had enough time to discuss the disposition with Attorney Spears and that Attorney Spears had explained to him the nature of the crimes and elements of those crimes to which he pleaded guilty. The petitioner also related that Attorney Spears had reviewed the possible penalties which those crimes carried and that he was satisfied with his attorney's advice. Attorney Spears also responded that he had discussed these matters with the petitioner.
Judge Gold then discussed the elements of the crimes to which the petitioner had pleaded guilty and the maximum sentence provided for the robbery and conspiracy charges. The judge reiterated the special parole possibility and the contours of that sentencing option. The judge further explained that, once the guilty pleas were accepted, the petitioner could not withdraw those pleas even if the petitioner was disappointed with the outcome. The petitioner stated he understood all that had been explained and had no questions for the judge.
At the habeas trial, the petitioner testified and conceded that he pleaded guilty because he was offered a prison sentence between ten and twenty years. That was precisely the type of sentence he received. The court determines that even if the petitioner was explicitly informed that the sentences in the robbery case might be made consecutive to the remainder of the two-year sentence, which had been imposed almost one year before sentencing in the Hartford case, the petitioner would still have chosen to plead guilty.
The combined sentences were within the twenty-year upper limit which Judge Gold had indicated. The fact that Judge Gold imposed a fourteen-year prison term consecutive to the remainder of the two-year previous sentence resulted in a total, effective sentence of less than sixteen years imprisonment.
Because that total, effective sentence fell within the maximum length of incarceration indicated by the judge, the petitioner had no right to withdraw his guilty pleas on the basis of having the sentences run consecutively. Therefore, Attorney Spears could not have been ineffective for failing to advise the petitioner of a nonexistent right to withdraw his pleas.
Also, the petitioner alleges that Attorney Spears told him that, he could expect his earliest release date to arrive before the petitioner attained fifty years of age. This advice could not possibly have been given before sentencing because Judge Gold could have imposed imprisonment for as much as twenty years. It was only after sentencing that the sixteen-year maximum was known. More importantly, the court credits the testimony of Michelle Deveau, a DOC records specialist, who determined that the petitioner's earliest parole date does, indeed, occur before his fiftieth birthday. Therefore, this allegation of misadvice also fails.
The remaining allegations of ineffective assistance pertain to Attorney Spears failure to correct errors in the PSI report and to move to have Judge Gold recused as the sentencing judge.
The petitioner cites no legal principle which suggests that a judge who has facilitated a plea disposition cannot be the sentencing judge. It is the case that a judge who had engaged in unsuccessful plea discussions cannot then preside over the trial and sentencing which follow the rejected disposition, State v. Fullwood, 194 Conn. 573, 578-580 (1984). In the absence of some other disqualifying factor, the judge who has sanctioned a disposition is free to impose the sentence fulfilling the plea arrangement, State v. Niblack, supra, at 280; Safford v. Warden, 223 Conn. 180, 194-195 (1992).
The final claim asserts that Attorney Spears failed to rectify certain errors in the PSI report. This assertion is meritless. Before the sentencing hearing, Attorney Spears reviewed the contents of the PSI with the petitioner. The petitioner then sent to Attorney Spears a letter outlining his " complaints" about certain statements in the report concerning the petitioner's upbringing and background.
At the sentencing hearing, Attorney Spears recounted the petitioner's disagreements relevant to the petitioner's background. The petitioner also addressed the court at the hearing. His allocation never sought to correct any other purported errors in the report. The court finds that the petitioner has failed to prove that Attorney Spears was deficient in this regard or that any erroneous information in the PSI altered the sentence ultimately rendered.
For theses reasons, the petition is denied.