Opinion
No. CV04-0004548 S
January 13, 2006
MEMORANDUM OF DECISION
On May 11, 2004, the petitioner filed a petition for a writ of habeas corpus, which was amended on November 28, 2005. The amended petition, which "adopts [the] pro se petitions for writ of habeas corpus and supplements same as follows," raises claims in two counts: first, that the petitioner was denied the effective assistance of trial counsel; and second, that the respondent has incorrectly calculated the petitioner's discharge date. The respondent's return denies these claims.
The petitioner subsequently filed in this judicial district another habeas corpus petition raising claims substantially identical to the instant claims. That subsequent petition was assigned docket number CVO5-4000477. On October 17, 2005, this court granted petitioner's motions to consolidate the two matters. The instant matter remained as the controlling docket after consolidation.
The matter came before this court for a trial on the merits on December 15 and 19, 2005, at which time the court received into evidence the plea and sentencing transcripts, relevant informations and mittimi, timesheets maintained by the respondent, as well as testimony from the petitioner, Department of Correction Record Specialist Ms. Mary Jane Steele and petitioner's trial counsel, Attorney Wayne Keeney. From the foregoing and the facts pleaded in the amended petition and admitted to by the respondent, the court makes the following findings of fact.
FINDINGS OF FACT
1. A judgment mittimus shows that on April 12, 1999, the petitioner was sentenced in docket number CR93-085373 as a result of a violation of probation, in violation of C.G.S. § 53a-32. The mittimus indicates that the petitioner was "to serve [the] remainder of [the] sentence (10 years E/S/A 4 years; 5 yrs. probation 9/6/94)." Resp't Ex. A, at 1. As clarified by Ms. Steele's testimony at the habeas corpus proceeding, this remainder was six years.
2. A judgment mittimus shows that on October 6, 1999, the petitioner was sentenced in docket number CR99-153366 to a term of six months to serve, consecutive to any present sentence, for one count of contempt of court, in violation of C.G.S. § 51-33.
3. The remainder (i.e., six years) imposed on April 12, 1999 in docket number CR93-085373 was such a present sentence.
4. The petitioner was the defendant in the Superior Court, G.A. #2 at Bridgeport, in the Judicial District of Fairfield, in the following docket numbers: CR99-0155008, CR98-0144869 and CR98-0144870.
5. On May 25, 2000, the petitioner entered guilty pleas in the aforementioned dockets. The canvassing court (B. Kaplan, J.) thoroughly canvassed the petitioner and found that the pleas were knowingly and voluntarily made with the assistance of competent counsel.
6. The plea agreement resulting in the May 25, 2000 sentencing did not encompass a specific length of sentence; that is, the sentencing court could impose up to the maximum permitted by statute. The canvassing court specifically questioned the petitioner as to his understanding of the potential maximum sentence he faced as a result of this plea agreement: three years consecutive to any sentence the petitioner was then serving. In response to the canvassing court's inquiry if ". . . anyone promised [him] anything other than a maximum penalty of up to three years in addition to what you're serving and nolleing (sic) the other counts to make you plead guilty today?," the petitioner responded "No." Pet'r Ex. 1, at 5.
7. After the change of plea on May 25, 2000, the petitioner went before the sentencing court (McKeever, J). In docket number CR99-0155008, the petitioner was sentenced on one count of assault in the third degree, in violation of C.G.S. § 53a-61, to one year to serve, concurrent with the combined docket numbers CR99-0144869 and CR99-0144870, but consecutive to any present sentence. In the combined docket numbers CR99-0144869 and CR99-0144870, the petitioner was sentenced to one year to serve, to be served concurrently, for two counts of interfering with an officer, in violation of C.G.S. § 53a-167a.
8. Timesheets maintained by the respondent show that the respondent has established petitioner's discharge date from dockets CR99155008 and CR99-153366, for an eighteen-month sentence on those two dockets, as July 29, 2006. Pet'r Ex. 4.
DISCUSSION
The petitioner in the instant matter has through his consolidated pro se petitions, as supplemented by the amended petition, raised more than a plethora of claims. Most of the pro se claims were either not addressed at trial or there was no evidence presented in support of them. Consequently, the court will deem these claims as abandoned and only address the two counts in the amended petition.
In Grimm v. Grimm, 276 Conn. 377, 381 n. 4 (2005), the Supreme Court referred to the five claims raised on appeal as constituting a plethora. The instant petitioner has, for lack of an appropriately descriptive superlative, raised more than a plethora of claims via his consolidated pro se petitions, as supplemented by the amended petition.
"To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must establish both `(1) deficient performance, and (2) actual prejudice . . . Thus, he must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, [ 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioners claim if he fails to meet either prong.' (Citations omitted; internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court applied the two-pronged test set forth in Strickland to guilty plea negotiations, focusing on the application of the second prong requiring prejudice to be shown. `The second, or `prejudice,' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 205-06, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004).
The petitioner testified that he believed the one-year and six-month consecutive sentences would run concurrent with each other. Aside from this testimony, however, there is no indication in the transcripts, informations or judgment mittimi that the plea agreement entailed the two consecutive sentences to run concurrently, nor do the resultant sentences as imposed reflect any such intent, Attorney Keeney testified that he understood the one-year sentence to run consecutive to the 6 1/2 years the petitioner had already been sentenced to prior to May 25, 2000. Attorney Keeney additionally testified that he discussed the May 25, 2000 sentences with the petitioner, and that the petitioner was anxious to resolve the pending matters and be sentenced. There was no other evidence presented bearing on the issue of counsel's performance in the underlying matter.
The petitioner here has clearly failed to show either of the Strickland/Hill prongs. He has neither affirmatively proven deficient performance by Attorney Keeney, nor has he shown that he would not have pleaded guilty and insisted on going to trial. Consequently, the claim of ineffective assistance of counsel is wholly without merit and must be denied.
As to the claim that the respondent has incorrectly calculated the petitioner's discharge date, the question essentially becomes what does "present sentence" mean. At the time the petitioner was sentenced on May 25, 2000, the petitioner had already been sentenced to a six-year sentence and a six-month sentence, to run consecutively, for a total effective sentence of 6 1/2 years to serve. Thus, the additional one-year consecutive sentence imposed on May 25, 2000, ordered to run consecutive to the petitioner's present sentence, results in a total effective sentence of 7 1/2 years to serve.
In the absence of any support in the underlying record, as well as the testimony by the petitioner's defense counsel, this court cannot conclude that the one-year consecutive sentence imposed May 25, 2000 was to run consecutive to the six-year sentence and concurrent with the six-month consecutive sentence. The petitioner's claim that the respondent has incorrectly calculated the petitioner's discharge date is, therefore, also denied.
Accordingly, the petition for a writ of habeas corpus is denied.