Opinion
No. CV02-0821723
May 30, 2006
MEMORANDUM OF DECISION
The petitioner, William Faraday, alleges in Count One of his petition for a Writ of Habeas Corpus initially filed on December 13, 2002 and amended on January 6, 2006, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution as well as Article One, Section Eight of the Constitution of the state of Connecticut. Consequently the petitioner asserts that he should be allowed to withdraw his plea of guilty. For the reasons set forth more fully below, the court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
There is a Count Two to the petition that alleges the petitioner was denied his right to a speedy trial. Despite the allegations in the petition, there was no evidence, except for the petitioner's bald assertion that he was denied a speedy trial, that would permit any such finding. Indeed, the claim is all but abandoned since the petitioner declined the opportunity to submit a pretrial brief and argue the point. The petitioner pled guilty just under three years after being arrested on these charges. In that period, he was free on bond the entire period, had an initial trial on the charges that resulted in acquittal on most of the charges and a mistrial due to a hung jury on the remaining charges. This record clearly does not support any allegation of denial of a speedy trial and Count Two is summarily dismissed.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to advise him that he was pleading to a sex offense and would be required to undergo sex offender treatment as a condition of his probation. Part and parcel of this sex offender treatment includes a requirement that in order to continue with the court-ordered sex offender treatment, the petitioner must admit his guilt to the underlying offense. The petitioner now asserts that had he known he would have to so do, he would not have accepted a plea agreement to plead guilty. The petitioner argues that his trial defense counsel did not perform her duties to him in a professional manner by not explaining this to him such that his plea of guilty was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
See CGS § 53a-32a which provides that "If a defendant who entered a plea of nolo contendere or a guilty plea under the Alford doctrine to a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, and was ordered to undergo sexual offender treatment as a condition of rotation, becomes ineligible for such treatment because of such defendant's refusal to acknowledge that such defendant committed the act or acts charged, such defendant shall be deemed to be in violation of the conditions of such defendant's probation and be returned to court for proceedings in accordance with section 53a-32.
This matter came on for trial before this Court on April 19, 2006 and again on May 4, 2006. The petitioner, and his trial defense counsel, Attorney Paula Waite, testified at the trial. There were other pieces of documentary evidence, including the transcript of the petitioner's plea and sentencing. The Court has thoroughly reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal matter in the Judicial District of Hartford, in which he was charged with various sexual offenses alleged to have occurred in 1991 and 1992.
2. The petitioner was arrested on August 3, 1995.
3. At all times pertinent to this petition, the petitioner was represented by Attorney Paula Waite.
4. The initial trial on these charges resulted in his acquittal on two of the charges and a mistrial on the remaining two charges because the jury was unable to reach a unanimous verdict.
5. On July 31, 1998, in order to avoid a retrial, the petitioner agreed to plead guilty under the Alford doctrine to one count of Risk of Injury in violation of CGS § 53-21 and one count of sexual assault in the third degree in violation of CGS § 53a-72a. In exchange for his pleas, the petitioner was sentenced to twelve (12) years confinement, all of which was suspended for a five-year period of probation. There were two significant conditions of probation: (a) the petitioner was not to have any unsupervised contact with a child under the age of 16, and (b) the petitioner was to participate in sex offender treatment.
North Carolina v. Alford, 400 U.S. 25 (1970).
"At the time of the sentencing, the defendant was living with a woman, Eileen Kennedy, and her son. The son was not involved in the criminal events for which the defendant was charged and was two and one-half years old at the time the defendant was sentenced. By the time of the revocation hearing, the defendant had married Kennedy." State v. Faraday, 268 Conn. 174 at 178 (2004). It was also made a condition of the petitioner's probation that the supervisor could not be a person with whom the petitioner was romantically involved unless that person were approved by the probation department as a supervisor. Clearly this exception was carved out to permit the petitioner to interact with his future stepson.
6. Thereafter, on October 26, 1998, the petitioner was placed under the supervision of the Office of Adult Probation.
7. In October 1999, the petitioner was charged with having violated the terms of his probation by having unsupervised contact with his stepson, a minor child and by failing to participate in sex offender treatment.
8. On February 4, 2000, the petitioner was found to have violated both of the conditions of his probation and the Court, Wollenberg, J. ordered the sentence of twelve years confinement to be executed.
9. This finding of violation of probation was reversed by the Appellate Court, State v. Faraday, 69 Conn.App. 421 (2002), but subsequently reinstated by the Supreme Court, State v. Faraday, 268 Conn. 174 (2004).
10. Shortly thereafter, the petitioner commenced serving the twelve-year term of incarceration and has since remained in the custody of the Commissioner of Correction.
11. The Court will discuss additional facts as needed.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary pleas of guilty to these offenses. In essence, the petitioner asserts that his attorney was ineffective for not properly advising him that he would have to admit his involvement in the sex assault in order to continue with the sex offender treatment. He argues that this renders his guilty plea involuntary and that he is entitled to have the pleas set aside.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). The burden of proving a right to habeas relief rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." CT Page 10164 Summerville v. Warden, infra. at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his plea. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn.App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn.App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty [will be found] valid." Consiglio v. Warden, 160 Conn. 151. (1970). In the instant case, it is clear that the petitioner's plea is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. There has been nothing introduced into this habeas trial to even challenge the canvass by the trial judge who accepted his guilty plea. Consequently, his plea of guilty is found to be valid.
The key to the petitioner's position in this habeas action is his apparent belief that because he entered his plea under the Alford doctrine, this eliminates the necessity for him to admit his involvement in the sexual assault in order to participate in sex offender treatment as mandated by the sentencing court in its conditions of probation. This has already been conclusively resolved by the Connecticut Supreme Court in its decision in the petitioner's case:
"The defendant's contention fails because he misconstrues the import of a guilty plea under the Alford doctrine. In support of his contention, the defendant cites cases from other jurisdictions that have concluded that a defendant, who enters a guilty plea under the Alford doctrine, cannot be deemed to have violated his probation for a failure to admit guilt unless he specifically was informed during the plea canvass that such conduct was proscribed. See, e.g, People v. Walters, 164 Misc.2d 986, 988-89, 627 N.Y.S.2d 289 (1995); State v. Birchler, Ohio Court of Appeals, Docket No. 00AP-311 (October 5, 2000), 2000 Ohio App. Lexis 4622, *3. Those decisions, however, seem to be of the view that a guilty plea under the Alford doctrine carries greater constitutional significance than a standard guilty plea. Without belaboring the point, it suffices to say that we agree with those decisions that have held otherwise; see, e.g., People v. Birdsong, 958 P.2d 1124, 1127 (Colo. 1998); State v. Jones, 129 Idaho 471, 474, 926 P.2d 1318 (App. 1996); State v. Alston, 139 N.C.App. 787, 793, 534 S.E.2d 666 (2000); and we conclude that a guilty plea under the Alford doctrine does not carry any special significance in this area."
`Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.' (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 66-67 n. 2, 726 A.2d 520 (1999). The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty. By entering such a plea, a defendant may be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary. See, e.g., People v. Birdsong, supra, 958 P.2d 1130 ('[t]here is nothing inherent in an Alford plea that gives the defendant any rights, or promises any limitations, with respect to the punishment imposed after the conviction'); State v. Alston, supra, 139 N.C.App. 793 ( Alford plea not infused with any special promises)." See State v. Faraday, 268 Conn. 174 at 204-05 (2004).
"[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App. D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with numerous charges. Had he gone to trial on this matter and been convicted, he would have faced a significantly longer sentence. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970).
The ultimate decision as to how a criminal defendant pleads, guilty, not guilty or nolo contendre rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the fire of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel may well be providing ineffective representation.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Any claim of ineffective assistance of counsel must, of course, satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner mast first prove that the performance by his trial defense counsel was deficient by not properly advising him of the special conditions of his probation. Then, the petitioner must prove that, had he been given the proper advice that he would have pled not guilty, gone to trial and been acquitted of this offense.
In the case at bar, it is clear that the decision must turn upon the Court's resolution of the conflict in the testimony between that of the petitioner and the testimony of his counsel, Attorney Waite. The petitioner insists that Attorney Waite did not tell him he would have to admit his involvement in the sexual assault in order to complete sex offender treatment. Attorney Waite on the other hand is adamant that she did so advise him and that the petitioner was grateful for the opportunity to avoid prison and get on with his life. Their testimony is clearly at odds. This Court will resolve the conflict by finding the testimony of Attorney Waite to be the more credible.
In resolving this discrepancy, the Court looks first at the position of the respective witnesses. On the one hand is the petitioner who is incarcerated and would stand to potentially gain his freedom if his version of the events was believed. On the other is the Attorney for whom there is no benefit if the Court were to deny the petitioner's habeas. Second, the Court will examine the demeanor of the attorney and the petitioner during testimony. Attorney Waite was straight forward, concise and detailed in her responses regarding the policy of the Office of Adult Probation in the application of CGS § 53a-32a. She provided detailed analysis of her concern about that statute and a clear understanding of the requirements that a person who must undergo sex offender treatment must fulfill. Ms. Waite clearly and unequivocally testified that she explained all of the ramifications of what was required before her client pled guilty. On the other hand, the petitioner's habeas testimony was self-serving. Indeed there was a most telling incident in the habeas trial in which the petitioner was being questioned by the respondent's counsel and it was clear that the petitioner was not going to answer the counsel's question, but continued to dissemble to present his agenda. Consequently, this Court is satisfied that there was no deficient performance because Attorney Waite did fully advise the petitioner on the consequences of his plea and required sex offender treatment.
Arguably, the attorney who is alleged to have been ineffective in his or her representation could suffer some sort of damage to reputation or ego if a petition were to be granted, however, this is an intangible damage, if any, that is unlikely to encourage an officer of the court to commit the crime of perjury and risk imprisonment and disbarment for lying under oath.
"We are so used to dissembling with others that in time we come to deceive and dissemble with ourselves." Francois, Duc De La Rochefoucauld (1613-1680).
Moreover, it is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty or nolo contendre he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain, and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
Additionally, this Court will note that there was no evidence presented in the habeas case that would allow a finding that had the petitioner elected to plead not guilty and take his case to trial, he would have been found not guilty of the offenses to which he pled guilty. Consequently, the petitioner has failed in his burden to prove prejudice.
In this case, the petitioner has been found guilty through his own plea. He enjoyed the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. "Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." United States v. Timmreck, 441 U.S. 780 at 784 (1979). His failure to successfully complete the terms of his probation rests squarely and solely upon the shoulders of this petitioner alone. Consequently,
The petitioner attempts to make much over the fact that his plea was under the Alford doctrine. This is simply a distinction without a difference. As noted by our Supreme Court, the effects of a guilty plea under Alford, and a straight plea of guilty are the same. "Though silence is not necessarily an admission, it is not a denial, either." Marcus Tullius Cicero (106-43 B.C.), Roman orator, philosopher, statesman.
The Petition for a Writ of Habeas Corpus is denied.