Opinion
No. TSR CV03-0004174-S
November 7, 2006
MEMORANDUM OF DECISION
On September 12, 2003, petitioner filed a pro se petition for a writ of habeas corpus, which was amended on June 16, 2006. The amended petition raises a claim of ineffective assistance of trial defense counsel and requests that this court vacate petitioner's underlying convictions. Respondent's return denies both the material allegations and that petitioner is entitled to habeas relief. Prior to trial, the parties stipulated that no applications for sentence review were filed in the underlying criminal matters.
By order of the court (White, J.), another habeas corpus matter, CV03-0004174, was consolidated into this matter on January 20, 2004.
This matter came before the court on October 10, 2006 for a trial on the merits. Witnesses included petitioner, Andre Martinez and John Kay. The court finds Martinez to be credible in part and not credible in part and petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits and the parties' closing arguments. After applying the law to the facts, judgment enters granting, in part, the petition for a writ of habeas corpus.
At the outset of trial, the petitioner withdrew the claims in paragraphs (13)(A) through (C) of the amended petition.
Kay is an employee of the Department of Corrections. Kay introduced into evidence a page from the Northern Correctional Institution (NCI) log book for the housing unit in which petitioner was residing during December 2000.
Neither party submitted a memorandum of law.
FINDINGS OF FACT
Petitioner was the defendant in five criminal cases pending in the Superior Court-judicial district of Stamford/Norwalk. In all five cases, petitioner was charged, inter alia, with burglary in the third degree, in violation of Gen. Stat. § 53a-103 and conspiracy to commit burglary in the third degree in violation of Gen. Stat. §§ 53a-48/53a-103. Thereafter, on December 5, 2000, after a trial before Hon. Martin L. Nigro and a jury of six, petitioner was convicted of five counts of burglary in the third degree. On January 30, 2001, petitioner was committed to the custody of the commissioner of corrections for a total effective sentence of twenty years to serve.
Docket numbers CR99-130886, CR99-130887, CR99-130888, CR99-130892, CR99-131443.
At all relevant times, petitioner was represented by Attorney James Hess. Hess did not testify at the habeas trial.
According to respondent, Hess has moved from the state of Connecticut and is not able to be located.
Petitioner's offenses consisted of a series of house burglaries which occurred in Stamford and Darien during the period of September — November 1999. By early December 1999, Stamford police suspected that Martinez was one of the perpetrators of these burglaries. These suspicions were confirmed when a review of pawn shop receipts revealed that Martinez had sold to a local pawn shop an item taken from one of the burglaries. On this basis, Stamford police secured and executed a search warrant for Martinez' mother's residence and recovered items stolen from at least one other of the burglaries. As a result Martinez was arrested.
While in custody, Martinez gave a written statement implicating himself and petitioner in the five burglaries. On the basis of that information, Stamford police obtained an arrest warrant for petitioner and on or about December 4, 1999, took him into custody. Thereafter on December 6, 1999, petitioner submitted to an interview by Sergeant Peter diSpagna of the Stamford police department and Detective Ray Osborne of the Darien police department. This interview was tape recorded and a transcript thereof was introduced as an exhibit at the underlying criminal trial and at this habeas trial. Significantly during the course of his interview, petitioner implicated himself in the five burglaries for which he had been arrested.
At the habeas trial, Martinez testified and, despite his written confession to the contrary, disavowed any involvement in three of the burglaries and completely exculpated petitioner as to all five of the burglaries. Additionally Martinez testified that if, at petitioner's criminal trial, he had been called as a witness for the defense, he would have testified to these facts. During cross examination by respondent, Martinez admitted that since 1991, he has had at least seventeen felony convictions; that his written statement given to Stamford police, indicates he and petitioner committed four or five burglaries together; that he was "high" on cocaine during some of the burglaries; that his use of cocaine impairs his present ability to remember some of the details of the burglaries; that if he had testified at petitioner's trial consistently with his written confession, he would have harmed petitioner's case and, finally, that Martinez was represented by his own defense counsel.
At the habeas trial, petitioner testified that he had wanted Martinez to testify for the defense at his trial and that he had so informed Hess. Petitioner also claimed that he told the Stamford police he was only involved in one of the burglaries. He further testified that prior to sentencing, he never reviewed the presentence investigation report (PSI) with Hess, that there are numerous inaccuracies in the personal history portion of the PSI and that he never met with Probation Officer Bobbi Spielman. Petitioner further claims that despite his extensive history of substance abuse, he has never received drug treatment. Finally petitioner claimed that after sentencing, his attorney never discussed the option of filing for sentence review.
Notably in his remarks at sentencing, petitioner apologized "to the victims of the crimes that the jury found me guilty, for the suffering and the loss that the victims — that the victims endured." By these comments, either petitioner was admitting to his involvement in all five of the offenses or he was merely currying favor with the sentencing court.
During cross examination, petitioner conceded that at the time of his criminal trial, Martinez was living between Florida and New York and that he did not have an address for Martinez. Upon further questioning, petitioner admitted that he was involved in a drug treatment program in 1991 but was discharged after fighting with another client; and thereafter in 1999, he applied for another drug program but chose not to enter the program "because he was still under the influence."
The court finds not credible Martinez's present claims that petitioner was not involved in the five burglaries; and that Martinez would have waived his fifth amendment privilege and testified in petitioner's defense. Likewise, the court finds not credible petitioner's present claims that he was not involved in the five burglaries; that he informed Stamford police, he was only involved in one burglary; and that he never met with Probation Officer Bobbi Spielman to assist in preparing the PSI.
At the time of petitioner's trial, Martinez's five cases were still pending. Sometime after the conclusion of petitioner's trial, Martinez pleaded guilty and was sentenced.
The NCI housing unit log indicates that on December 15, 2000, at 8:30 a.m., Spielman entered petitioner's housing unit for a professional visit. Although petitioner claims the court cannot infer from this that Spielman actually met with petitioner, the court notes that petitioner bears the burden of proof in this matter, yet chose not to call Spielman as a witness.
DISCUSSION
"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 petitioner's claim if he fails to meet either prong . . ." Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 205-06, cert. denied, 270 Conn. 914 (2004).
The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1994). "In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, cert denied, 273 Conn. 936 (2005). "Because of the difficulties inherent in making [this] 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, cert. denied, 268 Conn. 907, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, supra, 466 U.S. 687; see also Copas v. Commissioner of Correction, supra, 234 Conn. 154-55. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799.
"Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . . "(Internal citations and quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002).
A.
Petitioner first claims that Hess' pretrial and trial performance were deficient in that he failed to: conduct an adequate investigation; present the testimony of Andre Martinez; and present evidence that the petitioner was not guilty of the offenses of which he was being accused.
At the habeas trial, petitioner presented evidence that Hess did not contact Martinez to determine his availability to testify on petitioner's behalf and that he did not present Martinez's exculpatory evidence at petitioner's trial.
As noted previously at the time of his arrest, Martinez gave a written confession to Stamford police implicating himself and petitioner in four or five burglaries. Since petitioner was charged with five counts of conspiracy to commit burglary, as part of pretrial discovery, Hess would have received a copy of Martinez's confession. Martinez now claims that if Hess had contacted him, Martinez would have repudiated his confession, exculpated petitioner and testified on behalf of petitioner.
Practice Book § 40-11(6).
At the time of petitioner's criminal trial, Martinez's burglary cases were still unresolved and pending in the judicial district of Stamford/Norwalk. In those matters, Martinez was represented by his own defense counsel. It is reasonable to assume, therefore, that Martinez's attorney would have advised Martinez not to testify at petitioner's criminal trial as his testimony would have exposed him to cross examination by the state and possible arrest for perjury. In sum, in testifying for petitioner, Martinez had everything to lose but nothing to gain.
Assuming, however, that Martinez had testified, the value of Martinez's testimony to petitioner would have rested on the jury's assessment of Martinez's credibility. At a minimum Martinez's credibility would have been impeached by his seventeen prior felony convictions and the fact that his trial testimony was inconsistent with his confession. It is also likely that Martinez's written confession implicating petitioner would have been admitted by the trial court as an inconsistent statement. Not only is it highly unlikely that the jury would have found Martinez credible, but it is also likely that the unsavory Martinez would have harmed petitioner's chances in front of the jury. This court, therefore, is unable to conclude that Hess' performance was deficient for failing to present Martinez's testimony. Additionally in light of petitioner's own confession admitting to all five of the charged burglaries, it is also highly likely that the verdict would have been the same.
At the habeas trial, Martinez admitted as much.
Petitioner next claims that Hess failed to conduct an adequate investigation. The only evidence presented at the habeas trial in support of this claim consisted of the allegation that Hess did not attempt to contact Martienz to determine if he would testify on petitioner's behalf. For the reasons stated above even if Hess could be found deficient in not making efforts to contact Martinez, it is highly unlikely that a jury would have found his testimony credible or persuasive or that the jury's verdict would have been different. That claim must, therefore, fail.
Petitioner next claims that Hess failed to present evidence that petitioner was not guilty of the offenses of which he was being accused. To establish this claim, petitioner must affirmatively demonstrate to this court that there in fact is evidence that supports such a defense. Then petitioner must also show that Hess failed to present such exculpatory evidence. Over and above Martinez's evidence discussed previously, petitioner has done neither, most critically not the former. Consequently, that claim also fails.
B.
Petitioner also asserts two claims arising from the presentence investigation report. First, that Hess failed to review the presentence investigation report with petitioner prior to sentencing; and second, that he failed to move the trial court for a corrected presentence investigation report. A related claim is that Hess failed to adequately argue for a lesser sentence during the sentencing hearing.
At the habeas trial, petitioner failed to present any evidence, aside from his own testimony, that Hess did not review the PSI with him. It is clear from the sentencing transcript that Hess read the PSI prior to sentencing and incorporated references to it when he addressed the sentencing court. Further the sentencing transcript also shows that petitioner himself referenced the PSI when he addressed Judge Nigro, a fact that belies petitioner's testimony before this court and further undermines his credibility.
The petitioner stated the following to Judge Nigro: ". . . I ask the courts to give me the help that I need — Show leniency upon my sentence today. Therefore, I ask the Court to consider all that is possible, in my PSI, and my — in my CADAC reports and see the help that I need." Petitioner's Exhibit 1 (Tr. Jan. 30, 2001), at 8.
Next petitioner claims that the PSI contains numerous inaccuracies which Hess failed to correct. Specifically petitioner claims that the following statements in the PSI are not accurate: that he had no relationship with his parents until his teenage years; that he presently has no relationship with his father and a limited relationship with his mother; that he has no plans to get an education; that his prescribed psychiatric medications are helping with respect to his paranoia; that he was using drugs at the time of these offenses; and that he was part of a prison gang in 1992.
Petitioner must also show that these errors, individually or cumulatively, somehow affected the sentence he received. Petitioner's assertions to the contrary, the court finds it extremely unlikely that the errors identified in the PSI would have had any bearing or impact on the sentence imposed by the court. Notably in its remarks justifying the length of the sentence imposed, the court did not rely upon any of the alleged errors in the PSI, but rather cited petitioner's lengthy criminal history, his decision to go to trial and the nature of the present charges. Thus, petitioner has failed to prove how, if at all, any errors in the PSI influenced the sentencing court. The claims pertaining to the errors in the PSI are, therefore, without merit.
As to the claim that Hess failed to adequately argue for a lesser sentence during the sentencing hearing, petitioner presented no evidence in support of this claim and so it, too, fails. As set out in the PSI, at the time of sentencing, petitioner was thirty-one years of age. Since 1985, petitioner had sixteen prior criminal convictions; and many of these convictions were for offenses similar to the burglaries for which he had been convicted at trial. Petitioner had on several prior occasions been placed on probation, but each and every one of those probations had been violated and the suspended portion of his sentences put into execution. The evidence also showed that petitioner was out of jail for only seventeen months before the commission of the instant five offenses. The PSI, which the court read prior to sentencing, also outlined petitioner's extensive drug, alcohol and psychiatric histories; the fact that he had had prior drug and psychiatric treatment; that he was the product of a severely dysfunctional upbringing; that he never completed his high school education; and that he had virtually no employment history.
Petitioner turned sixteen in 1985.
At sentencing, Hess pointed out to the court petitioner's disadvantaged childhood, his history of substance abuse, the fact that just prior to the burglaries, petitioner had been able to stay drug-free for a period of time and his present employment. Hess asked the court for a minimal period of incarceration to be followed by probation with a special condition of drug treatment. When petitioner addressed the Court, he also cited his drug and psychiatric problems, acknowledged that he needed to be punished for the burglaries and requested drug and psychiatric treatment.
Hess cannot be blamed for the length of petitioner's sentence. Hess expended his best efforts to put petitioner before the court in the best possible light. It was petitioner, not Hess, who chose to go to trial. This necessitated that each victim of the five burglaries testify and, thereby, relive in detail the violation of the sanctity of their home and the loss of numerous items of their personal property. Indeed the court cited the fact of petitioner's trial as one of the justifications for the sentence it imposed. Likewise, Hess cannot be blamed for petitioner's sixteen prior convictions, his non existent employment history, his history of half hearted efforts to deal with a significant substance abuse problem or the fact that he reoffended seventeen months after his release from his most recent incarceration. The sentencing court in petitioner's case justifiably recognized that the protection of society necessitated a lengthy period of incarceration. Accordingly this claim must also fail.
C.
The final claim that needs to be addressed is that Hess failed to file an application for review of petitioner's sentences. The length of petitioner's sentences made him eligible under Gen. Stat. § 51-195 to apply for sentence review. The sentencing court advised petitioner of his right to sentence review and the clerk provided him with written notice thereof. At that time Judge Nigro informed petitioner that he should ". . . follow whatever advice [his] counsel gives [him] with regard to that." The only evidence presented at the habeas corpus trial as to this claim was the joint stipulation that no application for sentence review was ever filed and petitioner's testimony that Hess never discussed the option of filing for sentence review.
In Valentin v. Commissioner of Correction, 94 Conn.App. 751, 758, 895 A.2d 242 (2006), the Appellate Court recently addressed a claim of ineffective assistance of counsel arising out of the failure to pursue sentence review. Specifically in Valentin, the Appellate Court found no deficient performance where trial counsel had discussed with the defendant the advantages and disadvantages of sentence review and, thereafter, at the defendant's request, did not file a sentence review application. A notable distinction in Valentin is the fact ". . . that the petitioner voluntarily decided to forgo applying for sentence review on the basis of the advice he received from [his attorney]." (Internal quotation marks omitted.) Unlike Valentin in the present matter, however, there is no evidence that Hess gave petitioner any advice or even discuss with him the matter of sentence review.
No Connecticut appellate case has thus far addressed the issue of whether the failure of counsel to discuss with a defendant his right to sentence review constitutes deficient performance. The right to sentence review is a statutory right, as is the right to appeal from a criminal conviction. Thus the Supreme Court's decision in Ghant v. Commissioner of Corrections, 255 Conn. 1 (2000) setting forth the parameters of counsel's duty to advise a defendant of his right of appeal provides guidance for this court's decision in the area of sentence review.
See, e.g., State v. James, 261 Conn. 395, 404 n. 12, 802 A.2d 820 (2002).
"The two part Strickland test `applies to claims . . . that counsel was constitutionally ineffective for failing to file a notice of appeal . . . [N]o particular set of detailed rules for counsel's challenged conduct can satisfactorily take account of the variety of circumstances faced by defense counsel . . . Rather, courts must judge the reasonableness of counsel's challenged conduct on the facts of a particular case, viewed as of the time of counsel's conduct . . . and [j]udicial scrutiny of counsel's performance must be highly deferential.' . . ."
"In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking . . . whether counsel in fact consulted with the defendant about an appeal. We employ the term consult to [mean] . . . advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. 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 . . . If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance . . . And, while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented . . . the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices . . ." (Emphasis removed.) DuPerry v. Kirk, 90 Conn.App. 493, 511-13 (2005), cert. denied, 277 Conn. 921 (2006), citing and quoting Ghant v. Commissioner of Correction, supra, 255 Conn. 8-9.
This court concludes that the appropriate standard to apply is the one enunciated in Ghant. In the present case, Hess did not advise the petitioner about the advantages and disadvantages and did not make a reasonable effort to discover his wishes. Having found that Hess did not consult with petitioner, this court must go on to determine whether Hess's failure to do so constitutes deficient performance.
"The United States Supreme Court has rejected a bright line test that would require counsel always to consult with a defendant regarding an appeal . . . The court held that counsel 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. In making this determination, courts must take into account all the information counsel knew or should have known . . . Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal." (Emphasis in original.) (Internal citations and quotation marks omitted.) DuPerry v. Kirk, supra, 90 Conn.App. 513.
"The defendant also must demonstrate prejudice. To show prejudice when counsel fails to apprise a defendant of his or her appellate rights, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed . . . Whether a given defendant has made the requisite showing will turn on the facts of a particular case . . . Evidence that there were nonfrivolous grounds for 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., at 513-14.
Because there is no evidence indicating that petitioner reasonably demonstrated to Hess that he was interested in sentence review, the court must determine whether there was reason to think that a rational defendant would want to pursue sentence review. This determination requires an assessment of the merit of petitioner pursuing sentence review.
Petitioner was sentenced to a total effective sentence of twenty years to serve on five counts of burglary in the third degree. Burglary in the third degree is a Class D felony. In accordance with Gen. Stat. § 53a-35a(7), the maximum sentence for each of the five counts was five years to serve. Thus, the petitioner's maximum exposure on five counts of burglary in the third degree was twenty-five years to serve. While the sentencing court did not impose the maximum possible sentence, the sentence imposed comes relatively close to the maximum the court could impose in accordance with the law. The fact that the sentencing court imposed less than the maximum is important, for the Sentence Review Division can increase and not just decrease sentences meted out by sentencing courts. Additionally, the decisions of the Sentence Review Division are final, that is, no appeal may be taken.
General Statute § 53a-103.
See Gen. Stat. § 51-196(a).
See Gen. Stat. § 51-196(d).
A likely or significant risk that the sentence would be increased would, of course, militate and warrant advising a client not to pursue sentence review. Here, petitioner received a lengthy sentence (twenty out of a possible twenty-five years) and the probability that the Sentence Review Division would increase the sentence is minimal. The court finds that, given the specific facts of the present case, there is reason to believe that a rational defendant would have wanted to pursue sentence review. Therefore, Hess had a duty to discuss sentence review with petitioner. The failure to advise petitioner about the advantages and disadvantages of applying for sentence review and to make a reasonable effort to discover petitioner's wishes satisfies the Ghant test and therefore this court finds that Hess's performance was deficient.
As to the required showing that petitioner was prejudiced thereby, the merit of pursuing sentence review cannot be measured the same way as can an appeal. The assessment instead turns on the length of the imposed sentence and the probability that the Sentence Review Division would increase the sentence. As noted above, it is unlikely that the Sentence Review Division would have increased petitioner's sentence. The court finds, therefore, that pursuing sentence review would not have been frivolous and that the required showing of prejudice has been made.
The petition for a writ of habeas corpus is denied as to all claims except as to the claim that petitioner received ineffective assistance of counsel regarding sentence review. The petition is granted to the extent that petitioner's right to file an application for sentence review is restored for thirty (30) days from the date of this decision. Petitioner's counsel is ordered to prepare and file a judgment file within thirty (30) days.