Opinion
CV154007199S
08-27-2018
Peter MILLER (#201269) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
On May 7, 2015, the petitioner, Peter Miller, filed a petition for a writ of habeas corpus, which was amended by assigned counsel on September 8, 2015. The amended petition raises claims in two counts and challenges the petitioner’s conviction in docket number CR11-0260215, GA2 at Bridgeport, following his guilty plea on June 7, 2012, to the charge of possession of one kilogram of a cannabis-type substance with the intent to dispense in violation of General Statutes § 21a-278(b). The petitioner was sentenced in accordance with the plea agreement to a total effective sentence of seven years to serve, execution suspended after the service of sixteen months incarceration, followed by three years of probation.
The petitioner alleged in the first count of his amended petition for a writ of habeas corpus that attorney Jared Millbrandt provided ineffective assistance of counsel and thereby rendered invalid his guilty plea. More specifically, the petitioner alleged that attorney Millbrandt failed to: (a) conduct an adequate investigation into the circumstances of the case; (b) adequately advise and assist the petitioner with the process of applying for admission into a pretrial supervised diversionary program for persons with psychiatric disabilities; (c) adequately advise and assist the petitioner with the process of applying for admission into a pretrial treatment program for drug dependent persons; (d) adequately advocate for the petitioner to be found to be a drug dependent person; (e) adequately advocate for an order of suspension of prosecution and treatment for drug dependency; (f) adequately research the legal issue of the petitioner’s immigration status and the probability of deportation, removal, and inadmissibility for reentry under the terms of the plea agreement; (g) accurately advise the petitioner about the probability of deportation, removal, and inadmissibility for reentry under the terms of the plea agreement; and (h) make the petitioner’s immigration status and the probability of deportation, removal, and inadmissibility for reentry, part of the plea bargaining process with the prosecuting authority and the judicial authority. The petitioner further alleged that but for these deficiencies by trial counsel, he would not have pleaded guilty. The second count of the amended petition alleged that the petitioner’s right to due process was violated because his guilty plea was not made knowingly, intelligently, and voluntarily because he did not know or understand the immigration and deportation consequences of his plea. As relief, the petitioner requested that the habeas court vacate the judgment of conviction and such other relief that law and justice require.
The respondent’s return denied the petitioner’s claims and asserted as a special defense that the petitioner had procedurally defaulted because he failed to file a motion to withdraw his guilty plea with the trial court and appeal from the denial thereof. The petitioner’s reply denied that he had procedurally defaulted and asserted cause and prejudice (i.e., ineffective assistance by trial counsel).
The matter proceeded to trial over the course of four days before the court, Fuger, J., which denied the claims. The petitioner appealed from the denial of the petition for certification to appeal. The Appellate Court reversed and remanded the matter for further proceedings. Miller v. Commissioner of Correction, 176 Conn.App. 616, 170 A.3d 736, cert. denied, (2017).
The parties appeared before this court on May 7, 2018, for the remanded proceedings. The parties entered several additional exhibits to supplement those previously entered into evidence. The petitioner testified and presented the testimony of Julie Shortier, Janet West, Dr. Khan, attorney Nancy Anderson, and attorney Sarah Simeonidis. The respondent presented testimony from attorneys DeJoseph and Jared Millbrandt.
For the reasons articulated more fully below, judgment shall enter granting the petition for a writ of habeas corpus.
DISCUSSION
I. Procedural History and Appellate Court Decision
"The petitioner was charged under two separate docket numbers with a variety of drug-related offenses. On June 7, 2012, the petitioner appeared before the court, Iannotti, J., and, pursuant to a plea deal, pleaded guilty to possession of a controlled substance with intent to sell in violation of General Statutes § 21a-278(b). At that time, the prosecutor recited the following facts underlying this plea. On or about October 13, 2011, a United States Postal Service inspector intercepted a package that contained eighteen pounds of marijuana. Thereafter, a controlled delivery was made to 15 Pinetree Lane in Fairfield. The package was accepted by the petitioner’s girlfriend, Tracy Dapp, who, upon accepting it, informed the detectives that the parcel was for the petitioner. Subsequently, the petitioner arrived at Dapp’s residence, where he was arrested and made incriminating statements to the police. The record indicates that a search of the petitioner’s vehicle revealed the eighteen pounds of marijuana, but it is unclear whether Dapp gave the petitioner the marijuana to put in his vehicle before he was apprehended by the police at her residence.
"The petitioner was represented before the trial court by Attorney Jared Millbrandt, a public defender. During the plea canvass, the court asked the petitioner whether he had discussed with counsel ‘the charge he pleaded guilty to, the elements of the offense, maximum penalty twenty years, [and] mandatory minimum five years,’ and whether the petitioner understood that the court could deviate below the mandatory minimum sentencing guidelines, to which the petitioner answered, ‘Yes.’ The court then asked whether the petitioner was pleading guilty ‘freely and voluntarily.’ The petitioner replied, ‘Yes.’ The court asked, ‘Are the facts as read by the state essentially correct?’ The petitioner answered, ‘Correct.’ Finally, the court asked the following: ‘Do you understand [that] if you are not a citizen this can result in deportation from the United States, exclusion from the admission to the United States, [and] denial of naturalization pursuant to the laws of the United States?’ The petitioner replied, ‘Yes.’ The court then found that the plea was voluntarily and knowingly made with the assistance of competent counsel. On July 30, 2012, the court sentenced the petitioner to seven years of incarceration, execution suspended after service of sixteen months, followed by three years of probation.
"On July 30, 2013, the United States Immigration Court ordered that the petitioner be removed from the United States to Jamaica because his conviction of possession of a controlled substance with intent to sell constituted an aggravated felony, for which the consequence is mandatory deportation." Miller v. Commissioner of Correction, supra, 176 Conn.App. 617-19.
"See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012)."
"The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. Davis v. Commissioner of Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100, 111 A.3d 829 (2015) (criminal defendant constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a challenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard ...
"It is well established that the failure to adequately advise a client regarding a plea offer from the state can form the basis for a sixth amendment claim of ineffective assistance of counsel. The United States Supreme Court ... recognized that the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective assistance of counsel claims arising out of the plea negotiation stage. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (Citations omitted; internal quotation marks omitted.) Duncan v. Commissioner of Correction, 171 Conn.App. 635, 646-47, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).
"We now set forth the well established standard that applies to a claim of ineffective assistance of counsel. ‘To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052] ... The petitioner has the burden to establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ...
" ‘To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment ... It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial.’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Jones v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-124004742-S, 2014 WL 7495091 (November 21, 2014) (reprinted in 169 Conn.App. at 407, 415-16, 150 A.3d 757), aff’d, 169 Conn.App. 405, 150 A.3d 757 (2016), cert. denied, 324 Conn. 909, 152 A.3d 1246 (2017).
" ‘For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme Court has modified the second prong of the Strickland test to require that the petitioner produce evidence that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial ... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied ... [S]ee ... Hill v. Lockhart, [supra, 474 U.S. at 59, 106 S.Ct. 366] (modifying Strickland prejudice analysis in cases in which petitioner entered guilty plea). It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier. Lewis v. Commissioner of Correction, 165 Conn.App. at 411, 451, 139 A.3d 759, [cert. denied, 322 Conn. 901, 138 A.3d 931 (2016) ], citing Strickland v. Washington, supra, 466 U.S. at 697, 104 S.Ct. 2052 (a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the [petitioner] ).’ (Citation omitted; internal quotation marks omitted.) Flomo v. Commissioner of Correction, 169 Conn.App. 266, 278, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017)." Miller v. Commissioner of Correction, supra, 176 Conn.App. 623-26.
The petitioner challenged the habeas court’s conclusion that that attorney Millbrandt’s representation was not deficient. The Appellate Court agreed with the petitioner’s contention that counsel "... failed to advise him adequately that entering a guilty plea to an aggravated felony would subject him to mandatory deportation." Id., 626-35. The Appellate Court also concluded, however, that the record was not adequate for it to determine whether counsel’s deficient performance prejudiced the petitioner. Id., 636. "[T]he habeas court failed to consider whether, if Millbrandt’s performance was constitutionally deficient, ‘there is a reasonable probability that, but for [that deficient performance], [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ " Id. The matter was remanded "to the habeas court with direction to determine whether the petitioner was prejudiced by Millbrandt’s deficient performance." Id., 637.
II. Proceedings on Remand; Prejudice Determination
The petitioner was the first witness to testify. According to the petitioner, he is from Kingston, Jamaica, and lived there until 1986-87, when he was sixteen or seventeen years old. The petitioner has not lived there since, although he has visited twice. In the decade preceding his guilty plea in this matter, the petitioner had pleaded guilty to charges in other cases. The judges in those prior matters canvassed the petitioner about the immigration consequences. The petitioner did not think that the present matter would be any different than the prior cases and convictions, which did not lead to deportation proceedings. Conversely, the present conviction resulted in the petitioner being taken into custody by Immigration and Customs Enforcement (ICE) and told that he would be deported to Jamaica.
The petitioner served his sentence- -sixteen months- -in a federal immigration detention center. The petitioner did not agree to deportation to avoid serving his term of incarceration. ICE informed the petitioner to get an attorney to contest the deportation proceedings, and he received legal assistance from a Yale University Law School clinic. The petitioner contested his deportation to Jamaica because most of his family resides here in the United States, either in Connecticut or in Vermont. The petitioner was able to post bond and be released while contesting deportation. The petitioner testified that he would not have pleaded guilty had he known that he faced mandatory deportation as a result of the present conviction.
The petitioner has psychiatric issues (bipolar, mood disorder, and schizoaffective disorder) that have factored into his criminal matters and that factor into his contesting deportation. The issues are well-established through various documents and the testimony of witnesses such as Julie Shortier, a Licensed Clinical Social Worker with the Department of Mental Health and Addiction Services, Janet West, a case manager at the Southwest Mental Health System, and Dr. Tasneem Khan, a psychiatrist at the Southwest Mental Health System. In the underlying criminal matter, the petitioner was found not competent, but his competency was restored. The petitioner is prescribed medications to treat his psychiatric issues and is asymptomatic while he is compliant with the regimen of medications. Deportation to Jamaica would negatively and significantly impact his treatment, as well as the ability to receive the medications he requires. According to the petitioner, medications such as the ones he takes are incredibly expensive in Jamaica, and individuals with psychiatric issues are looked down upon and shunned by the community. Here he has family connections, lives with his mother, has other close family members, and three children from a previous marriage. Deportation to Jamaica would entail the removal of the petitioner from not just this country, but also from the family support structure, his psychiatric treatment, and the medications he requires.
The petitioner testified that he would have proceeded to trial had he known that deportation is mandatory. Instead, he pleaded guilty because the negotiated sentence was relatively short and the petitioner expected to serve his time and then return relatively quickly to his family. The petitioner did not know that ICE would detain him. If the petitioner had proceeded to trial, he would have retained, if able to, another attorney to do all he could to avoid deportation.
Michael DeJoseph, who prosecuted the petitioner in the criminal matter at issue, testified that he does not take into account a defendant’s immigration status during the prosecution of state criminal charges. Benefits of such an approach are that defendants are not treated disparately and greater consistency between cases. The plea DeJoseph offered to the petitioner took into consideration that he did not have a substantial criminal history or numerous previous felony convictions. The evidence in the case, according to DeJoseph, was overwhelming, involved more than fifteen pounds of marijuana, and a warrant signed by a federal judge. Although the petitioner wanted to avoid jail time, the judge overseeing the pretrial thought the facts of the case warranted a term of incarceration. DeJoseph noted that Millbrandt never indicated that the petitioner wanted to proceed to trial. Millbrandt did bring the petitioner’s immigration status to DeJoseph’s attention as part of his efforts to get the best possible plea deal from the prosecutor. However, the petitioner’s immigration status did not play a role in the plea offers.
Attorney Nancy Anderson testified via video from Jamaica, where she has been involved in the legal profession and legal education fields for nearly half a century. Anderson has been practicing law in Jamaica since 1981, from 1981-1988 was the director of the Kingston Legal Aid Clinic, from 1988-2000 was in private practice with a small law firm, from 2000-2002 was the first director of Jamaica’s newly created legal aid, and other professional and government legal experience. Since 2000, her major focus has been psychiatric issues and the Jamaican legal system.
According to Anderson, individuals with psychiatric issues who are deported to Jamaica arrived stigmatized. The Jamaican police interview such deportees, who receive no assistance, although most are not arrested when deported. Such deportees often end up homeless and are not well received by Jamaican society. Psychiatric medications are not widely available in Jamaica and individuals suffering from psychiatric conditions are further stigmatized. Psychiatric medications must be purchased, are costly, and are not readily available. It is common for deportees with psychiatric conditions to become involved with crime and the police.
Attorney Millbrandt acknowledged that some clients want to go to trial no matter the likelihood of going to prison, while others want to negotiate the least amount of jail time and avoid criminal convictions. Here, the petitioner implicated himself after being advised of his rights and the evidence against the petitioner was strong. The petitioner’s primary objective was to resolve the criminal cases with the least amount of jail time possible. The immigration consequences did not appear to be equally important. As did the prosecutor DeJoseph, Millbrandt noted that immigration status should not factor into plea negotiations because then a noncitizen could receive better treatment than a citizen because of sentence disparities.
Millbrandt conveyed all plea offers to the petitioner. The court indicated offer, which was not for a specific sentence, made the petitioner apprehensive because his concern was doing the least amount of time in prison. Although the court had the flexibility to impose a sentence it thought appropriate, as informed by such tools as the presentence investigation report, the petitioner accepted the court-indicated offer after Millbrandt explained it three or four times to the petitioner.
The petitioner never raised any concerns regarding his immigration status. According to Millbrandt, the petitioner never wanted to go to trial because of the lengthy sentence exposure- thirty-eight years- he was facing if convicted after a trial on all counts. There was no way to avoid the petitioner receiving a felony conviction. Millbrandt strove to mitigate the immigration consequences, but never advised the petitioner that his deportation was a certainty.
Discussion
The Appellate Court’s remand is limited in scope to determining whether Millbrandt’s deficient performance when advising the petitioner of the immigration consequences of his guilty plea prejudiced him. The Appellate Court "recognize[d], as the parties have observed, that the habeas court did make certain factual findings that might be relevant to a prejudice analysis. Nevertheless, the habeas court failed to consider whether, if Millbrandt’s performance was constitutionally deficient, ‘there is a reasonable probability that, but for [that deficient performance], [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, supra, 169 Conn.App. at 278, 149 A.3d 185. Because the question of prejudice presents a mixed question of fact and law, [the Appellate Court could not] conclude whether the petitioner was prejudiced by Millbrandt’s deficient performance without the habeas court’s complete factual findings concerning the Strickland prejudice prong ..." Miller v. Commissioner of Correction, supra, 176 Conn.App. 636.
Prejudice here may not be presumed. See, e.g., Duncan v. Commissioner of Correction, supra, 171 Conn.App. 661-62. "... [T]he Hill prejudice standard provides that [i]n the context of a guilty plea ... to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel’s alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.’ (Internal quotation marks omitted.) Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015); see also Thiersaint v. Commissioner of Correction, supra, 316 Conn. at 101, 111 A.3d 829; Saksena v. Commissioner of Correction, 145 Conn.App. 152, 156, 76 A.3d 192, cert. denied, 310 Conn. 940, 79 A.3d 892 (2013). ‘In evaluating whether the petitioner had met this burden and evaluating the credibility of the petitioner’s assertions that he would have gone to trial, it was appropriate for the court to consider whether a decision to reject the plea bargain would have been rational under the circumstances. Padilla v. Kentucky, [ 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ].’ (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, supra, 169 Conn.App. at 280, 149 A.3d 185." Duncan v. Commissioner of Correction, supra, 171 Conn.App. 663.
This court has conducted a de novo prejudice prong assessment. While the prior habeas court may have made some factual findings relevant to the prejudice determination, this court shall make its own independent findings. The credibility determinations of witnesses, most importantly, the petitioner, are at the heart of these determinations.
The court finds the petitioner credible and, therefore, credits his testimony that, had he known deportation was a certainty, he would have not pleaded guilty and proceeded to trial. A criminal defendant has a sacrosanct right to trial by jury, even if conviction itself is a certainty. The petitioner’s decision to proceed to trial, perhaps facing incarceration for much of the remainder of his life, is his to make after being properly advised about mandatory deportation. The court further finds that the petitioner’s decision to face almost certain conviction and a lengthy sentence, thereby not being immediately deportable, is rational under the circumstances of this case. The petitioner’s mental health treatment and proximity to his family while incarcerated here, with nothing comparable awaiting him in Jamaica, are reasonable grounds to persist in a not guilty plea and proceed to trial. It would be a fallacy to view deportation and the conditions and circumstances the petitioner would face in Jamaica as "better" than a lengthy term of incarceration. See, e.g., Padilla v. Kentucky, supra, 559 U.S. 366 ("we find it ‘most difficult’ to divorce the penalty from the conviction in the deportation context ... Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult"). (Internal citation omitted.)
The United States Supreme Court in Padilla itself emphasized that although deportation is a collateral and not a direct consequence of a conviction, it is severe enough that it put immigration and deportation advice by attorneys under the umbrella of Strickland . Padilla v. Kentucky, supra, 559 U.S. 365-66 ("We have long recognized that deportation is a particularly severe ‘penalty,’ ... but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century ... Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies ... [.]").
The petitioner is aware of the maximum sentence he faces if his habeas corpus petition is granted and he goes to trial and is convicted. The fact that the petitioner still wants to go to trial is a persuasive reason and buttresses his testimony that he would have gone to trial had he known that his deportation was mandatory following his guilty plea. Accordingly, the court concludes that the petitioner has shown that he was prejudiced by counsel’s deficient performance.
CONCLUSION
Based upon the foregoing, the court grants the petition for a writ of habeas corpus. Judgment shall enter for the petitioner. The conviction and sentence in docket number CR11-0260215, GA2 at Bridgeport, are vacated. The matter is remanded to the criminal court for further proceedings in accordance with law. Furthermore, the petitioner’s motion to terminate the automatic stay pursuant to Practice Book § 61-11 is granted.
It is so ordered.