Opinion
No. CV 04 0004387S
February 8, 2006
MEMORANDUM OF DECISION
The petitioner, Joseph Hill, alleges in his petition for a Writ of Habeas Corpus initially filed on December 29, 2003, and amended for a third time on July 15, 2005, that he was denied the effective assistance of counsel at the trial level in violation of the sixth and fourteen amendments of the United States constitution. He, therefore, asserts that with respect to his criminal cases in docket number CR97 0121521, CR97 0119759 and CR02 0140996S, the judgments should be vacated and those matters be remanded to the trial court for further proceedings.
The claim of ineffective assistance of counsel essentially complains in Count One that at petitioner's violation of probation hearing trial defense counsel failed to communicate with him prior to the matter being heard, failed to investigate or prepare adequately, failed to object to certain hearsay evidence, and failed to advise petitioner as to his appellate rights and preserve them. As to the claim that trial defense counsel should not have represented him because he had a business arrangement with Attorney Matthew Maddox, who represented the co-defendant, no credible evidence was proffered by petitioner at the habeas trial so the Court will deem that claim abandoned. As to the ineffective assistance of counsel claims in Count Two, petitioner claims with respect to the trial in CR 02 0140996S that trial defense counsel failed to communicate with him, failed to investigate and prepare adequately, failed to object to certain hearsay evidence, failed to file an appeal in a timely manner, and, additionally, failed to object to jury instructions. As to all other claims made in Count Two, no credible evidence was proffered by petitioner at the habeas trial so the Court will deem them abandoned.
Attorney Urso testified that he rented office space on a different floor in the same building as Attorney Maddox. There was no evidence of any business arrangement. (See also Petitioner's Ex. 8, p. 3.)
The matter came to trial before the Habeas Court on November 22, 2005, and January 9, 2006. The Court heard testimony from petitioner, trial defense counsel, Attorney Lindy Urso, and Attorney John Watson, an expert witness in criminal defense. Among the numerous exhibits received by the Court were the transcripts of the violation of probation hearing, underlying criminal trial and sentencing. The Court has 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 case, docket numbers DR 97 0121521 and CR97 0119759, in the Judicial District of Stamford. Petitioner was arrested, and charged with violation of probation under C.G.S. § 53a-32 on two informations, one for each docket number. On or about April 14, 2003, petitioner was found guilty of violation of probation after a hearing before the Court (Kavanewsky, J.) and received a sentence of two years and two months. (See Petitioner's Ex. 6.) This was the second violation hearing on the underlying charges. The first was on March 2, 2000, at which time petitioner was found to be in violation of probation and ordered to serve five years concurrently (Hickey, J.). On February 5, 2002, the court (Nigro, J.) modified petitioner's sentence to probation for the unexecuted portion of the sentence on the condition that he enter and satisfactorily complete the drug rehabilitation program at the Salvation Army, Bridgeport.
There was a two year and two month portion of the sentence remaining.
2. Petitioner was arrested and charged with attempted robbery in the first degree in violation of C.G.S. §§ 53a-49 and 53a-134(a)(3) and assault in the second degree in violation of C.G.S. §§ 53a-8 and 53a-60(a)(2). After a jury trial on July 14, 15, 17 and 18, the Honorable Richard F. Comerford presiding, petitioner was found not guilty of the assault charge and guilty of attempted robbery. On September 12, 2003, he was sentenced to a period of incarceration of ten years, consecutive to the two years and two months he was sentenced to on the violation of probation.
3. Between the years 1993 and 2003 petitioner had been convicted of thirteen felonies. (See Petitioner's Ex. 11, p. 67.)
The petitioner had been arrested 34 times since 1982. (See Respondent's Ex. A.)
4. Attorney Lindy R. Urso represented petitioner at both the violation of probation hearing and the criminal trial as a special public defender. Attorney Urso practiced civil law in California from 1995 to 1996 and then began practicing criminal defense law as a sole practitioner in Connecticut in 1998. He continues to specialize in that area of the law. At the time he was appointed to represent the petitioner, he had represented defendants in two or three criminal jury trials and two or three criminal court trials. Attorney Urso could not recall whether the petitioner's hearing was his first, second or third violation of probation hearing.
5. Attorney Urso was appointed to represent petitioner about four months prior to the violation of probation hearing on April 14, 2003. He met with petitioner when he was brought to the courthouse at times prior to the hearing and discussed the issues regarding the violation hearing. The two issues at the violation hearing were whether petitioner violated a special condition of enrolling in and completing a drug program at the Salvation Army and whether he violated as a result of committing the attempted robbery in the first degree and the assault in the second degree. (See Petitioner's Ex. 2, 3 and 4.)
6. Attorney Urso further discussed with his client the strategy of attempting to show that that there were no signed conditions of probation and that he would not put petitioner on the stand because he would be exposed to questioning by the state prior to trial on charges relating to the alleged robbery, which exposed him to twenty years, while the violation of probation might result in a sentence of only two years and two months. Because petitioner was very much involved in discussing strategy with Attorney Urso in these matters, and because Attorney Urso was focusing on the trial where there was exposure to a twenty-year sentence, Attorney Urso is certain that he would have discussed the reasons why petitioner should not testify at the violation of probation hearing.
7. The victim in the robbery did not testify at the violation hearing and Attorney Urso did not object to the arresting officer, Officer Dogali, testifying to certain statements the victim made to him at the time of the arrest. Sharon Broas, a substance abuse counselor for the Salvation Army, testified to the reason that petitioner was discharged unsuccessfully from their drug program. Petitioner was found to have violated his probation based on the new criminal conduct and his failure to complete the drug program successfully. (See Petitioner's Ex. 6.) Attorney Urso has no recollection of any discussion about appealing the violation of probation matter.
8. Prior to trial, Attorney Urso reviewed with petitioner his testimony for trial. At the conclusion of the jury trial on July 18, 2005, Attorney Urso discussed appealing the guilty verdict. Petitioner signed the notice of appeal rights form and Attorney Urso told him that he would file it on petitioner's behalf. Several months after the trial, however, Attorney Urso realized the form had never been filed. He stated at the habeas trial that he takes full responsibility for the failure to file the notice of appeal form.
9. Attorney John Watson testified as an expert witness in criminal defense for the petitioner. He reviewed certain documents from the trial court, requests to charge by defense counsel, copies of statements by the victim and petitioner, the transcripts from the violation hearing and criminal trial, and some of the habeas pleadings. His opinion, that Attorney Urso failed to effectively represent the petitioner in the specific ways alleged in the petitioner's petition, particularly by his failure to file a notice of appeal after hearing and trial, is based solely on that material.
Petitioner's Ex. 15 sets forth Attorney Watson's educational background and qualifications.
10. Additional facts will be discussed as necessary.
DISCUSSION
The standard which the court must apply to the petitioner's claims of ineffective assistance of counsel is well established. "A petitioner'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, Section 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, 857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004). "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney . . . who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984).
In Strickland v. Washington, supra, the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective, assistance of counsel, he must show that counsel's assistance was so defective that the conviction must be reversed. "That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert denied sub nom., Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct 301, 160 L.Ed.2d 90 (2004).
In order to meet the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . The court must be mindful that [a] fair assessment of attorney performance requires that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 855-56, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
The second prong of the Strickland test involves the prejudice component. There, the petitioner cannot merely show that errors made by counsel had some effect on the outcome of the proceeding. He must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had had a reasonable doubt respecting guilt . . . A court 'hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.' Strickland v. Washington, supra, 466 U.S. 695-96." (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, supra, 89 Conn.App. 856.
"A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . In this context, a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome." (Citation omitted; internal quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
It is not appropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, supra, 466 U.S. 689-90.
In support of his assertion of ineffective assistance of trial counsel, petitioner claims that in both the violation of probation hearing and the later trial counsel failed to communicate with him, failed to prepare adequately, and failed to object to certain hearsay evidence. Further, he claims Attorney Urso failed to advise him of his appellate rights after the violation hearing, failed to object to jury instructions at trial and failed to file notice of appeal after trial. The evidence offered by the petitioner in support of these claims was his own testimony and the testimony of his expert, Attorney John Watson.
"The acceptance or rejection of the opinions of the expert witness is a matter peculiarly within the province of the trier of fact . . ." (Internal quotation marks omitted.) State v. Maldonado, 51 Conn.App. 702, 709, 725 A.2d 962, cert. denied, 249 Conn. 904, 733 A.2d 224 (1999).
The petitioner's claims of failure to communicate and failure to prepare adequately must fail in view of the credible evidence proffered by Attorney Urso, who described the meetings he had with his client, the general substance of the discussion and the general strategy he developed in relation to the violation hearing and trial in conjunction with petitioner. Attorney Urso emphasized that petitioner was very involved in his defense. Moreover, petitioner did not offer any evidence to demonstrate how he had been prejudiced by trial counsel's alleged failure to communicate with him or prepare adequately, nor did he make a showing that the outcome of either proceeding would have been affected by such failures.
As to the claim that Attorney Urso failed to object to hearsay evidence at the violation hearing, this Court concludes that the outcome of the hearing did not depend solely on the exclusion of the hearsay testimony of Officer Dougali. The other issue at the hearing, i.e., the violation of a specific condition of probation that petitioner enroll and successfully complete the drug program at The Salvation Army, was established by the testimony of Sharon Broas. Therefore, even if Officer Dougali's testimony had been excluded a violation of probation would have been found based solely on the petitioner's failure to complete the drug program. As to the hearsay in the criminal trial, Attorney Urso did, in fact, object to that testimony. Although his objection was overruled, the issue was preserved for appeal.
See Petitioner's Ex. 6, pp. 23-25.
See Petitioner's Ex. 3.
See Petitioner's Ex. 11, pp. 3-6.
Petitioner further claims that his trial counsel should have objected to the trial court's jury charge regarding the intent element of robbery, which included the portion applicable to general intent crimes. He argues that by reading the general intent portion of the statute, the trial court permitted the jury to convict him of attempted robbery without a finding that he intended to use or threatened the immediate use of force. All the jury had to find for the conviction, therefore, was that he merely had the conscious objective to engage in a larceny that happened to occur by force.
"[A] person acts intentionally with respect to a result or conduct when his conscious objective is to engage in such conduct." (Petitioner's Ex. 12. p. 16.)
Reading the jury charge as a whole, the petitioner's claim must fail. The trial court, in instructing the jury on the particular elements of robbery, repeatedly told the jury that in order to find the petitioner guilty of that offense it must determine that he had the specific intent to commit larceny by force. The instructions made it clear that, in order to find guilt on the robbery charge, the state had to prove beyond a reasonable doubt the petitioner's specific intent to commit a forcible larceny. "[W]e must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 714, 741 A.2d 913 (1999). Because the overall instruction on intent to commit robbery was proper, trial counsel's failure to raise an objection to the trial court's single reference to the general intent language does not constitute deficient performance.
"A person commits a robbery when with — when in the course of committing a larceny, he uses or threatens the immediate use of physical force upon a person for the purpose of compelling the property to be delivered up. There must be a specific intent to commit larceny by force. (Petitioner's Ex. 12, p. 22; see also Petitioner's Ex. 12 pp. 23, 24 and 26.)
The petitioner finally claims that Attorney Urso was ineffective for failing to advise him of his appellate rights for his violation of probation and robbery convictions. The claim concerning the violation of probation conviction must fail. In Ghant v. Commissioner of Correction, 255 Conn. 1, 761 A.2d 740 (2000), the Connecticut Supreme Court adopted the standard set forth by the United States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), to determine whether trial defense counsel is ineffective for failing to apprise the defendant of the right to an appeal. Following Roe, our Supreme Court held that the sixth amendment does not always require trial counsel to inform a criminal defendant of the right to appeal. "[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." (Internal quotation marks omitted.) CT Page 3047 Ghant v. Commissioner of Correction, supra, 255 Conn. 7.
In the instant case, Attorney Urso did not consult with the petitioner about a possible appeal from the violation of probation conviction. This inaction does not amount to ineffective representation because there was no credible evidence presented to show that petitioner demonstrated an interest in an appeal of the violation of probation hearing, or that a nonfrivolous ground for an appeal existed. In fact, Attorney Urso testified that he and his client were concentrating on the trial of the robbery and assault charges which carried high exposure for incarceration. He recalls no discussion whatsoever regarding appeal of the violation of probation hearing. The Court can infer from those facts that petitioner was not interested in pursuing an appeal on the violation of probation and that Attorney Urso would not have reasonably believed that the petitioner rationally would want to appeal. Moreover, "because the [petitioner] had no nonfrivolous grounds for an appeal, defense counsel was not ineffective for failing to consult with [petitioner] . . ." State v. Turner, 267 Conn. 414, 423, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S.Ct. 36, 160 L.Ed.2d 12 (2004). Attorney Urso, therefore, did not render deficient performance for failing to appeal the petitioner's violation of probation conviction.
As to the claim that trial counsel failed to file an appeal of the conviction after trial in a timely manner, Attorney Urso testified that the petitioner himself signed the notice of appeal form and that he specifically informed the petitioner that he would file the notice of appeal but failed to do so. This demonstrates both deficient performance and prejudice. "If counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 255 Conn. 9. As to the prejudice prong, "whether a given defendant has made the requisite showing will turn on the facts of a particular ease . . . [E]vidence that there were nonfrivolous grounds for an appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination" (Internal quotation marks omitted.) Id., 10. Based on the facts of the instant case, it is clear that, but for counsel's deficient performance, the petitioner would have appealed. See Roe v. Flores-Ortega, supra, 528 U.S. 486. For those reasons, the Court will grant the petition as to this claim only.
Accordingly, the petition for a writ of habeas corpus is granted. Petitioner's appellate rights are ordered to be restored in the matter of CR 02 0140996S.