Opinion
CV144006123
12-09-2019
Stephen Neary (Inmate #157380) v. Commissioner of Corrections
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson, J.
I. Procedural History
In this consolidated habeas, the petitioner attacks two different convictions. The original petition, filed on February 22, 2014, challenges certain sentences imposed in the Meriden Superior Court on January 5, 2009. The second petition, filed on April 7, 2014, challenges sentences imposed February 7, 2013, also in the Meriden Superior Court. On February 6, 2015, both petitions were consolidated under this docket number. The cases were tried before the Court on May 2 and August 13, 2019. The claims and factual background under each will be addressed separately.
RESPONDENT’S MOTION TO DISMISS (#120.00)
On April 26, 2019, the respondent filed a motion seeking to dismiss the petitioner’s claims as they relate to sentences he received under General Statutes § 14-215c, Operating Under Suspension while his license was under suspension for alcohol-related incidents. By way of relevant background, on January 5, 2010, the petitioner was sentenced to serve 3 years, suspended after 13 months, 12 months of which was minimum mandatory, followed by three years of probation on the charge of Operating Under the Influence as a third offender, General Statutes § 14-227a. In that same proceeding, he was also sentenced to serve 30-day minimum mandatory sentences on each of two convictions under General Statutes § 14-215c, which were imposed consecutive to each other and consecutive to the DUI sentence. Therefore, the petitioner’s total effective sentence was 3 years, suspended after 15 months incarceration, 14 months of which was mandatory, followed by 3 years of probation. The petitioner filed his first habeas challenge to these convictions on February 22, 2014, well after he had been released from incarceration, but while still on probation. The respondent’s motion to dismiss asserts the 30 day "flat" sentences on the 215c violations expired when the petitioner was released from incarceration, so he was no longer "in custody" on those convictions the time the petition was received by the clerk.
The petitioner was sentenced on several other charges, however, the Court granted unconditional discharges on all other convictions.
A habeas petitioner serving consecutive sentences is considered to be "in custody" on each of the individual sentences imposed until the aggregate term of incarceration created by all sentences has fully expired and, therefore, meets the "in custody" requirement and may bring a habeas challenge against any one of those sentences, even those that have technically expired, at any time during the continuous period of incarceration. Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 46 (1968). "[T]he word ‘custody’ is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession ... [However,] being in custody does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty ..." State v. Straub, 24 Conn. L. Rptr. 179 (March 12, 1999, Sferrazza, J.). A person on probation is considered to be "in custody" for purposes of habeas corpus. Miller v. Commissioner of Correction, 29 Conn.App. 773, 777, 617 A.2d 933 (1992).
What the respondent wishes the Court to differentiate between consecutive sentences that have suspended portion and a period of probation following them and ones that do not. The Court can find no support for that in the law. The law is that a petitioner sentenced to serve consecutive sentences is "in custody" on all of them, and may challenge any of them, until the entirety of the aggregate sentence has expired, even of some of the sentences involved have technically lapsed. Peyton v. Rowe, supra, 391 U.S. at 67. The general theory behind this is that vacating any one of the sentences will effectively advance the petitioner’s release, or, in the cases involving probation, reduce the petitioner’s overall exposure to incarceration.
The respondent’s argument is that vacating the 215c convictions could not advance the petitioner’s release, because he had already been released by the time the petition was filed. The respondent further appears to argue that vacating the sentences could not reduce the petitioner’s exposure to incarceration, because no part of the 215c sentences were part of the suspended sentence that remained while he was on probation. However, if the 215c sentences were vacated, then all of the incarceration credit the petitioner was entitled to would have to be credited towards the DUI charge he was also incarcerated for at the same time. E.g., General Statutes § 18-98d. Therefore, the petitioner would have at least a prima facie argument that he would be entitled to claim the "left over" credit against any subsequent sentence he might receive for a violation of probation on the DUI charge. Therefore, the motion to dismiss is denied.
COUNT ONE- 2010 CONVICTIONS
The petitioner was the defendant in multiple matters pending in the Meriden Superior Court under several different docket numbers. Attorney Thomas Cadden represented him at all times relevant to the claims in the habeas petition. On November 18, 2009, the petitioner entered pleas to two counts of Operating Under the Influence as a 3rd offender, in violation of General Statutes § 14-227a, and two counts of Operating Under Suspension, while his license was under suspension for alcohol-related incidents, in violation of General Statutes § 14-215c, among others charges, as part of a negotiated plea agreement. The agreement called for a total effective sentence of 3 years, suspended after 15 months, 14 of which were minimum mandatory sentences, followed by 3 years probation. There were minimum mandatory fines associated with the Operating Under the Influence and Operating Under Suspension charges, which counsel asked the court to consider waiving. Since sentence was not going to be imposed that day, the Court, Matasavage, J., deferred decision on the fines and fees until the sentencing hearing on January 5, 2010.
As charged, each of the Operating Under the Influence charges carried a minimum mandatory one year, prison sentence, and each of the Operating Under Suspension charges carried a minimum mandatory thirty days.
On January 5, 2010, the petitioner apparently did not appear at court first thing in the morning. Attorney Cadden also did not appear and, although he had sent requests for continuances on all of his other cases scheduled for that same day, did not send any such request specifically related to the petitioner’s case. When the petitioner did appear later in the day, and although his attorney was not present, the Court, Scarpellino, J., after some brief discussion with the State’s Attorney about the structure of the petitioner’s sentence, proceeded to impose sentence.
There was no evidence in the transcript, or placed into the record during the habeas trial as why Attorney Cadden was unable to make court that day. According to the transcript (Exhibit 6), the trial court initially ordered a Bail Commissioner’s Letter to be sent. The petitioner’s case is then recalled at 3:47 p.m., and the court proceeds to sentencing. It should be noted that here is no claim that the sentence imposed was not the sentence that had been agreed upon, and the sentencing judge did, in fact, waive all fines, costs and fees on the petitioner’s behalf.
The petitioner claims that Attorney Cadden was ineffective for several reasons. Specifically, he alleges that Attorney Cadden: a. failed to properly investigate as to the charge of operating under the influence whether there was an illegal arrest, illegal stop, or illegal search and seizure, or whether the petitioner was questioned illegally; b. failed to file a motion to suppress, or to properly investigate the possible basis for a motion to suppress, as to the petitioner’s arrest for operating under the influence; c. as to the charge of operating under suspension, failed to properly investigate whether the petitioner was lawfully at work and whether the police unlawfully searched his vehicle; d. as to the charge of operating under suspension, failed to file a motion to suppress based on the police illegally taking his keys and searching his vehicle without permission or probable cause; and e. on the charge of operating under suspension, failed to investigate whether the petitioner was illegally pulled over, and his vehicle illegally searched and towed away, all without probable cause.
The petitioner’s claims fail, for a myriad of reasons. First, as written, the petitioner frames all of his claims as counsel’s alleged failure to pursue certain pretrial constitutional deficiencies that existed in the petitioner’s case. "A valid guilty plea also renders irrelevant- and thereby prevents the defendant from appealing- the constitutionality of case-related government conduct that takes place before the plea is entered ..." Henderson v. Commissioner of Correction, 181 Conn.App. 778, 796, 189 A.3d 135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018). "It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings ... In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction." Id. at 796-97. "Where ... a guilty plea is entered on the advice of counsel, the plea constitutes an admission of guilt and a waiver of nonjurisdictional defects and claims, including federal constitutional claims, which might otherwise be raised by way of defense, appeal or collateral attack ..." Id. at 797. The petitioner implicitly waived all of the claims in Count One, because they all assert constitutional violations that pre-date his guilty pleas. Id.
It should also be noted that the petitioner specifically conceded during closing arguments that the claims in Count One, paragraphs 23b and 23d had been waived as a result of the guilty plea.
Additionally, even if the Court were to give the petitioner the benefit of the doubt and read these claims to assert that the petitioner would not have pled guilty, but for counsel’s failure to advise him on these suppression issues as possible defenses, they still fail. The petitioner was facing two counts of Operating Under the Influence as a third offender, as well as two counts of Operating Under Suspension while his license was suspended for alcohol-related incidents. The only evidence regarding the specific circumstances of any of these arrest, other than the petitioner’s own self-serving testimony, was for the DUI arrest on August 27, 2008. The arresting officer in that matter testified credibly that he initially stopped the vehicle driven by the petitioner because the license place came back as an active "File 1," meaning there was a report it had been involved in .a felony. After being stopped, the petitioner was reportedly uncooperative with police commands, verbally combative, smelled of alcohol, appeared unsteady on his feet, and had a bottle of Southern Comfort in the center console. Given those circumstances, the petitioner failed to offer any credible legal or factual basis for suppressing evidence gained from this stop and arrest.
In determining whether a petitioner has proven ineffective assistance of counsel, the Court may look to either the "performance" prong- whether counsel performed reasonably according to professional norms, under the circumstances then present- or the "prejudice" prong- whether there is a reasonable probability that the matter alleged by the petitioner would have impacted the outcome of the proceeding- and the petitioner’s failure to prove either is fatal to a habeas petition. Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). Here, the petitioner has failed to prove prejudice, because he has failed to establish that any credible factual or legal basis existed to suppress evidence from this DUI arrest.
As to the second DUI arrest and the two alcohol-related Operating Under Suspension charges, the petitioner failed to present any affirmative evidence in support of these claims. It is the petitioner’s obligation to present affirmative evidence or witnesses in support of his claims. Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, 1208, cert. denied, 258 Conn. 943, 786 Conn. 428 (2001). Here, the petitioner failed to present the specific evidence he claims should have been suppressed in each case. His failure to do so is fatal to these claims. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
COUNT TWO- 2013 CONVICTIONS
On July 7, 2012, the petitioner was arrested on charges of Interfering with Police, Assault on Public Safety Personnel (police officer), Breach of the Peace 2nd, and Carrying a Dangerous Weapon. As a result of this arrest, he was also charged with violating the probation he was serving on the 2010 convictions. During all times relevant to the claims in this petition, he was represented by Attorney Christine Janis of the Public Defender’s Office. On February 7, 2013, the petitioner submitted written pleas of nolo contendere to Interfering with Police, Assault of a Public Safety Officer, and Carrying a Dangerous Weapon. He also admitted the Violation of Probation on the same day. The pleas were entered in exchange for a Court indicated total effective sentence of 7 years, suspended after 2 1/2 years, followed by a 2-year conditional discharge on the criminal charges. He received a 23-month concurrent sentence on the violation of probation.
The petitioner claims that Attorney Janis was ineffective for a number of reasons. He first claims that Attorney Janis failed to properly investigate and produce exculpatory evidence contained on a surveillance video from the bar. Some additional background information is necessary to fully understand this claim.
The substance of the allegations for this arrest were that the petitioner entered a bar by the name of AJ’s Oasis on July 7, 2012, in an irate mood, looking for someone named Terry. The petitioner pushed several people, including the owner of the bar. At some point, the patrons realized the petitioner was carrying a large knife in a sheath, and some of them struggled to gain physical control of the defendant and took the knife away. During the fracas, someone had called the police and reported a person with a knife. When the police entered AJ’s Oasis, the petitioner was identified as the source of the problem. The police, unaware that the knife had already been taken away from the petitioner, asked where it was, but received no response. Contemporaneously, the petitioner was directed to get on the ground several times, but he refused to follow police commands. One or more officers finally grabbed the petitioner and attempted to force him to the ground, which he continued to resist and, once taken to the ground, continued to thrash and kick and refused to take his hands out from underneath his body. Police ultimately had to taser the petitioner twice in order to get him under control. During the struggle, an Officer Scully was accidentally hit by one of the tasers, and an Officer Wilkerson suffered injuries to his hand, back, and neck as a result the petitioner’s kicking and thrashing.
The petitioner claims that he is aware from personal knowledge that AJ’s Oasis had a video security system in place. He also claims that information in some of the original police reports indicate that officers viewed the video surveillance to review the claims of the petitioner initially pushing and shoving patrons. He asserts that there was additional video that would have supported his claims that he did not resist the police, but that they were simply overzealous and immediately tackled him upon entering the bar. This claim fails for several reasons.
The first reason is that the petition to produce the video for the habeas Court to review. When a petitioner claims that counsel failed to present certain evidence at the trial level, it is the petitioner’s burden to present that evidence before the habeas court to prove that it would have been relevant, admissible, and material to the outcome at the trial level. Nieves v. Commissioner of Correction, supra, 51 Conn.App. at 622-24. The petitioner’s failure to produce the video is fatal to his claim. Id.
In any event, Attoreny Janis called the bar owner to testify as a witness in the petitioner’s violation of probation hearing, which commenced the day before the cases were resolved, and he testified that the altercation with police was not captured on the security video system because of its location in the bar.
The claim also fails because the petitioner cannot prove that Attorney Janis provided deficient representation, because the surveillance video no longer existed by the time she got involved in the petitioner’s case. The incident that led to the petitioner’s arrest occurred in July 2012. According to the credible evidence presented before this Court, the security system at AJ’s Oasis operated in such a way that police were unable to download the video onto a CD or portable drive on the day of the incident. Although the police made several requests of the owner, who in turn was supposedly making request for assistance from the manufacturer, nobody was ever able to download a copy of the surveillance from the day of the incident, and the system automatically recorded over itself every three weeks. Therefore, by the time Attorney Janis was appointed to represent the petitioner in September 2012, and first met him in October 2012, the video had already been "destroyed." It goes without need for legal citation that counsel cannot be ineffective for failing to make proper use of evidence that no longer existed at the time counsel appeared in the case.
Exhibit 1, Letter of November 27, 2013.
The Court’s finding that the video was "destroyed" before Attorney Janis represented the petitioner also necessarily resolves the claim that Attorney Janis failed to properly preserve the video, so that claim will not be addressed.
The petitioner next makes various claims asserting that Attorney Janis failed to properly advise him regarding the factual and legal basis for each charge (49b) and the terms and conditions of the plea agreement (49c), and that she coerced him into pleading to the Assault on Police and Possession of a Dangerous Weapon charges, even though there was insufficient evidence to support them. Again, some additional background information is required in order to fully understand this claim.
The petitioner did initially refuse all pretrial offers, insisted on a trial on the criminal charges, and commenced a contested hearing before Hon. Vernon Oliver on the violation of probation charge on February 5, 2013. The VOP hearing was scheduled to continue at 2:00 p.m. on February 6th, however, the petitioner failed to appear on time, and, when he did finally show up later that afternoon, he was too intoxicated to participate in the hearing. After some discussion, Judge Oliver increased his bond, incarcerated the petitioner, and continued the remainder of the hearing to the following day. Since the violation of probation was based primarily on the petitioner’s arrest at AJ’s Oasis, the first day of the hearing provided Attorney Janis with a free "preview" of the State’s likely case if the criminal charges went to trial. When the petitioner appeared at court on February 7, 2013, she handed him a letter explaining in great detail how much jeopardy she believed he had placed himself in by appearing drunk the day before, and providing her opinion on the of strength of the State’s case on the criminal charges. Before completing the violation of probation hearing, the attorneys met with Judge Fischer for one last chance to resolve the matter. The petitioner entered his pleas before Judge Fischer and was sentenced the same day.
Exhibit 1, Letter of February 7, 2013.
"Where ... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases ... [A] defendant who pleads guilty upon the advice of counsel 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." (Internal quotation marks omitted.) Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness." Id., 57. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Strickland v. Washington, supra, 466 U.S. 688. Even if the petitioner is able to show that counsel’s performance was constitutionally deficient, they must also meet the second prong of the test, which "focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. "In 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." Washington v. Commissioner, 287 Conn. 792, 835, 950 A.2d 1220 (2008). "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
Although Attorney Janis did not agree with the petitioner’s decision to proceed to trial, she was prepared to represent his wishes and, as the evidence indicated, had issued subpoenas for numerous witnesses to defend the VOP case. "A habeas court, as well as a trial court, may properly rely on ... the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged." Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). When the petitioner appeared before Judge Fischer on February 7, 2013, he responded without hesitation that he had been given sufficient time to consult with his attorney, that he understood the evidence the State had against him, that he had discussed the elements of the offenses and understood them, that he was satisfied with counsel’s advice and representation, and that nobody had forced or threatened him to enter his pleas. In the end, the evidence supports a finding that petitioner entered his pleas because he wanted to, likely because he finally realized the depth of the hole he had dug for himself. The Court also does not find the petitioner credible that he did not understand the terms of the plea agreement, that he was still prepared to proceed with the VOP hearing and trial, or that Attorney Janis coerced in him into pleading. Washington v. Commissioner, supra, 287 Conn. at 835. Further, the transcript of his plea canvas directly contradicts these claims. Bowers v. Warden, supra, 19 Conn.App. at 443.
Exhibit 10, Transcript of February 7, 2013.
The petitioner’s next claim is that Attorney Janis failed to move to withdraw his pleas as he had requested. Although the petitioner testified before the habeas Court, he offered no testimony or documentation in support of a claim that he sought to withdraw his pleas, nor did he present any evidence on the legal basis for withdrawing his pleas. See, Practice Book § 39-27. There is also nothing in the plea transcript to support that the petitioner ever attempted to stop or delay the proceedings, or to withdraw his pleas before the Court imposed sentence. Therefore, this claim fails for lack of evidence.
This is important, because the trial court would have lost jurisdiction to address a request from the petitioner to withdraw his pleas after sentence was imposed. State v. Chapman, 33 Conn.App. 205, 213-14, 635 A.2d 290, 295 (1993), cert. denied, 228 Conn . 920, 920, 636 A.2d 851 (1994). ("The defendant passes into the jurisdiction of the commissioner of correction when a judgment of mittimus is issued ... At this point, the court’s jurisdiction over the prisoner terminates.")
Petitioner’s final claim is that Attorney Janis failed to adequately explain previous and more advantageous plea offers that had been extended throughout the course of the case. It is not necessary for the Court to reiterate the various offers that were made, because the petitioner lacks credibility. The petitioner did not reject offers for lack of understanding. His own testimony before this Court was that he believed he was innocent of the Assault on Police. In fact, it was his position that the police had assaulted him. Every offer from the State included a plea to Assault on Police, and the petitioner was vehement with counsel that he was not going to plead guilty to any offer including that charge. Attorney Janis also testified credibly that she explained the various offers to the petitioner, but that he was insistent on proceeding to trial. As to this claim, the petitioner has failed to establish that counsel was deficient or that he was prejudiced.
On cross examination, the petitioner testified, "I rejected [the offers] because I was innocent and I did not want to plead guilty to the Assault on Police Officer charge."
COUNT THREE- DUE PROCESS VIOLATION; PROSECUTORIAL IMPROPRIETY
The petitioner claims here that he filed post-conviction motions on March 4, 2014, seeking to correct what he claims were illegal sentences as to both his 2010 and his 2013 convictions. On April 24, 2015, both motions were eventually heard and formally denied by the trial court. According to his own allegations, the petitioner appealed the denial, and the appeal was dismissed. State v. Neary, 177 Conn.App. 871, 173 A.3d 982 (2017), cert. denied, 328 Conn. 901, 177 A.3d 564 (2018).
The petitioner’s claims are barred by the doctrine of res judicata, which provides that a prior judgment serves as a bar to a subsequent action involving claims that were raised and litigated in that prior proceeding. Henderson v. Commissioner of Correction, 129 Conn.App. 188, 200, 19 A.3d 705 (2011), cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011). Res judicata also bars parties from relitigating issues in a habeas proceeding that were previously decided on appeal. McGee v. Commissioner of Correction, 157 Conn.App. 863, 872-73, 118 A.3d 140 (2015), cert. denied, 318 Conn. 903, 122 A.3d 633 (2015). The petitioner’s own allegations set forth that he previously litigated claims that his 2010 and 2013 sentences were illegal, and that he appealed the trial Court’s decision on those matters. He may not relitigate those claims here. Henderson v. Commissioner, supra, 129 Conn.App. at 200.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.