Opinion
No. CV 04-4000193
December 20, 2007
Memorandum of Decision
The facts in this habeas petition are essentially undisputed. The petitioner pleaded guilty to manslaughter in the second degree and illegal distribution of narcotics based on the advice of his attorney, assistant public defender Claud Chong, that he would be eligible for parole after serving 50% of the fifteen-year sentence for the narcotics offense. The petitioner later learned that the manslaughter conviction, for which he received a concurrent sentence of eight years, is the controlling sentence for parole eligibility determinations and that, because that offense represents a crime of violence, he is not eligible for parole until he has served 85% of the fifteen-year term. See General Statutes § 54-125a(b)(2). The petitioner now claims that his guilty plea resulted from ineffective assistance of counsel.
Even if Chong's erroneous advice that the petitioner would be eligible for parole after serving 50% of his fifteen-year sentence represents deficient performance; see Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 706 n. 3, 846 A.2d 889 (2004); the petitioner did not prove the prejudice prong of an ineffective assistance of counsel claim. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). In general, the prejudice prong in a guilty plea case 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." (Internal quotation marks omitted.) Gray v. Commissioner of Correction, 99 Conn.App. 444, 448, 914 A.2d 1046, cert. denied, 282 Conn. 925, 926 A.2d 666 (2007). In this case, the petitioner essentially renounced any interest in taking the case to trial. Clearly he did not show any reason to believe that he would likely be successful at trial.
Even if the petitioner could prove prejudice in a guilty plea case by showing a loss of some opportunity other than a trial; see Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004) (loss of a plea agreement offer); the petitioner has not done so here. There is no evidence of how the petitioner would have fared better if he knew that he would not be eligible for parole until he served 85% of his fifteen-year sentence. The petitioner did not, for example, establish that the state would have made a lower offer if he had refused to accept the fifteen-year plea agreement. Accordingly, the petitioner has failed to prove prejudice.
The petitioner, though represented by counsel, went to trial based on his original pro se petition which, as best as it can be interpreted, alleges only ineffective assistance of counsel. The petitioner does not allege that, because of misadvice from counsel, his guilty plea was involuntary. See Hernandez, supra, 82 Conn.App. 708-09. The consequence of any conclusion that the petitioner's guilty plea was involuntary would be to vacate the plea and return the case to the trial court.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.