Opinion
CV154007214
11-02-2018
George Owusu v. Warden, State Prison
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson, Judge
I. Procedural History
From the allegations in the amended petition, the petitioner was the defendant in a matter pending in the Judicial District of Middlesex and Middletown under docket no. CR09-0186268. At all times relevant to the claims in the petition, he was represented by Attorney Christopher G. James. On October 20, 2009, on the advice of counsel, the petitioner entered pleas of guilty to Possession of Narcotics (Cocaine) with Intent to Sell, in violation of General Statutes § 21a-278(b), Possession of Cocaine with Intent to Sell within 1500’ of a Public School, in violation of Genera Statutes § 21a-278a(b), and Criminal Possession of a Firearm, in violation of General Statutes § 53a-217. On December 22, 2009, the petitioner was sentenced to a total effective sentence of 8 years to serve, followed by 5 years of special parole.
The petitioner commenced the present action by filing a petition for writ of habeas corpus on about May 14, 2015. The matter was tried before the court on July 12, 2018. Count Two of the petition alleges a claim of actual innocence. Prior to the commencement of evidence, the Court raised the issue pursuant to Practice Book § 23-29 of whether Count Two of the petition should be dismissed, given this Court’s decision in the matter of Bobby Johnson v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV11-4003874 (Newson, J., October 7, 2013) (Holding that a guilty plea constitutes a waiver of the right to later claim actual innocence and, alternatively, that a claim of actual innocence following a guilty plea fails to state a claim upon which relief can be granted, because a petitioner who has entered a guilty plea and knowingly, intelligently and voluntarily waived his right to fully explore the State’s evidence cannot, as a matter of law, establish that alleged evidence of his innocence "could not have been discovered prior to the petitioner’s [guilty plea] by the exercise of due diligence"). The Court heard evidence on all counts, and both sides were given the opportunity to file post-trial briefs on the issue raised by the Court. Other relevant factual and procedural history will be provided as necessary throughout this decision.
II. Law and Discussion
Motion to Dismiss Count Two Pursuant to Practice Book § 23-29
The Court may, upon its own motion, move to dismiss the petition, or a count thereof. Practice Book § 23-29. When adjudicating a motion to dismiss, "a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; quotation marks omitted.) Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ..." (Citation omitted.) State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).
The petitioner attempts to distinguish this case from Bobby Johnson v. Warden, supra, by arguing that the petitioner in the present case entered his guilty pleas under the Alford doctrine. In other words, the petitioner claims that, since he "maintained" some semblance of innocence in taking the plea agreement, he should not be prohibited from pursuing a formal claim of actual innocence now. Since the record unquestionably refutes this claim, however, the court does not need to address whether entry of an Alford plea would distinguish this case. (Exhibit 1, Transcript of State v. George Owusu, October 20, 2009, p. 9, lns. 13-21.) Given the present claim of actual innocence stands on grounds nearly identical to those in Bobby Johnson v. Warden, supra, Count Two is dismissed for the reasons set forth below.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ("[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite of the imposition of [a] criminal penalty. An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime").
Even if the record did support that the petitioner had entered an Alford plea, the decision in the Diaz v. Commissioner of Correction, (October 30, 2018) (AC3965) was released shortly after the parties submitted their briefs. In that matter, a petitioner who had entered a guilty under the Alford doctrine sought habeas relief. The Court generally discussed the line of cases which stand for the precedent that "[a] plea of guilty, voluntarily and knowingly made, waives all nonjurisdictional defects and defenses in the proceedings preliminary thereto ... [and] [i]n general, the only allowable challenges after a plea are those relating to either the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction." Describing the petitioner’s case as analogous to Savage v. Commissioner, 122 Conn.App. 800, 998 A.2d 1247 (1990) (finding that a petitioner who entered an Alford plea waived the right to bring claims of ineffective assistance of counsel for failing to file a speedy trial motion and a motion to dismiss), the Court held, "[a]s our case law makes clear, an Alford plea effectively waives a petitioner’s right to claim a constitutional defect unrelated to the plea." So, while a petitioner may not have explicitly admitted to the facts alleged during the plea canvas, the scope of the waiver resulting from an Alford plea remains the same in scope. Diaz v. Commissioner of Correction, supra, (AC3965).
"[O]ur expectations [are] that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants’ admission that they committed the crimes with which they are charged." Tollett v. Henderson, 411 U.S. 258, 263-64, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). "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 ... [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ... 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 ." (Citations omitted, emphasis added, internal quotation marks omitted.) State v. Hanson, 117 Conn.App. 436, 456, 979 A.2d 576 (2009), cert. denied, 562 U.S. 986, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010).
There is nothing in the record to support, nor does the petitioner claim, a lack of jurisdiction or that his pleas were not constitutionally sound. Id. Therefore, consistent with this Court’s prior decision in Bobby Johnson v. Commissioner, the Court finds that the petitioner’s valid guilty pleas constituted a waiver of the right to bring the present claim of actual innocence. Bobby Johnson v. Warden, supra.
"[T]here is an inherent paradox in the notion that someone who has stood in open court and declared, ‘I am guilty,’ may turn around years later and claim that he deserves to pass through the actual innocence gateway. Because a guilty plea waives the defendant’s right to prove his actual innocence at trial ... a strong argument can be made that a guilty plea should absolutely foreclose a post-conviction claim of actual innocence ..." (Citation omitted.) Weeks v. Bowersox, 119 F.3d 1342, 1355 (8th Cir. 1997) (Loken, J., concurring). Where a petitioner has entered a guilty plea of his own free will and later seeks to challenge that plea absent any allegation of overreaching of the court’s jurisdictional powers, infirmity in the plea canvass, or ineffective advice of counsel, he has not alleged any "miscarriage of justice," but only a regret with his own decision not to withhold his guilty plea and insist that "justice," whatever meaning that term may have, be carried out. See Id. "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case." People v. Schneider, supra, 25 P.3d 761 ... The opportunity to simply change his mind and to exercise his rights to challenge the sufficiency of the State’s evidence is a claim the petitioner waived upon entering his plea before the trial court admitting his guilt and for which habeas relief is not available. D’Onofrio v. Commissioner of Correction, supra, 36 Conn.[App. 691, 693-94, 652 A.2d 1058 (1995) ].(Citation omitted.) Bobby Johnson v. Warden, supra, *6. "Absent any claim that the Court lacked the authority to adjudicate the case, that the plea canvas was constitutionally deficient ... the claim ... of actual innocence, stands as nothing more than an after-the-fact challenge to the sufficiency of the evidence, a claim which this court finds the petitioner has waived [upon entry of his guilty pleas]." Id., *3, see also, D’Onofrio v. Commissioner of Correction, 36 Conn.App. 691, 693-94, 652 A.2d 1058 (1995) (holding that collateral attack on applicability of escape statute to petitioner’s factual circumstances was waived upon entry of a valid guilty plea).
Alternatively, and also consistent with this Court’s decision in the Bobby Johnson v. Warden matter, the Court finds that Count Two of the petition fails to state a claim upon which relief can be granted. The substance of the petitioner’s claim of actual innocence is that he only discovered after his plea that the State did not have sufficient evidence to prove that he specifically intended to sell cocaine within 1500’ of a public school, which is an essential element of General Statutes § 21a-278a(b). "[A] claim of actual innocence must be based on newly discovered evidence ... [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ... This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence." (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007).
First, the petitioner’s claim that he was unaware that intent to sell the cocaine specifically within 1500’ feet of a public school was an essential element of § 21a-278a(b) is not credible, because that specific element was addressed during his plea canvas and he answered that he understood it. This Court is allowed to rely upon that answer as truthful. Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). Second, this information is not, as a matter of law, evidence that could not have been discovered, despite the exercise of due diligence, prior to the time the petitioner entered his pleas. While reports, statements, and other evidence in the possession of the State, or previously unknown witnesses are clearly things over which reasonable minds may disagree on their discoverability by a criminal defendant, it is beyond dispute that one always has personal knowledge of their own intent. Therefore, this was not evidence that the petitioner would have needed "due diligence" to discover, because he always possessed it. See Conn. Crim. Jur. Instr. 2.3-2 Evidence of Intent. Further, as this Court has previously ruled, the decision to enter a guilty plea represents more than just a conscious decision to forfeit the opportunity to challenge the State’s evidence. One who "knowingly, voluntarily, and intelligently" enters a plea of guilty also consciously relieves the State from its ongoing obligation to disclose potentially exculpatory materials that may be discovered during the course of the prosecution; see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Practice Book § 40-11(b); and also the ability to investigate and uncover their own exculpatory evidence. Therefore, a petitioner who has previously entered a constitutionally sound guilty plea and later asserts a claim of actual innocence has not been "unable ... despite the exercise of due diligence" to discover evidence that may have established the petitioner’s actual innocence, but instead made a "knowing, intelligent, and voluntary" decision to waive the opportunity to exercise that due diligence. See Bobby Johnson v. Warden, supra, *4.
In conclusion, the Court finds that the petitioner’s alleged lack of understanding of the intent the State was required to prove in order to convict him of violating General Statutes § 21a-278a(b), does not, as a matter of law, constitute "newly discovered" evidence within the meaning of our actual innocence jurisprudence. Johnson v. Commissioner of Correction, supra, 101 Conn.App. 470-71. As such, Count Two is dismissed on the alternative grounds that the petitioner has also failed to state a claim upon which habeas relief can be granted. Bobby Johnson v. Warden, supra .
Although it is not necessary for the Court to reach the merits of the claim, given the dismissal, it should be noted that the respondent did raise the special defenses of waiver and failure to state a claim upon which relief can be granted to Count Two in its return. So, even if dismissing Count Two were subsequently found to be procedurally improper, the Court would have reached the same conclusions on the merits and ruled in favor of the respondent on either of their defenses. Id.
Count One- Ineffective Assistance of Counsel
The petitioner claims in Count One that his trial counsel was ineffective in his representation. Interestingly, the claim is specifically limited to counsel’s representation and advice as it relates to the charge of Possession of Cocaine with Intent to Sell within 1500’ feet of a School. (Amended Petition, August 3, 2016, ¶6(A)-(E).) The petitioner makes no claims regarding counsel’s representation as to the other two charges he pled guilty to.
In fact, during his cross examination before this Court, the petitioner testified that he would still plead guilty to Possession of Cocaine with Intent to Sell, in violation of General Statutes § 21a-278(b) and Criminal Possession of a Firearm, in violation of General Statutes § 53a-217.
"The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ " Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing.McMann v. Richardson, 397 U.S. 759, 769-70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). "[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled." Id., 685.
"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 [supra, 397 U.S. 769-70]." (Internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. at 56-57. "[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). In the present case, the Court finds that counsel met his constitutionally required duties to the petitioner. Id.
First, the Court found counsel credible when he testified that he fully informed the petitioner of the evidence against him, the elements of the offenses, what the State would need to prove to establish those elements, possible defenses, if any, and potential penalties. Id. As to the specific element the petitioner claims he was unaware of, again, the transcript refutes that he was unaware that the State would have needed to prove that he specifically intended to sell the cocaine in his possession within 1500’ of a public school. (See Footnote 3.). As to the prejudice prong, the petitioner simply provided no credible evidence to support his bald claim that he was prepared to take his cases to trial. On just the charges to which he plead guilty, he was exposed to a maximum possible sentence of 29.5 years, 10 years of which could have been minimum mandatory. There were also apparently as many as eight other charges in the drug file the State agreed not to prosecute as part of the agreement. In addition to the charges in the drug file, he was also facing two violation of probation cases, one out of New Britain and another from Middletown, that were assumed into the plea deal. The New Britain probation was for possession of a weapon in a motor vehicle and could have resulted in an additional 18 months imprisonment. Records presented before this court do not indicate his exposure on the Middletown case. Finally, the petitioner also had a Larceny Third Degree charge pending against him, for allegedly stealing a laptop computer subsequent to his drug arrest, which could have exposed him to an additional 5 years. So, when you add in the known exposure on the New Britain VOP and Larceny 3rd charge, the petitioner’s maximum possible exposure increases to 36 years incarceration, 10 years of which could have been minimum mandatory. Viewed in light of his overall potential exposure, the petitioner’s insistence that he would still plead guilty to the other charges against him, but only sought to challenge the three-year consecutive sentence required by the Possession of Cocaine with Intent to Sell within 1500’ of a Public School charge lacks credibility. Further, there was no evidence whatsoever presented to support a claim that the offer made to the petitioner was not a package deal. In other words, the State agreed not to prosecute a number of charges in exchange for the petitioner’s pleas to those he now stands convicted of. There has been no evidence presented that the State was willing to agree to, or that the Court willing to accept, a plea that parsed out a single charge to proceed to trial.
General Statutes § 53a-124. Larceny in the third degree, is classified as a Class D felony.
In sum, given the facts and circumstances of this case, the Court finds that counsel met his constitutionally required duties under all the circumstances then present to negotiate a fair plea deal for the petitioner, and that he appropriately advised the petitioner on his decision to enter into this plea agreement. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. More importantly, the Court finds the pleas entered by the petitioner were done so "knowingly, intelligently, and voluntarily." As to prejudice, there is nothing credible in the record before this court to indicate the petitioner was willing to risk a potential jail sentence more than four times his negotiated plea deal in order to challenge a single charge. Id. As such, these claims fail.
Count Three- Violation of Due Process
The petitioner alleges in the third count that his due process rights were violated, because his plea was not knowingly, voluntarily, and intelligently entered. The respondent has raised the defense of procedural default. "When a habeas petitioner has failed to file a motion to withdraw his guilty plea or to challenge the validity of the plea on direct appeal, a challenge to the validity of the plea in a habeas proceeding is subject to procedural default." Fitzgerald Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). In the present case, the petitioner concedes that he never attempted to withdraw his guilty plea pursuant to the rules of practice or to appeal it. "Accordingly ... his claim was procedurally defaulted." Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008).
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED. Judgment shall enter in favor of the RESPONDENT.
"THE COURT: You also plead to possession of narcotics with the intent to sell within 1,500 feet of a school, that means that you possess a narcotic with the intent to sell it and with the intent to sell it within 1,500 feet of a public or private elementary or secondary school ... Do you understand that? THE DEFENDANT: Yes."(Emphasis added.) Exhibit 1, Transcript of State v. George Owusu, October 20, 2009, p. 8, lns. 3-8.