Opinion
CV124004741S
08-14-2017
Ira Alston (Inmate #275666) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver.
The petitioner, Ira Alston, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the petitioner's claims. The court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
The petitioner was the defendant in State of Connecticut v. Ira Alston, Docket Number TTD-CR08-0093113-T, in the Tolland Judicial District. The petitioner was charged with one count of possession of a weapon or dangerous instrument in a correctional institution, in violation of Connecticut General Statutes § 53a-174a. The state also charged the defendant in two-part information as a persistent serious felony offender. (Ex. E.) The defendant, at the time of trial, was serving a thirty-five-year term of imprisonment related to his convictions, in 2002, of manslaughter in the first degree and carrying a pistol without a permit, as well as his conviction, in 2003, of larceny in the third degree. On October 1, 2010, the petitioner was convicted, after guilty plea, of one count of possession of a weapon or dangerous instrument in a correctional institution. (Ex. E, G.) On October 1, 2010, the court, Sullivan, J., sentenced the petitioner to one year to serve, consecutive to his previously imposed sentence. The petitioner was represented at all relevant times by attorney Douglas Ovian.
The petitioner's convictions were affirmed on direct appeal. State v. Alston, 141 Conn.App. 719, 62 A.3d 586, cert. denied, 308 Conn. 943, 66 A.3d 884 (2013). In affirming the judgment below and finding that the petitioner's guilty plea was entered voluntarily and that the trial court had jurisdiction over the subject matter based on having put the petitioner on notice as to elements of the offense, the court made the following relevant findings.
" The defendant, Ira Alston, appeals from the judgment of conviction rendered following his guilty plea to the crime of possessing a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. The defendant claims that the court (1) improperly accepted his plea because it was not made voluntarily, and (2) lacked subject matter jurisdiction because the information failed to state all of the essential elements of the crime with which he stood charged. We affirm the judgment of the trial court.
" By substitute information dated November 20, 2008, the state charged the defendant with possessing a weapon or dangerous instrument in a correctional institution. On October 1, 2009, the defendant's attorney, public defender Douglas Ovian, informed the court that the defendant wished to plead guilty in accordance with a plea bargain reached with the state. After the defendant entered a guilty plea, the prosecutor set forth the factual basis for the plea. The prosecutor stated that on June 30, 2008, while the defendant was an incarcerated prisoner at Northern Correctional Institution, he was found to possess an instrument consisting of a pen with a razor blade attached to it. The instrument was found on the defendant's person, concealed in his boxer shorts. Days prior to this discovery, the defendant and his cellmate were given razors for shaving purposes, but later told prison staff that they had disposed of the razors by flushing them down the toilet. Following a canvass of the defendant, the court found that the plea was knowingly, voluntarily and intelligently entered with the effective assistance of counsel, and accepted the plea. Thereafter, the court imposed the agreed-upon sentence of one year incarceration, consecutive to the defendant's existing term of incarceration.
" The defendant argues that his statements during the plea canvass reflect that his plea was coerced, rather than voluntary. The plea was coerced, he asserts, because it resulted from the denial of his right to the effective assistance of counsel. He states that " [the] plea was the result of force because it was based on his belief that his attorney failed to represent him." He argues that his statements at the time of his plea did not reflect that the plea was voluntary, the court did not make a record to demonstrate the voluntariness of the plea and that this court cannot presume that the plea was voluntary. The defendant did not raise the present issue before the trial court, either by moving to withdraw the plea or otherwise . . .
" The following additional facts are relevant to our analysis. On October 1, 2010, before the court, Hon. Terence A. Sullivan, judge trial referee, the defendant withdrew his prior pleas and elections, and pleaded guilty to the crime of possessing a weapon or dangerous instrument in a correctional institution. The prosecutor set forth the factual basis for the plea and indicated that the plea agreement was for one year to serve, consecutive to any sentence imposed previously.
" The court proceeded to canvass the defendant concerning his plea. The court asked the defendant if he had discussed with Ovian the decision to change his plea. The defendant replied affirmatively. The court asked the defendant if Ovian had explained the essential elements of the crime to him. The defendant replied that he did not understand the elements of the crime. After a colloquy between the court, Ovian and the defendant, the defendant stated: " I don't understand it . . . what I do understand is regardless of . . . the representation that I've been given by Douglas Ovian, that it really doesn't matter. So, weighing those options, [if] I go to trial with his representation, there's no way I'm going to be successful whether I'm guilty or not guilty. So, I'm just going to take the one year instead of going to trial with him and getting [up to a twenty-five-year term of incarceration].
" The court then asked if the defendant intended to make an Alford plea, at which time Ovian stated that he was unsure. The following colloquy occurred:
[The Defendant]: I don't even understand [the] Alford plea. This is new to me. I didn't get [any] notice. I didn't even know I had court today. I was pulled in, and he's telling me all of this, that we're starting a jury trial. He didn't even discuss trial strategy with me. So, in light of all of that, I know I'm unprepared for a trial. With his representation, there ain't no way I will be successful at a trial. It just came up today. Now, Alford came up today. All of this is new today. And I don't understand-I never seen the Alford case. I don't know what Alford requires, so in light of one year to what he says, twenty-five years, and the representation that I'm given, I'm stuck between a hard spot and a rock.
The Court: So, tell me what you want to do?
[The Defendant]: In light of everything I just said, I don't have the necessary means to employ private counsel. I'm not saying that I'm guilty.
" Additional discussion between the court and the defendant occurred. Once more, the court discussed with the defendant the elements of the crime. The defendant questioned whether the state had to prove that he used a dangerous instrument. The court informed the defendant that this was not the case. The defendant represented that he understood that, by pleading guilty, he was forgoing his right to a trial, his right to remain silent, his right to confront adverse witnesses and present evidence on his behalf and his right to require the state to prove his guilt beyond a reasonable doubt. The defendant stated that he understood the state's burden of proof with regard to the crime with which he stood charged. The following colloquy then occurred:
The Court: Okay. Now, I hate to even ask this because it's-you're not thinking the way that I'm thinking-but I have to ask you, is anyone threatening or forcing you to enter this plea today?
[The Defendant]: Forced by?
The Court: By anybody? Is anybody threatening you that . . . you have to plead guilty today?
[The Defendant]: Not in the sense that you're presenting it. It means, like, physical harm?
The Court: I'm talking about any kind of coercion, threats-
[The Defendant]: I feel pressured, yes.
The Court: If you don't plead guilty, we're going to do something to your family. If you don't do something, we're going to take you out and beat you up-that type of thing.
[The Defendant]: Not in that context, no.
" The court questioned the defendant about the plea agreement with the state, the sentence to which he was exposed if he did not plead guilty and other consequences of his plea. The defendant stated that he understood these facts and consequences. The following colloquy ensued:
[The Court]: You've indicated to me that you understand what the plea agreement is, and I'm going to ask you once more, are you sure that this is what you want to do today, because it has to be decided now. I need to know whether or not you-I'm asking you for a final time, is this what you've decided to do, not that you like it, but this is what you've decided to do and it's your decision. It's your decision right now, but if I find you guilty, then the decision is gone.
[The Defendant]: In light of the circumstances, yes, I did decide.
The Court: Okay. And this is what you want to do today?
[The Defendant]: In light of the circumstances, yes.
" The court found that the plea was entered knowingly, voluntarily and intelligently, with the effective assistance of counsel. The court found that there was a factual basis for the plea. The court accepted the plea and found the defendant guilty of possessing a weapon or a dangerous instrument in a correctional institution. The court asked the defendant if he wished to have a presentence investigation, to which the defendant replied, " I accept the plea offer."
" The court invited the defendant to address the court prior to imposing sentence. The defendant questioned whether he had the right to appeal, and then stated: " What I'm going to say is that the only reason why I'm taking the plea is because I feel under these circumstances there has been nothing done on my behalf that would even give me the remotest possibility of being successful at a jury trial. Weighing that against the state's resources, I have no other choice but to accept one year or go to trial under the circumstances and possibly to be exposed to twenty-five years." The court replied: " I think you can appeal. I think anybody can appeal." Thereafter, the court imposed his sentence.
" We carefully have reviewed the court's canvass of the defendant. The transcript of the proceeding reflects, and the defendant does not challenge, that the court's canvass complied with the requirements of Practice Book § § 39-19 and 39-20. The narrow issue is whether the defendant's statements reflected that the plea was not voluntary. We reject the defendant's argument that his statements reflected coercion. The defendant expressed his belief that, with Ovian's representation, his chances for success at trial were low. Before this court, the defendant alleges that " he indicated that he was pressured [into entering a guilty plea] in the sense that if he did not enter a plea, he would have to proceed to trial with an attorney with whom he had a conflict and whom he did not believe would properly represent him.
" The defendant's argument fails, however, because the defendant's statements reflect that he personally considered the options available to him on October 1, 2010, and decided that entering a guilty plea was the best option available to him. The decision of whether to plead guilty or proceed to trial is a customary part of the criminal process. The defendant unambiguously explained that his decision was based on his own careful assessment of the options available to him as well as his chances for success at trial. In this sense, the plea was demonstrably voluntary. Nothing in the defendant's statements suggests that he lacked the freedom to choose between pleading guilty or proceeding to trial.
" The defendant's expression of his subjective beliefs that Ovian's representation was deficient and that he would not prevail at trial with Ovian's assistance was not evidence that the defendant's decision to plead guilty was not voluntary but merely provided a rational explanation for the defendant's plea. " Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea." State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986).
" For the foregoing reasons, we conclude that the defendant's statements during his canvass reflect that his plea was entered voluntarily. Accordingly, we conclude that the defendant cannot prevail under Golding because he has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.
" Next, the defendant claims that the court lacked subject matter jurisdiction because the information failed to state all of the essential elements of the crime with which he stood charged. We disagree.
" By way of a short form information, the state charged the defendant with " POSS OF WEAPON/DANGEROUS INST IN CORRECTIONAL FAC . . . AT Somers ON OR ABOUT . . . 6/30/2008 IN VIOLATION OF GENERAL STATUTE NO. 53a-174a." The substitute information, dated November 20, 2008, provides in relevant part: " Matthew C. Gedansky, State's Attorney for the Judicial District of Tolland accuses IRA ALSTON of POSSESSION OF WEAPON OR DANGEROUS INSTRUMENT IN A CORRECTIONAL INSTITUTION, and charges that in the area of Northern Correctional Institution, 287 Bilton Road, in the town of Somers on or about the 30th day of June 2008, at approximately 6:00 p.m., the said Ira Alston, being an inmate of such institution, knowingly made, conveyed from place to place, or had in his possession or under his control any firearm, weapon, dangerous instrument, explosive or any other substance or thing designed to kill, injure or disable, in violation of Connecticut General Statutes § 53a-174a."
" Section 53a-174a(a) provides: " A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable."
" The defendant argues that the information did not allege that he committed a crime because it failed to allege the manner in which he used the object found in his possession. The defendant argues that both the statutory definition of " dangerous instrument" and the dictionary definition of " weapon" require a certain type of use with regard to the object that is the subject of the offense. Here, the defendant argues, there was no allegation that he used or intended to use the object in any manner. Citing United States v. Foley, 73 F.3d 484, 487-88 (2d Cir. 1996), the defendant argues that the failure of the information to charge an offense deprived the trial court of subject matter jurisdiction. The defendant's claim is limited to the jurisdictional issue; he does not argue that the alleged defect in the information caused unfair surprise or any other type of prejudice to the defense. The claim that the information failed to charge an offense is reviewable at any time during the pendency of the proceedings. See Practice Book § § 41-4 and 41-5.
" When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state . . . Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had." (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 250, 585 A.2d 677 (1991).
" When the state's pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty . . . We have held that [u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense." (Citation omitted; internal quotation marks omitted.) State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).
" Here, the short form information set forth, among other information, the name of the offense, the exact section and subsection of the statute under which the defendant was charged, the date on or about which the crime was committed as well as the location in which the crime was committed. The long form substitute information set forth this same information about the crime with which the defendant was charged as well as a specific description of the elements of the offense.
" Previously, we set forth the language of § 53a-174a(a). To sustain a conviction under § 53a-174a, the state bears the burden of proving beyond a reasonable doubt three essential elements, namely, that (1) while the accused was an inmate of a correctional institution, (2) he made, conveyed from place to place, possessed or had under his control, (3) any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable. The substitute information articulated each of these three essential elements, alleging that the defendant was an inmate at " Northern Correctional Institution" at 6 p.m. on June 30, 2008, at which time he " knowingly made, conveyed from place to place, or had in his possession or under his control" one of the things listed in the statute, specifically, " any firearm, weapon, dangerous instrument, explosive or any other substance or thing designed to kill, injure or disable . . ."
" This court has held that an information that states the exact section and subsection of the statute under which a defendant is charged, as well as the time and place of the alleged unlawful event, is sufficient to charge a defendant with such offense. See, e.g., State v. Vlahos, 138 Conn.App. 379, 385, 51 A.3d 1173 (2012); State v. Reed, 55 Conn.App. 170, 176-77, 740 A.2d 383, cert. denied, 251 Conn. 921, 742 A.2d 361 (1999). Here, the charging instrument at issue surpassed such minimum requirements, articulating each of the essential elements set forth in the statute. The defendant argues that the information failed to state an offense because it was not articulated in accordance with the definition of certain words and phrases that appear in the statutory provision under which he was charged. There is no support in the law for the defendant's argument that this more detailed type of information was required or that the state's practice in the present case was constitutionally deficient. Accordingly, we reject the defendant's jurisdictional challenge." State v. Alston, supra, 141 Conn.App. 720-33.
On June 26, 2012, the petitioner initiated the instant matter with the filing of his pro se petition for a writ of habeas corpus. At the time of trial, the petitioner was a self-represented litigant. The operative complaint at the time of trial was the aforementioned petition. In his petition, Mr. Alston, in asserting the constitutionally deficient performance of underlying counsel, makes the following claims:
1. That attorney Ovian " failed to file standard preliminary motions and/or if he did file such motions failed to adequately pursue said motions and failed to argue or sufficiently challenge the weight of the state's case in the best interest of justice"; 2. That attorney Ovian " failed to adequately conduct pretrial investigation surrounding the state charges before advising the petitioner to plead guilty"; 3. That attorney Ovian " provided factually and legally incorrect [advice] regarding the elements of the charges against the petitioner"; 4. and That attorney Ovian " failed to give petitioner real notice of the true nature of the charges against him."
The court heard the trial of this matter on April 19 and May 23, 2017. The petitioner called as witnesses Joseph Murphy (inmate), Darnell Walker (inmate), Capt. Robert Hartnett (Department of Corrections employee), and underlying counsel. The petitioner also entered several exhibits into evidence. The respondent called Inspector Kenneth Edwards, Jr. (Connecticut Division of Criminal Justice) as a witness and entered a number of exhibits. In lieu of the limits of closing argument, the court gave the parties the opportunity to file post-trial briefs. The respondent filed a post-trial brief. The petitioner did not file a post-trial brief.
II
LAW/DISCUSSION
Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
The Proceedings
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
Credibility
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the factfinder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
Habeas Corpus Matters-Generally
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
Ineffective Assistance of Counsel
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. at 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.' " Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. at 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. at 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. at 686.
Guilty Pleas
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.
" Although this decision [to plead guilty] 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." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.
A
Failure to File Motions
The petitioner asserts in his pleadings that counsel's failure to file " standard preliminary" motions was constitutionally deficient. He further asserts that counsel failed to argue or sufficiently challenge the weight of the state's case. This claim fails.
During his habeas trial testimony, underlying counsel testified credibly and thoroughly as to motions that could have been filed. Other than a motion to dismiss or a motion for a bill of particulars, the petitioner's overly broad and wholly inaccurate assertion does not specify what motions should have been filed and what expected result would have beneficial to the petitioner. Regarding the claim that underlying counsel was deficient in failing to file a motion to dismiss the charges, having reviewed the operative statute as well as the appellate history of the underlying matter, this court concurs with the analysis and conclusion of underlying counsel, as well as the Appellate Court, that there was no good faith basis upon which to challenge the particularity of the charging document or that the factual basis upon which the prosecution rested supported the essential elements of possession of a weapon or dangerous instrument in a correctional institution. The petitioner has also failed to refute the analysis or strategic decision of underlying counsel not to pursue the course of challenging the charge in the manner suggested by the petitioner.
Other than a motion to dismiss or for a bill of particulars, the petitioner has failed to present any evidence of what other motions should have been pursued by counsel, that there was a reasonable probability of successful rulings on those motions, or that their successful resolution would inure to the petitioner's benefit. Accordingly, the petitioner has failed to establish both deficient performance and prejudice.
B
Failure to Investigate
The Petitioner asserts that counsel was ineffective in failing to investigate the underlying charge prior to advising him to plead guilty. This claim, based on the credible evidence in the record, fails.
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when (s)he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Citations omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
The petitioner has failed to establish what additional benefit would have accrued to him by presenting the testimony of inmates Murphy and Walker. Both inmate witnesses testified that they would not have cooperated with any investigations at the time of the pendency of the underlying matter. Mr. Walker testified that he refused to cooperate with the public defender investigator. Mr. Walker was a witness without credibility in terms of the quality of his testimony and his manner of testifying. The notion that Mr. Murphy would have somehow corroborated the petitioner's version of events is not supported by any credible evidence in the record. The testimony of Mr. Murphy would have been devastating had the petitioner taken the matter to trial. Mr. Murphy's testimony alone may have been sufficient to obtain a conviction. The petitioner has failed to counter the assertion of underlying counsel that he possessed all necessary information to adequately advise the petitioner. It is also clear to the court that testimony from Captain Hartnett would not have been helpful to any asserted defense.
Finally, the petitioner's reliance on the notion that further investigation of certain administrative directives would have revealed a constitutional violation in the manner in which the petitioner was searched and the weapon/dangerous instrument was found is misplaced. The petitioner is incorrect and has failed to establish that relying on the noted administrative directives would have resulted in either a suppression of any evidence or a dismissal of the charge. Accordingly, the petitioner has failed to establish both deficient performance and prejudice.
C
Counsel's Advice re: Elements of the Offense
The record, including the court transcripts, as previously analyzed by the Appellate Court, clearly reveals that the petitioner understood the factual and legal bases of the charges. The record reflects that his understanding came from prior consultations with counsel, as well as the colloquy with the court. Accordingly, the petitioner has failed to demonstrate both deficient performance and prejudice.
D
" Real Notice"
Finally, the petitioner asserts, as he did on his direct appeal, that underlying counsel failed to give him " real notice" of the charges against him. The petitioner has failed to prove this claim. The court finds it clear on the face of the available record that the petitioner understood the essential elements of the offense charged and what the prosecuting authority would have to prove to secure a conviction at trial. It is equally clear, however, that the petitioner simply disagrees with what the law is. Conviction for the charged offense does not require that the weapon/dangerous instrument has to have been used to inflict injury, or used at all, to result in a conviction. Accordingly, this claim fails.
III
CONCLUSION
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.