Opinion
CV144005753S
11-30-2018
Pedro CARRASQUILLO #312515 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner makes two allegations: first, that trial counsel Diane Polan was ineffective for failing to properly advise him about whether he should accept or reject a plea agreement and further for failing to adequately cross examine witnesses at trial; and second, that his rejection of the plea agreement was not knowingly made and thus in violation of his due process rights. For the reasons set forth below, the petition is DENIED.
Attorney Polan passed away in 2016.
I. FACTUAL BACKGROUND
Pedro Carrasquillo was arrested and charged with, inter alia, murder in violation of General Statutes § 53a-54a. Because the defendant was fifteen years old at the time of the offense, his case was automatically transferred from the juvenile docket to the regular criminal docket. A jury found him guilty of murder, the court found him guilty of carrying a pistol without a permit and the trial court thereafter sentenced him to thirty-five years incarceration with a mandatory minimum prison term of twenty-five years. He appealed the murder conviction to our Supreme Court, alleging that the mandatory minimum sentence violated the cruel and unusual punishments clause of the eight amendment to the United States Constitution and that his right to a fair trial was violated when the state’s attorney, during closing argument, improperly attributed a motive to him that was unsupported by the evidence. Our Supreme Court affirmed the convictions. State v. Carrasquillo, 290 Conn. 209, 962 A.2d 772 (2009).
That decision summarizes the salient facts underlying his convictions as follows:
In the early evening of June 16, 2003, the victim, seventeen-year-old Chauncey Robinson, drove his car to the Moon Mart convenience store on Whalley Avenue in New Haven to purchase cigarettes and candy. Samuel Redd, who was shopping in a nearby shoe store, saw the victim get out of his car and go into the convenience store. Although Redd did not know the victim personally, it was his understanding that the victim had fired a gun in Redd’s neighborhood, which angered Redd.
When the victim exited the convenience store, Redd, who was wearing a red shirt, followed him to his car with the intent of starting a fight. The victim, however, was able to enter his car before Redd could catch up to him. When Redd reached the victim’s car, he kicked in the driver’s side window and then fled. As Redd started to run away, he noticed the defendant, with whom Redd was on friendly terms, walking across Whalley Avenue in the direction of the victim’s car. A few moments later, Redd heard gunshots.
At the same time that Redd was running from the victim’s car, thirteen-year-old L.C. was coming out of a restaurant located across the street from the victim’s parked car. He observed the defendant, whom he knew by name because they attended the same middle school, cross Whalley Avenue and head toward the victim’s car. Shortly thereafter, L.C. heard gunshots and started running toward his home. As he was running, he looked back and saw the defendant fire several shots into the front driver’s side window of the victim’s car.
When L.C. arrived home, he told his mother what he had seen, and she immediately telephoned the police. Ismail Nasser, the owner of the Moon Mart convenience store where the victim had purchased cigarettes and candy, also heard the gunshots and ran outside. When he arrived, he observed two people running away. One of them was wearing a red shirt and the other was carrying a gun in his hand. He also observed the victim, who had been shot, slouched in the front seat of his car.State v. Carrasquillo, supra, 290 Conn. 211-13. In his second amended petition filed on April 24, 2018, the petitioner alleged that Attorney Polan was ineffective in her representation during the pretrial and trial stages and also that his rejection of a plea offer was not knowingly made and, thus, violated due process. The respondent denied the allegations and raised defenses that the petition was barred by the doctrine of laches and count two failed to state a claim.
II. FINDINGS OF FACT
The petitioner was fifteen at the time of his arrest. At all times relevant to the petition he was represented by Attorney Diane Polan, who passed away in 2016. Because of his age, his mother and his step-father were appointed as guardians ad litem at various times during the proceedings. He was offered a deal which would have required him to plead guilty to murder in exchange for a sentence of twenty-five years to serve. He rejected that offer and proceeded to trial. He was convicted and eventually appealed his convictions, which were affirmed by our Supreme Court.
Plea Bargaining. In June 2004, Attorney Polan informed the petitioner of the plea offer in a letter. The court, Fasano, J., indicated it would impose a sentence of twenty-five years to serve. State’s Attorney Michael Dearington conveyed the court’s intention to the victim’s family and his opinion that the offer was not unreasonable. The victim’s father was not happy with the offer and Attorney Dearington offered him the opportunity to voice his displeasure on the record.
The petitioner discussed the offer at-length with Attorney Polan, who requested several continuances from June 15, 2004, when the offer was extended, to November 4, 2004, when the offer was rejected, in order to allow the petitioner time to consider the offer. During their discussions considering the offer, they discussed the state’s evidence, which included witness statements and warrant affidavits, the pros and cons of going to trial, the weaknesses of the state’s case and defenses they could pursue. Attorney Polan informed him that murder carried a mandatory minimum sentence of twenty-five years. The petitioner was aware that murder was the most serious charge in Connecticut and that it carried a significant penalty. Attorney Polan advised him, however, that if he went to trial and lost, he could expect a sentence in the range of twenty-five to thirty-five years’ incarceration.
Attorney Polan advised him to make his decision based on how he felt "because at the end of the day, [he] was going to be the one serving the time or going to trial and going home, that not to listen to nobody because it was not their decision to make." She told him that while it was good to "take people’s opinions and ponder them," the final decision was his to make. She estimated the odds of winning after trial as "50/50." Neither his mother nor his step-father provided any input about whether he should accept or reject the offer. The petitioner decided to reject the offer and go to trial based on the inconsistencies of witness statements. This decision was bolstered by the existence of a witness, a Nathaniel Grayson, who had given a statement to the police indicating that the individual who kicked in the decedent’s car window was the one who shot him. This decision was made after a consideration of the terms of the offer, the evidence against him, the odds of success at trial and the potential sentence he might receive if he lost that trial. There is no dispute that had the petitioner accepted the offer, Judge Fasano would have accepted his plea and sentenced him in accordance with that offer, despite the victim’s father’s opposition to it.
The petitioner also testified as to the existence of a second offer, made during jury deliberation. He testified that he was brought into an ante room in the courtroom, where Attorney Polan told him that the state was inquiring whether he’d plead to the twenty-five years. His mother was present during this meeting but did not offer any advice. He told Attorney Polan that he would not accept this offer and she did not pursue it at length because she already knew that he was not going to take this offer.
Attorney Dearington testified that there was no second offer and it was not reflected in his file. Respondent’s Exhibit A. It was his practice to make notes of all offers and something as significant as an offer to resolve the case mid-trial would have been noted.
Attorney Polan, of course, was not available to testify. The petitioner also did not call his mother or his step-father to testify.
Consultation with a medical professional. The petitioner testified that Attorney Polan did not suggest to him that she would like to have him evaluated to determine if he was capable of making an informed decision, given his young age. Attorney Polan did, however, file several motions to have the matters dismissed or returned to the juvenile court. Petitioner’s Exhibit 9 ("P. Ex.__") details Attorney Polan’s challenge to the petitioner’s prosecution in adult court and his exposure to the mandatory minimum sentence as being in violation of the eighth amendment. in that memorandum, she relied on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Roper was released after the completion of jury selection in the petitioner’s case, but before the start of evidence. P. Ex. 9 makes clear that Attorney Polan was well-versed in the latest scientific literature on the topic of the immaturity of the juvenile brain and the diminished responsibility of juvenile offenders in light of that level of development. Further, as evidenced by the arguments at sentencing, Attorney Polan hired a psychiatrist who met with and evaluated the petitioner on three occasions. State v. Carrasquillo, supra, 290 Conn. 215. The trial court explicitly relied on the arguments of Attorney Polan in determining the appropriate sentence, mitigating the punishment based on his age. Id., 216. It is worth noting that the petitioner was sentenced to thirty-five years to serve; that the trial court ran the five-year sentence for carrying a pistol without a permit concurrently, and; that the thirty-five-year sentence was the upper range of what Attorney Polan advised the petitioner he would receive if he lost the trial.
At the habeas trial, the petitioner did not present any testimony from a medical professional about the petitioner’s ability to understand the consequences of rejecting a plea offer and going to trial at the time he did so, nor did the petitioner present any testimony about how Attorney Polan should have advised him differently, beyond stating that if she had told him murder carried a maximum penalty of sixty years and if she had "discussed this more at length," he might have made a different decision.
Examination of witnesses. At the underlying criminal trial, L.C. testified that he saw the petitioner go toward the car the victim was seated in and saw the petitioner fire into the car. On cross examination, he testified that there was no one else near the car and he didn’t see anyone kick in the window of the car. He testified that he first heard the shots and then looked in the direction of the sound to see the petitioner fire the gun. On re-cross, he testified that when he first saw the petitioner, the petitioner’s back was to him, but he knew that it was the petitioner. He was also examined about his distance from the petitioner when he did observe the petitioner’s face and objects that were in his line of sight. He was also questioned at length about potential motives to help the prosecution.
Because this witness was a juvenile at the time of the incident and the underlying criminal trial, the court will refer to him using his initials.
Samuel Redd testified at the underlying criminal trial that he saw the deceased on the day of the incident and intended to fight him. However, because the deceased got into his car before Redd could do so, Redd instead kicked the window of the deceased’s car, causing it to come out. Redd then started running away and as he was doing so, passed the petitioner who was crossing the street toward the car. He testified that the petitioner was wearing a gray hoodie and that he was wearing red. He then heard shots but did not turn around to look behind him. He testified that he did not see anything in the petitioner’s hands but that he told police he did because he felt pressured to do so. On cross examination, Redd testified that he had "bad feelings" about the deceased because he had heard that the deceased was shooting in his neighborhood. He was examined at length about his intention to fight and assault the decedent that day. He further testified on cross that once he heard the shots he didn’t turn around to look. He said that he turned the corner and from where he was, he couldn’t see the scene. He was cross examined about his statement to the police in which he identified the petitioner as having a gun and he admitted that he had stated that in response to pressure from the police. Finally, the fact that he was not charged in connection with the murder was also presented to the jury.
At the underlying criminal trial, Gregory Wilborne testified that he was on Whalley Avenue at the time of the shooting and observed seven to eight kids. He then heard three or four "firecrackers" and saw a "bunch of kids" running. He saw one of them tucking a gun down his shirt and described that individual as wearing a white t-shirt and dark colored jeans. Wilborne described him as a light skinned male with curly hair and said that the shooter jumped into a gray Honda Civic. On cross examination, he reiterated his description of the clothing of the shooter but could not describe anyone else because he was focused on the weapon.
Attorney Polan called Nathaniel Grayson to testify at the underlying criminal trial. He had given police a statement in which he said that he had observed one individual kick in the window of the car and then that same individual shot four or five times into the car. At trial, he testified that he was not sure whether one person or two kicked in the window and he wasn’t sure if it was the same person who then fired the shots. He also could not recall what any of the people on the scene were wearing. The petitioner did not call L.C., Redd or Wilborne to testify at the habeas trial.
III. RESPONDENT’S DEFENSES
The respondent raises two defenses: 1) that the petitioner’s claim is barred by the doctrine of laches and, 2) that count two fails to state a claim upon which relief can be granted. The court rejects both defenses.
Doctrine of Laches. "The defense of laches, if proven, bars a plaintiff from seeking equitable relief ... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ... The burden is on the party alleging laches to establish that defense. Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). The mere lapse of time does not constitute laches ... unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question ... Fromm v. Fromm, 108 Conn.App. 376, 385-86, 948 A.2d 328 (2008)." (Internal quotation marks omitted.) Caminis v. Troy, 112 Conn.App. 546, 552, 963 A.2d 701 (2009), aff’d on other grounds, 300 Conn. 297, 12 A.3d 984 (2011).
However, the use of laches as a defense to habeas corpus claims is an issue that has not yet been fully addressed and developed on the merits. See, e.g., Dickinson v. Mullaney, 92 Conn.App. 689, 693, 887 A.2d 390 (2005) (reversing judgment of the habeas court and remanding for further proceedings), rev’d, 284 Conn. 673, 677-78, 937 A.2d 667 (2007) (reversed on grounds that Appellate Court should not have reached merits of laches claim because there was an inadequate record presented for review, and specifically refusing to address question of whether laches applies in habeas corpus).
Here, the respondent claims that the petition is barred by laches because there has been a nine year delay and trial counsel has passed away. The petitioner’s convictions became final on direct appeal in January 2009. He initiated the instant proceeding by filing a petition for writ of habeas corpus on September 27, 2013. Trial counsel was alive at the time. A trial was scheduled in this matter for June 9, 2016. With consent of opposing counsel, the petitioner sought a modification of that trial date because there were several pending cases before our Supreme Court that addressed the claims raised by the petitioner. The habeas court, Oliver, J., granted that request. The matter was then tried before this court on September 11, 2018.
Assuming that laches applies in habeas corpus proceedings, this court finds that the respondent has not met the burden of proof with regards to the defense. While there is no known explanation for the delay from 2009 to 2013, trial counsel was available at the time of the filing of the petition and subsequently until sometime in 2016. The matter was continued for the purposes of judicial efficiency in 2016, and tried thereafter in 2018.
Failure to State a Claim. The respondent also alleges that count two fails to state a claim upon which relief can be granted. The respondent argues that there is no constitutional right to plead guilty, and thus, there is no requirement that the rejection of a guilty plea be knowing and voluntary. The court is not persuaded. While challenges to the rejection of plea offers are ordinarily couched in terms of the performance of counsel, an allegation that the rejection of the plea was not knowingly made because of the deficient performance of trial counsel is simply another way of saying the same thing. This claim is intricately tied in with the petitioner’s claim in count one. A defendant’s choice to accept or reject a plea is considered to be knowing and voluntary because it is premised on sound advice given by competent counsel. Duncan v. Commissioner of Correction, 171 Conn.App. 635, 669, 157 A.3d 1169 ("In a situation such as this, where the petitioner’s claim of a violation of due process is so inextricably bound up in the issue of the effectiveness of his trial counsel, we conclude that a separate claim of a violation of the right to due process is not required" [internal quotation marks omitted]), cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017). That count two may be superfluous does not render it one for which the court cannot grant relief.
IV. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair"; (internal quotation marks omitted) Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[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, 686.
Two-part test. To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland. Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Internal quotation marks and citations omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
Performance Prong. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31 (quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
Prejudice Prong. When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 694-95).
However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 693-94). The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 466 U.S. 696.
I. Failure to Adequately Examine Witnesses
In his amended petition, the petitioner makes non-specific claims that Attorney Polan did not adequately cross examine the state’s witnesses and examine defense witnesses. At the habeas trial, the petitioner clarified those allegations through his testimony. He testified that Attorney Polan did not make sufficiently clear that L.C. would only have seen the back of the shooter and not his face. This is belied by L.C.’s testimony during the criminal trial. During cross examination, Attorney Polan elicited testimony that when L.C. first saw the petitioner, the petitioner’s back was to him, but he knew that it was the petitioner. L.C. was also examined about his distance from the petitioner when he did observe the petitioner’s face and objects that were in his line of sight. He was also questioned at length about potential motives to help the prosecution. Thus, Attorney Polan appropriately cross examined L.C., including inquiring into the area that the petitioner complains she failed to examine. The court cannot find any fault with Attorney Polan’s cross examination of L.C.
Next, the petitioner clarified that Attorney Polan did not make sufficiently clear that Samuel Redd would have been unable to see the petitioner at the scene at the time of the shooting because he had turned a corner around a building and thus, his view was obstructed. Attorney Polan’s cross examination of Redd was extensive and appropriate. She brought out that he had "bad feelings" about the deceased because Redd had heard that the deceased was shooting in his neighborhood. She examined him at length about his intention to fight and assault the decedent that day. He further testified on cross that once he heard the shots he didn’t turn around to look. He said that he turned the corner and from where he was, he couldn’t see the scene. He was cross examined about his statement to the police in which he identified the petitioner as having a gun and he admitted that he had stated that in response to pressure from the police. Finally, the fact that he was not charged in connection with the murder was also presented to the jury. The court cannot find any fault with Attorney Polan’s cross examination of Redd.
Finally, he put at issue Attorney Polan’s questioning of Gregory Wilborne, who identified the participants at the scene based on their clothing and described the shooter as wearing clothing that was inconsistent with what the petitioner was alleged to have worn. According to the petitioner, she did not make, this fact sufficiently clear. As noted above, at the underlying criminal trial, Wilborne testified that he was on Whalley Avenue at the time of the shooting and observed seven to eight kids. After hearing shots he saw a "bunch of kids" running. One of them was tucking a gun down his shirt and Wilborne described that individual as wearing a white t-shirt and dark colored jeans. Wilborne described him as a light skinned male with curly hair and said that the shooter jumped into a gray Honda Civic. On cross examination, he reiterated his description of the clothing of the shooter but could not describe anyone else because he was focused on the weapon. Thus, the jury was clearly made aware of the description of the shooter’s clothing given by Wilborne. The court cannot find any fault with Attorney Polan’s cross examination of Wilborne.
As previously noted, the petitioner did not call L.C., Redd or Wilborne to testify at the habeas trial. A review of the trial transcript reveals that Attorney Polan’s cross examination of the state’s witnesses highlighted all their inconsistencies and made clear the defense’s theory of the case. Most, if not all, of the areas of deficiency complained of by the petitioner were addressed by Attorney Polan in her cross examination of witnesses and her closing argument to the jury. "An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy." Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010); State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff’d, 261 Conn. 420, 802 A.2d 844 (2002). It is important to note that "[t]he fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." Velasco v. Commissioner of Correction, supra, 172.
The petitioner’s attempt to meet his burden of proof is also hampered by his failure to present the testimony of either L.C., Redd or Wilborne. Without their testimony, the court is left to speculate as to how Attorney Polan might have cross examined them further and whether that cross examination would have resulted in testimony that would have altered the outcome of the trial. "The petitioner bears the burden of showing that [counsel’s] actions fell below an objective standard of reasonableness. See Williams v. Commissioner of Correction, 142 Conn.App. 744, 752, 68 A.3d 111 (2013)." Smith v. Commissioner of Correction, 148 Conn.App. 517, 527, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91 A.3d 908 (2014). In order to meet his burden of proof, the petitioner must present evidence to this court that supports his allegations. See Henderson v. Commissioner of Correction, 129 Conn.App. 188, 194-95, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); Townsend v. Commissioner of Correction, 116 Conn.App. 663, 668, 975 A.2d 1282, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Andrews v. Commissioner of Correction, 45 Conn.App. 242, 247-48, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997). Faced with this lack of evidence, this court cannot conclude that the petitioner’s conviction is "unreliable because of a breakdown in the adversarial process." Strickland v. Washington, supra, 466 U.S. 696.
Finally, the petitioner makes little mention of any deficiencies in Attorney Polan’s questioning of Grayson and does not explain how counsel "failed to adequately question [d]efense witnesses to rebut the testimony of the witnesses provided by the state, and otherwise rebut the state’s case." Second Amended Petition, p. 3 ("Am. Pet.__"). This claim must fail. Because counsel’s performance is afforded a wide degree of deference, a petitioner’s vague and conclusory allegations of ineffectiveness are insufficient to provide relief. Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991); cf. State v. Anthony D., 320 Conn. 842, 854, 134 A.3d 219 (2016) (holding that a trial court is not required to conduct an evidentiary hearing on a motion to withdraw a guilty plea where the defendant has not provided specific allegations of ineffective assistance of counsel).
For all the foregoing reasons, the court concludes that Attorney Polan’s performance at trial was not deficient and further that the petitioner has not proven prejudice.
2. Failure to Adequately Advise
Ineffective Assistance in the Plea Bargaining Context. It is now beyond dispute that the vast majority of criminal cases are disposed of via a plea bargain. Pretrial negotiations implicating the decision of whether to plead guilty are a critical stage in criminal proceedings and "plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995), overruled on other grounds, Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (2015). The decision to plead guilty is "ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). Although the decision to plead guilty is the defendant’s to make, counsel "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." Copas v. Commissioner of Correction, supra, 154; Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981). "It is well-settled that defense counsel have a constitutional duty to convey any plea offers from the government and to advise their clients on the crucial decision whether to accept a plea offer." (Citation omitted; internal quotation marks omitted.) Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013); Barlow v. Commissioner of Correction, 150 Conn.App. 781, 797, 93 A.3d 165 (2014). It is the duty of a criminal defense lawyer to fully advise his client whether pleading guilty "appears to be desirable"; Boria v. Keane, supra, 496; Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011); and "determine which alternative will offer the defendant the most favorable outcome." Copas v. Commissioner of Correction, supra, 154. Thus, the effective assistance of counsel includes counsel’s informed opinion as to what pleas should enter. Boria v. Keane, supra, 497.
While counsel is required to give his client professional advice, there is no per se requirement that counsel must recommend whether to accept or reject a plea. Purdy v. United States, 208 F.3d 41, 48 (2d Cir. 2000); Barlow v. Commissioner of Correction, supra, ISO Conn.App. 794. Further, counsel must take care not to coerce a client into accepting or rejecting an offer. Vazquez v. Commissioner of Correction, supra, 123 Conn.App. 438. A defendant’s decision to plead or not "should be made by a represented defendant with the adequate professional assistance, advice, and input of his or her counsel." (Emphasis omitted.) Barlow v. Commissioner of Correction, supra, 799-801. Counsel’s advice must be based on "the facts of the particular case and the potential total sentence exposure." Id., 799-801. This advice should include the terms of the plea offer, the strengths and weaknesses of the state’s case and the alternative sentences to which the defendant will most likely be exposed. Purdy v. United States, supra, 208 F.3d 45; Vazquez v. Commissioner of Correction, supra, 438. Counsel "may take into account the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether the defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision." Purdy v. United States, supra, 45. For instance, a significant disparity between the sentence the defendant might have received had he accepted the state’s offer, and the sentence he actually received after trial, is evidence that he was prejudiced by his attorney’s failure to adequately inform him of his plea options. Cardoza v. Rock, supra, 731 F.3d 178-79. The reasonableness of counsel’s advice will depend on the circumstances of each individual case. Barlow, supra, 795.
In Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court held that, to satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, a habeas petitioner "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." Id., 164; Ebron v. Commissioner of Correction, 307 Conn. 342, 352, 53 A.3d 983 (2012), cert. denied sub nom., Arnone v. Ebron, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013). "To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Mahon v. Commissioner of Correction, 157 Conn.App. 246, 254, 116 A.3d 33 1, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).
In Connecticut, in order to prove prejudice, a petitioner "need establish only that (1) it is reasonably probable that, if not for counsel’s deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court." Ebron v. Commissioner of Correction, supra, 307 Conn. 357.
Here, Attorney Polan adequately advised the petitioner in order to assist him in making the decision to plead guilty or not. She requested continuances for a period of four to five months to give the petitioner time to consider the offer. She wrote him a letter laying out the offer and discussed the pros and cons of pleading with him. In fulfilling her constitutional obligations, she made him aware of the mandatory minimum sentence, the witness statements, warrant affidavits and the strengths and weaknesses of the state’s case. She even estimated their chance of success as "50/50." She further guessed that if he lost after trial, he would get no more than thirty-five years to serve, which is exactly what he was sentenced to. To the extent that the petitioner’s claim is that Attorney Polan did not specifically recommend that he accept the offer, the court finds that there is no requirement that counsel have to tell their clients what the client’s decision should be. While counsel’s duty is to provide an informed opinion as to what pleas should enter, the reasonableness of counsel’s advice is to be examined in the context in which it was given, under the circumstances of the case. Here, there is no doubt that Attorney Polan had extensive discussions with the petitioner about the strengths and weaknesses of the case, expressed her belief as to the likelihood of success after trial and told him that, in the end, it was his choice to make.
There is also evidence before the court which would suggest that Attorney Polan did, in fact, recommend that the petitioner plead guilty. At the petitioner’s sentencing, Attorney Polan presented the testimony of Karen Brody, a psychiatrist who had examined the petitioner. During questioning by Attorney Polan, she testified that it was her finding that the petitioner lacked judgment. The petitioner told her that it was that lack of judgment that "caused him to go to trial as opposed to accepting the advice of counsel and perhaps taking a plea." P. Ex. 10. The court cannot find any fault with Attorney Polan’s representation in this regard.
Petitioner’s Exhibit 10 is the sentencing transcript. It is a two-sided, unpaginated document. The quote is found near the bottom of the fifth page of Dr. Brody’s testimony to the court, which would be numbered page 9 if the cover page were included in the pagination.
Further, the petitioner’s testimony establishes that he chose to reject the offer not because of Attorney Polan’s deficient performance, but because he believed that the state’s case was weak and that there was a likelihood of prevailing at trial. He testified on cross examination that the inconsistencies in the witness testimonies and the existence of Grayson as a defense witness were factors in rejecting the offer.
Finally, the petitioner has not met his burden of proof as to the allegation that had Attorney Polan hired a medical professional to convey the offer to him in terms that he would understand, he would have accepted the offer. Our jurisprudence now accepts that there are significant differences between the culpability of juveniles and adults, Graham v. Florida, 560 U.S. 48, 68, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and their psychological development. Generally speaking, there are three significant gaps between juveniles and adults. "First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking ... Second, children are more vulnerable ... to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings ... And third, a child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity]." (Citations omitted; internal quotations marks omitted.) Miller v. Alabama, 567 U.S. 460, 471, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); State v. Riley, 315 Conn. 637, 650, 110 A.3d 1205 (2015); see also Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
Thus, the petitioner argues that Attorney Polan should have taken into account his lack of psychological development and other relevant traits when conveying the offer to him. The only evidence of this before this court is the petitioner’s testimony that had Attorney Polan hired such a professional, it might have made a difference. That is nothing more than the bare allegation. The petitioner has not provided any evidence of how Attorney Polan should have communicated the offer to him and has not provided any testimony from any medical professional about the appropriate way to convey an offer to a teenager or an expert to opine on whether the manner in which Attorney Polan conveyed the offer to the petitioner was medically and legally deficient.
The petitioner also alleges in his posttrial brief that Attorney Polan’s advice was deficient because "he did not consider how much of impact [the inconsistencies in witness statements] would have on the jury. Nor did he know which defendants [sic] would testify at trial or what they would say and whether it would mirror their statement to the police or credibly depart from it." Petitioner’s Post-trial Brief, p. 18. Thus, he seeks to lay blame at the feet of Attorney Polan for not accurately predicting the future testimony of witnesses, how consistent or inconsistent they would be with each other and with their statements to police and how the jury might receive these possible future inconsistencies. He appears to be arguing that had she accurately predicted the extent to which these inconsistencies were going to occur and what impact that would have had on the jury, his decision to reject the offer might have been different. Even if Attorney Polan can be faulted for not accurately predicting any inconsistent testimony, the court finds no basis from which to conclude that her advice to the petitioner was deficient. Based on the information available to her at the time the petitioner made his decision to reject the offer, she adequately and appropriately advised the petitioner.
Assuming, without deciding, that a second offer was extended to the petitioner, the court again finds no deficient performance on the part of Attorney Polan and further finds that the petitioner has not proven that, were he advised adequately, he would have accepted the offer. He testified that the second offer was made during jury deliberation and Attorney Polan conveyed it to him and he "just refused." He testified that "it wasn’t really that long of a conversation" because he wasn’t going to take twenty-five years. He further testified that Attorney Polan already knew what his answer was going to be based on prior discussions about his willingness to plead guilty. Thus, it is clear to the court that at the time this second offer was made, the petitioner would not have accepted it.
B. REJECTION OF PLEA OFFER VIOLATED DUE PROCESS
The petitioner alleges in count two of the amended petition that his rejection of the plea violates due process because his decision to reject the offer was not knowing "because he lacked the capacity to [fully] understand all aspects of the plea agreement as presented to him and lacked the capacity to fully understand the consequences of his decision." Am. Pet. p. 4.
Ordinarily, a due process claim is alleged when the petitioner seeks to challenge the validity of his plea of guilty. "[D]ue process requires that a plea be entered voluntarily and intelligently ... 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 ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." (Internal quotation marks omitted.) White v. Commissioner of Correction, 182 Conn.App. 188, 194, 189 A.3d 171, cert. denied, 330 Conn. 904, 192 A.3d 425 (2018).
The court is unaware of any bar to considering whether the rejection of a plea is knowing. Indeed, other courts in Connecticut have concluded that a petitioner’s rejection of a plea agreement was knowing, intelligent and voluntary. Berger v. Warden, Superior Court, Docket No. CV-98-416581-S (December 6, 2001), aff’d sub nom. Berger v. Commissioner of Correction, 74 Conn.App. 489, 812 A.2d 167 (2003); Ortiz v. Warden, Superior Court, Docket No. CV-921571-S (January 3, 1997).
However, as noted above, Section III supra, this claim is inextricably interwoven with the petitioner’s claim of ineffective assistance of counsel. Cf. Kirkpatrick v. Whitley, United States District Court, Docket No. 91-0502 (E.D.La. May 29, 1991) ("[A] decision to refuse a plea bargain offer simpliciter waives no constitutional or other rights, and is not reviewable in a § 2254 petition separately from a determination of counsel’s effectiveness"), vacated, 992 F.2d 491 (5th Cir. 1993). Any infirmity in the petitioner’s rejection of a plea offer will necessarily be dependent on the deficient performance of his attorney. If counsel has adequately and properly advised a defendant about his options and the defendant makes an informed decision to take or reject an offer, then that decision is necessarily knowing, intelligent and voluntary. If counsel fails to do so, then it can be said that the plea or rejection thereof was not an intelligent decision made by the defendant upon consideration of all the relevant and materials facts and circumstances.
Thus, this claim is also rejected for the reasons the court rejects the petitioner’s allegations of ineffective assistance of trial counsel.
V. CONCLUSION
There is no doubt that the petitioner was a very young man when he was accused of and ultimately convicted of murder. The science of the development of the adolescent brain is now widely accepted in our courts. The unique characteristics of juveniles and scientific evidence regarding differences between adult and juvenile psychological development demonstrate that a juvenile’s less developed character, maturity and impulse control affect decision making and appreciation of risk, and that a juvenile’s poor decisions do not necessarily portend how the offender might act upon achieving maturation. Roper v. Simmons, supra, 543 U.S. 575; State v. Riley, supra, 315 Conn. 646. While the court is mindful of the fact that a sentence of twenty-five years to serve could appear to be the equivalent of a life sentence to a fifteen year old, that alone does not render trial counsel’s performance deficient or the petitioner’s decision to reject a plea involuntary.
There cannot be a per se rule that every juvenile is, by law, unable to adequately understand counsel’s advice and make a knowing, voluntary and intelligent decision to accept or reject a plea offer or that every lawyer representing a juvenile must use certain terms and language to explain the criminal justice system to their client. There will, of course, be cases in which there is such a disconnect between the client’s ability to understand the significance of the proceedings and their options and the manner in which the lawyer conveyed their professional advice that it would cause a reviewing court to lose confidence in the verdict. This determination, however, must be made on a case-by-case basis and in this case, such a disconnect has not been proven.
The petition must be denied because the petitioner has not met his burden of proof for the allegations contained in the amended petition. For all the foregoing reasons, the petition for writ of habeas corpus is denied. Judgment will enter for the respondent.