Opinion
No. TSR CV09-4002955-S
November 14, 2011
Memorandum of Decision
Petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus filed March 17, 2009. A special public defender was appointed to represent him on or about February 25, 2010. An amended petition was filed by counsel on December 23, 2010, alleging ineffective assistance of counsel regarding the entry of a guilty plea. Respondent filed a return on February 16, 2011, generally denying the material allegations of the petition, and setting forth as special defenses petitioner's failure to state a claim upon which habeas relief legally may be granted, and, an alleged deficiency of petitioner's prayer for relief. Petitioner's reply was filed February 22, 2011, denying the allegations of the special defenses.
Petitioner was arrested on October 13, 2004. He was charged in the Judicial District of Ansonia/Milford at Milford (Docket No. AAN CR 04 0053725), as follows: Robbery in the First Degree under General Statutes § 53a-134(a)(2); Conspiracy to Commit Robbery in the First Degree under §§ 53a-48 and 53a-134(a)(2); Carrying a Pistol Without a Permit under § 29-35(a); Assault in the Second Degree under § 53a-60; Larceny in the Second Degree under § 53a-123; and Conspiracy to Commit Larceny in the Second Degree under §§ 53a-48 and 53a-123.
Initially, Attorney Angelica Papastravros was appointed as a special public defender to represent petitioner in the Milford case. On or about April 15, 2005, petitioner retained Attorney Justin Smith to represent him in place of Attorney Papastravros.
On June 27, 2005, the petitioner entered a plea of guilty to one count of Robbery in the First Degree, pursuant to the following plea agreement: twenty years, execution suspended after ten years as a "cap," with a right to argue for less, but not to go below the statutory minimum of five years, with a period of probation to be determined by the court. The trial court conducted a plea canvass (according to Practice Book § 39-19) and accepted the guilty plea, finding that the petitioner's plea was entered knowingly and voluntarily, with the assistance of competent counsel, and that there was a factual basis for the plea. A presentence investigation was ordered and on September 29, 2005, the Court, Carroll, J., after considering the presentence report (PSI), along with the oral arguments of the attorneys for the State and the defendant, sentenced petitioner to twenty years incarceration, execution suspended after nine years, with five years probation. Petitioner remains in the custody of respondent under the imposed sentence.
The trial on the habeas petition was held before this court on July 15, 2011. Two witnesses, petitioner and Attorney Justin Smith, testified and several transcripts and documents were entered in evidence as full exhibits.
It is petitioner's claim that his defense counsel's acts and omissions fell below the standard of reasonable care in the practice of criminal law, and that, but for those acts and omissions, it is reasonably probable that the results of the proceedings in the trial court would have been different. Specifically, the allegations contained in the petition are that his trial counsel failed to: (1) adequately advise him regarding the consequences of his pleading to a cap of ten years versus pleading to an alternatively agreed upon eight year sentence; (2) investigate the existence of an "original" six year offer; (3) request the reinstatement of the "original" six year offer; (4) advise the petitioner regarding the "original" six year offer; (5) ensure that the petitioner's pleas were knowingly, voluntarily and intelligently entered into; (6) properly communicate with him (petitioner) by providing requested documents in order to make an informed decision; and (7) to file for sentence review.
The petition is denied as to all claims except the failure to file for sentence review.
Factual Basis for Guilty Plea.
From the documentary evidence admitted at the habeas trial, the court finds the following factual basis for petitioner's guilty plea on June 27, 2005. On October 13, 2004, petitioner was present at the Connecticut Post Mall in Milford, with two codefendants, McMillan and Ramos. At a little past noon on that day, the three met up with the victim, Donald Louther. Pictures from a security camera show all three codefendants surrounding the victim and attacking him. The victim was hit over the head with a gun, and the perpetrators took jewelry from his person. All three perpetrators then fled into the Stop Shop Supermarket directly across the street, behind the mall. The three were subsequently arrested in the Stop Shop; petitioner was found hiding in one of the stalls of a public restroom. A gun, subsequently tested and found to be an operable firearm, was found in a trash receptacle located within the said public restroom.
Legal Authorities.
"[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with the guilty pleas are set forth in Strickland [ v. Washington, 466 U.S. 668, 104, S.Ct. 2052, 80 L.Ed.2d 674 (1984),] and Hill [ v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985] . [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing 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 . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate 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 . . . In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 782-83 (2010), cert. denied, 299 Conn. 928 (2011).
Proceedings in the Superior Court, Judicial District of Ansonia/Milford at Milford.
The transcripts admitted in evidence at the habeas trial fully document the progression of petitioner's criminal case, from arraignment through sentencing, in the Milford Superior Court. After his October 13, 2004, on-sight arrest, petitioner was arraigned October 14, 2004, at which time he was represented by Attorney Leslie Cavanagh who requested the appointment of a special public defender; bond was set and the case was continued to October 18 for "Part A review." The next transcript admitted in evidence (Exhibit #2) is dated October 28, 2004; special public defender Angelica Papastavros stated she represented petitioner, requested that his presence be waived, and the case was continued to November 15, 2004, the Assistant State's Attorney commenting, "Part A Review Date of, Your Honor, from the previous one, 11/15." On November 15, 2004, petitioner was present, he was represented by Attorney Papastavros and the case was transferred to Part A for December 6, 2004. Petitioner was not present in court on December 6; Attorney Papastavros indicated she would advise petitioner that the case was continued to January 3, 2005, and it was noted on the record that Mr. Donald Louther, the victim, had filed with the clerk a motion for return of property — "a great deal of jewelry." On January 3, 2005, Attorney Papastavros was present, it was observed that no pleas had been entered, pro forma not guilty pleas and a jury election were noted by the court, and the matter was continued, along with the cases of the two codefendants, to February 2, 2005; further, it was put on the record that the State's Attorney's Office was working on having the video from the mall enhanced, and was also making victim contact. On February 2, 2005, it is not clear from the transcript whether petitioner was present in the courtroom, but the case was continued to March 2, Attorney Papastavros apparently having "had an opportunity to review those photographs," and not objecting to the continuance.
The March 2, 2005, transcript indicates that petitioner, along with State's Attorney Galvin, and Attorney Papastavros, was present; the court noted that the Derek Person case was at line ten of the pretrial list. Attortney Galvin stated: "[W]e are getting victim input Your Honor and will be ready to put together an offer. At least one of the defendants has asked for one. So, if we could have a brief continuance, we will be in contact with the victims and the owner gets a formal motion [return of property] filed, so we can try and take appropriate action on that." The court and the attorneys agreed on a continuance date of March 23, 2005.
On March 23, 2005, the case appeared as line twelve on the pretrial list; the transcript reflects petitioner's presence in court. State's Attorney Galvin stated: "This is State versus Person, Your Honor. This matter was discussed with counsel this morning and I believe we have a joint request for April 11th to see whether we can work toward disposition of this matter." Attorney Papastavros addressed the court: "Thank you. This matter was discussed with sister counsel earlier this morning. There is an offer on the file as Your Honor knows. I have conveyed that offer to my client and discussed all his options and what the charges are and what they entail. And we are requesting the 11th so that my client can consult with either myself and his family."
The April 11, 2005, transcript reads, in pertinent part, as follows: "The Court: Derek Person. In this matter a new attorney has entered his appearance . . . Attorney Smith . . . The matter was discussed in chambers, the offer has not changed in that matter. It was . . . [down] today to accept or reject an offer. Attorney Smith has requested an additional period of time, in as much he is new in the case, so that he can discuss the offer with his client. I have granted that request and that matter is continued to May 2nd."
On May 2, 2005, the case was marked to June 6, the court stating: "Mr. Person is at line 14. That was discussed in chambers with Ms. Galvin and Mr. Smith and it is continued to June 6th." On June 6th, the case was continued to June 8th by agreement due to a scheduling conflict on the part of Attorney Smith.
On June 8, 2005, Assistant State's Attorney Lawlor was present in court, along with Attorney Smith. Attorney Smith informed the court that he had not had a chance to speak to the State's Attorney and the court indicated the case would be marked ready. Attorney Lawlor advised the court: "I believe it is Miss Galvin who is handling that matter . . . [s]o it may be something — I know Attorney Galvin is not here today perhaps we can continue that matter to June 27th which is the day that her other matters went over to." The court then inquired: "Well it was . . . [down] to accept or reject an offer. Do you know what your client's pleasure is now?" Attorney Smith stated: "Well, there have been some complications, Your Honor and I do need to speak with Miss Galvin, I think, regarding that."
On June 27, 2005, it was reported to the court that prior pleas and election were being withdrawn, and petitioner was put to plea on a substitute information charging Robbery in the First Degree in violation of General Statutes § 53a-134(a)(2). Following the guilty plea, the state's attorney recited in length, and in detail, the factual basis for the plea, and the court conducted a thorough and incisive canvass of petitioner. The petitioner, in response to the court's inquiries, agreed with the facts as stated, acknowledged that he had adequate time to discuss the case and the decision to plead guilty with Attorney Smith, and stated that he had gone over with the attorney all of the State's evidence establishing his involvement in the robbery. The petitioner further indicated that he had discussed with Attorney Smith the nature and elements of the crime — what the State would have to prove in order to convict him of this offense if he elected to go to trial — and that he understood the maximum penalty under the statute, as well as the nonsuspendable mandatory minimum. Petitioner stated that he was satisfied with Attorney Smith's representation, and that he was entering the guilty plea voluntarily because he acknowledged he was guilty of the charge. In the canvas, the terms of the plea agreement were placed on the record, petitioner stating that he understood that agreement. Additionally, it was explained to petitioner that once the guilty plea was accepted, it could not be withdrawn except by leave of the court. When asked if there was anything he did not understand, petitioner answered, "I understand everything so far." And, when asked if he needed anymore time to talk to his lawyer about anything, he answered, "No, Sir." As stated, the court accepted the guilty plea, finding that it was entered knowingly and voluntarily, with the assistance of competent counsel, and that there existed a factual basis. A presentence investigation was ordered and the case was continued for sentencing to August 24, 2005.
The charge to which the plea of guilty was entered was read in the record, as follows: "[The] State's Attorney . . . charges that in the City of Milford, on the 13th day of October 2004, at approximately 12:52 p.m., in the area of the Connecticut Post Mall, 2201 Boston Post Road, the said Derek Person did commit a robbery, and in the course of the commission of the crime, or immediate flight there from, he or another participant in the crime, was armed with a deadly weapon, in violation of Connecticut General Statute [§ ]53a-134(a)(2)."
The transcript of the plea canvass reads: "The Court: Did you further discuss with him [the attorney] the nature and elements of the offense? By that I mean has Mr. Smith explained to you what the State would have to prove to convict you of this offense if you elected to go to trial, and has he further explained to you that, as charged, this is a Class B felony, punishable by up to [twenty] years in jail, of which [five] years is a mandatory minimum, non-suspendable, sentence? Has all that been explained to you by your attorney? The defendant: Yes, Sir."
The court stated: "Now, you've entered into this plea agreement with the understanding that on the date of sentencing, I'm going to impose a sentence that will not be greater than [twenty] years suspended after service of [ten] years, followed by [five] years of probation, with certain special conditions that I will determine at the time of the entry of the sentence. Is that your understanding of the plea agreement?" Petitioner answered: "Yes, Sir." Petitioner also acknowledged that no promises had been made to him except that the sentence of the court would not be greater than twenty years suspended after ten, with the right to argue for a lesser sentence reserved to petitioner and his attorney.
The sentencing proceeding actually took place on September 29, 2005. The record reflects that Attorney Smith had filed a sentencing memorandum, attached to which were a number of letters supportive of petitioner. At the sentencing hearing, the State's Attorney gave the court a particularly detailed account of the crime, its manner of commission, the use of an operative gun, and petitioner's active complicity in the use of violence against the young victim. She also discussed petitioner's background, his young age, and addressed the fact that although he did not have an adult criminal record, he was not unknown to the Juvenile Court system. The State's Attorney stressed the seriousness of the crime: the commission of an armed robbery, the use of a fully operative firearm, in the middle of the day, in the highly populated area of the Milford Mall, with the Super Stop and Shop right across the way, and the dreadful, dangerous risk that such criminal conduct posed to other persons, of all ages, at that busy location at that time of day. The State's recommendation, consistent with the agreement's cap, was an imposed sentence of twenty years, execution suspended after the service of ten years, followed by probation with certain special conditions (several of which were accepted and imposed by the court).
The reason for the continuance from, or a modification of, the August 24 sentencing marking is not contained in the record presented to this court.
Attorney Smith, while acknowledging the seriousness of the crime, spoke in mitigation referring to petitioner's age, the instability of his upbringing, his participation in Job Corps, his working toward a GED and getting a trade license, his letter to the court expressing remorse, and his supportive family as evidenced by the documentation submitted. After being briefly interrupted, and then conferring with his attorney, petitioner exercised his right of allocution in a more concise, germane fashion, apologizing to the victim and to the town of Milford, and stressing the sincerity of the content of his letter.
The attorney asked that the court "fashion a sentence that will weigh the interests of society and the deterrence and punishment of Mr. Person against who Mr. Person was before this crime occurred and who he can be."
The court, after considering and weighing the comments of counsel, petitioner's statement, the comprehensive presentence report, and the documentation presented (including Attorney Smith's sentencing memorandum and supporting letters) sentenced petitioner, as follows: "commitment to the [c]ommissioner of [correction] for a period of twenty years, execution suspended after the service of nine years, of which five years is a mandatory minimum, nonsuspendable component . . . thereafter . . . probation for a period of five years." In addition to the standard conditions of probation, the court adopted, and imposed, the special conditions recommended in the presentence report, including: submit to any substance abuse evaluation, treatment, and random testing as deemed appropriate by the department of adult probation; complete GED while on probation; seek and maintain full-time, verifiable employment throughout the period of probation; and, no contact with the victim or any of the codefendants.
The sentencing court articulated in detail its reasons (including a weighing of the aggravating and mitigating factors) underlying the sentence imposed. Included in the court's statement was the observation that: "People have to know that they can safely and comfortably go into a mall or go to a Stop and Shop store and not have to be confronted by young men who are there with guns engaging in criminally violent conduct."
Immediately following imposition of the sentence, the clerk stated: "Thank you, your Honor. Let the record reflect I'm giving the defendant notice of right to have a sentence review and application for review of sentence, a notice of application, and a DNA analysis form."
Petitioner's Claims of Inadequate Representation.
A. Petitioner first alleges that Attorney Smith inadequately advised him "regarding the consequences of his pleading to a cap of [ten] years versus pleading to an alternatively agreed upon [eight] year sentence." Attorney Smith testified, credibly, that after he filed his appearance in lieu of that of Attorney Papastravos, he met with her briefly and discussed the case. Attorney Smith testified that he thinks he was advised of alternative offers — "either a set amount of time or a range." Shortly thereafter he reviewed the entire State's file, took notes of the contents thereof, and met with the State's Attorney regarding the case. Notes in Attorney Smith's file reflect the alternative offers but he does not know "whether the notes were taken after his discussions with Attorney Papastravos or with the State's Attorney." The offers, as reflected in the attorney's notes, were, as follows: twenty years suspended after eight, as an agreed upon sentence followed by an unspecified period of probation; or, in the alternative, twenty years suspended after ten as a cap with the right to argue to a floor of five years, and probation. Attorney Smith testified that he advised petitioner of these alternative offers.
Attorney Smith testified that although he does not think he filed a motion for disclosure, he "sat down in the State's Attorney's Office . . . [t]hey have kind of a little side office, and I sat down there and reviewed the file and took notes . . ." The attorney also testified he discussed "with Mr. Person the contents of the State's file based on [his] notes and [his] review of the State's file." He testified, perfectly credibly, that he reviewed all of the State's evidence against his client, took notes and reviewed it, and then discussed it with petitioner. Such is certainly consistent with petitioner's acknowledgment during the plea canvass that he discussed with his lawyer all of the evidence the State claims it had establishing his involvement in the robbery.
With regard to the criminal charge, the attorney testified: "I believe it was either pleading to robbery one or conspiracy to commit robbery one."
Attorney Smith testified, again entirely credibly, that he discussed the two plea options fully with petitioner. He indicated that based on his review of the evidence in the State's file, he "did not like our chances at trial given all of the circumstances." With regard to the selection of the right to argue, the attorney testified he felt "we could probably do better than the eight . . . if we took the range," but, that it was petitioner's choice on whether or not to plead guilty, and if petitioner decided to do so, which of the two plea offers to accept, a flat eight or ten with a right to argue down to five. Attorney Smith testified he preferred "the range," but petitioner was told there was "a risk they could get the top of the range."
When asked if petitioner ever stated to him that he was innocent of the charges, the attorney answered: "Not that I can recall." Petitioner testified he was "coerced" into pleading guilty, that is, to accept one or the other of the plea agreements — "go to trial and get [twenty] years." It is clear from the record, and as evidenced from petitioner's answers to the court during the plea canvass, that there was absolutely no coercion, that he was told twenty years was the maximum sentence he could receive upon a conviction after trial, and that the statute carried a five-year mandatory nonsuspendable minimum.
Attorney Smith testified, credibly, as follows. "I felt like there was at least a fair chance of doing better than the eight years . . . I probably would have advised him of that . . . and said, you know . . . we might want to take our chances with that, because we might do better than . . . eight and we have a fair shot of that." The attorney indicated that, while the decision on the guilty plea had to be petitioner's, his view and assessment of taking "our chances" with "the range" was based on petitioner's circumstances: his age, the absence of a criminal record, the procuring of "good letters," a supportive family, and the relative culpability of the perpetrators.
The record before this court does not establish any professional deficiency or inadequacy with respect to the attorney's advice to petitioner on the consequences of his acceptance of a plea agreement providing a cap of ten years, with a right to argue, or an alternative plea agreement of a fixed eight years.
B. Petitioner's second, third, and fourth claims all relate to an alleged "original" six year plea offer and, thus, are addressed in aggregate. Specifically, these claims are that counsel's representation was deficient due to his failure to: investigate the existence of an "original" six year offer; request the reinstatement of the "original" six year offer; and, advise the petitioner regarding an original six year offer.
The actual existence of an initial six year offer is not clear from the record before this court; however, what is clear from the credible evidence is that Attorney Smith was unaware of any such offer. The offer, if it ever existed, would have been made several months before the commencement of Attorney Smith's representation of petitioner, and no evidence was presented that Attorney Papastravos ever informed Attorney Smith of any such offer.12 Attorney Smith testified that he has no recollection of Attorney Papastravos ever mentioning a six year offer, and that petitioner never told him there was a six year offer pending. Certainly, petitioner's attorney cannot be faulted for not investigating, requesting reinstatement of, or advising on an unknown or undisclosed prior offer.
Attorney Smith credibly testified: "I don't recall [petitioner] ever telling me there was a previous offer for less time."
Petitioner did not call Attorney Papastravos as a witness at the habeas trial. And additionally, no evidence was offered as to any such offer recorded in the State's Attorney's file.
Attorney Smith testified on direct examination:
Q. Did Mr. Person advise you that there had been a six-year offer made to him?
A. That there had been what?
Q. A six-year offer made to him?
A. No, I don't recall him advising me that he had been offered six years.
The record established in the habeas proceeding certainly renders petitioner's assertions of a previous, lower offer somewhat suspect. Attorney Papastravos represented petitioner at all court appearances from October 28, 2004, through that of March 23, 2005. The first mention regarding any plea offer is on March 2, 2005, when the case is on the pretrial list, the State's Attorney stating: "[W]e are getting victim input Your Honor and will be ready to put together an offer. At least one of the defendants has asked for one. So, if we could have a brief continuance we will be in contact with the victims . . ." Prior to March 2, the case was transferred to Part A, pro forma pleas and an election were placed on the record, and the statements of both attorneys indicated continuances were needed to review photos, to have the video from the mall enhanced, and to obtain victim input. On March 23, 2005, with the case still on the pretrial calendar, both attorneys requested that the matter be continued, Attorney Papastravos stating that the matter was discussed, "[t]here is an offer in the file as Your Honor knows, I have conveyed that offer to my client . . . and we are requesting the 11th so that my client can consult with either myself and his family." Thus, March 23 was the first mention of an in-place offer. On April 11, the court noted that a new attorney (Attorney Smith) had appeared, that the case was discussed in chambers, that the case was down for accept or reject, that "the offer has not changed," and a further continuance was granted at the request of new counsel. In the court's view, the aforesaid scenario, particularly given the reasons stated for the various continuances (view photos, enhance the videos, victim input, etc.), raises some considerable doubt as to the likelihood of a prior offer, or of one that remained open.
C. Petitioner's next claim of ineffective representation is that defense counsel failed to ensure that the plea of guilty was entered knowingly, voluntarily, and intelligently. This claim lacks merit based on the credible evidence presented to this court.
The attorney, as stated, testified credibly that he reviewed the entire State's file, took notes on the contents thereof, and met with the State's Attorney regarding the case; thereafter, before the guilty plea was entered, Attorney Smith discussed fully with the petitioner all the evidence the State was prepared to offer if the case went to trial. Also, petitioner was advised by counsel of the statutory elements the State was required to prove, beyond a reasonable doubt, if a trial ensued. The defense attorney also went over, thoroughly, with petitioner the specific terms of the plea agreement including the ten year cap on the executed portion of the sentence, and the right to argue window down to the statutory five year mandatory nonsuspendable minimum. Accordingly, it is clear from the perfectly credible evidence that petitioner was fully informed at the time of plea, well understood the exposure on proceeding to trial, and had knowledge of the State's evidence, the particulars of the plea agreement, and the statutory components of first degree robbery.
The evidence, including petitioner's exhibit #17, clearly establishes that Attorney Smith had "open access" to the State's file (all police reports and other information). Furthermore, petitioner's exhibit #16 makes reference to "police reports, statements . . . codefendants and victim statements" and recites "the State's Attorney gave me full access to all of those materials, which I [the attorney] did in fact review carefully while representing [petitioner]."
Similarly, with respect to the voluntariness of the guilty plea, the court accepts as credible the attorney's testimony that after having fully gone over the State's evidence with petitioner, and having explained to him the terms of each of the two alternative plea agreements, he provided petitioner with his assessment of each of the alternatives, and counseled that "they might do better with the right to argue," but that the decision on whether or not to plead guilty, and under which of the alternative plea offers, had to be made by the petitioner.
On the credible habeas evidence it is established that petitioner's plea of guilty was entered knowingly, voluntarily, and intelligently. This conclusion finds ample support and confirmation in petitioner's answers to Judge Carrol's questions during the thorough plea canvass. In the court's view, the evidence presented shows that every effort was made by the court and the defense attorney to ensure that petitioner's plea was entered knowingly, intelligently, and voluntarily.
D. Petitioner's next claim of ineffective representation is that defense counsel did not properly communicate with him by providing the documents he requested in order to make an informed decision on whether to plead guilty or go to trial.
As stated, Attorney Smith, an experienced defense attorney testified, perfectly credibly, that shortly after filing his appearance he reviewed the entire State's file, took notes on the content thereof, and met with the State's Attorney to discuss the case. He testified, credibly, that he discussed and went over all of the State's evidence with petitioner, as well as the statutory elements of the crime and the terms of the alternative plea agreements; such, as stated, is fully confirmed by petitioner's answers to the court's questions during the plea canvass. Thus, during Attorney Smith's tenure as petitioner's defense attorney, petitioner was fully informed in order to make a knowing decision whether to plead guilty or go to trial. Furthermore, with reference to any request for documents (police reports and/or witnesses' statements), Attorney Smith testified, credibly, both on direct and cross-examination, that he had no recollection of petitioner ever requesting any such documentation while the case was pending. Moreover, it appears from the credible testimony that petitioner's first request of Attorney Smith for any such documentation was made some considerable time (years) subsequent to the sentencing.
The attorney received his B.A. in Criminal Justice in 1994, and a J.D. in 2002; he was employed as an investigator for about five years before attending law school. Mr. Smith was admitted to the Connecticut Bar in 2003. He testified that in the time frame of this case, his practice was about 50% criminal defense and 30% personal injury.
See footnote 7 of this decision.
When asked whether he had enough time to talk to Attorney Smith about the case and his decision to enter a plea, petitioner answered: "Yes." When asked if he discussed with his attorney all of the evidence the State claimed it had to show he was involved in the crime, petitioner answered: "Yes." In addition, petitioner answered in the affirmative when asked if he discussed with his attorney the statutory elements of the crime for which he was charged, and if he understood the recommended sentence was twenty years suspended after ten years, with a mandatory minimum of five, but with the right to argue for less.
Petitioner's exhibits #16 and #17, Attorney Smith's correspondence relative to petitioner's requests, are dated 9/3/08 and 9/11/08, respectively, almost three years after completion of the Milford case, and just six months preceding the filing of the pro se habeas petition. The content of the 9/3/08 letter indicates that it was written in response to a letter from petitioner dated August 19, 2008, two years, eleven months after sentencing.
The defense attorney having ascertained the State's evidence, and having reviewed it, in its entirety, thoroughly with petitioner prior to the guilty plea, all as made clear by the attorney's credible testimony and petitioner's acknowledgments during Judge Carroll's plea canvass, served to properly and adequately inform petitioner regarding a decision between a guilty plea or proceeding to trial. Counsel's professional representation was not, in the court's view, deficient and certainly, on the limited evidence presented, did not fall below the reasonable competence exhibited by lawyers with ordinary training and skills in the criminal law — the representation did not fall below an objective standard of reasonableness.
E. Petitioner's next claim of ineffective representation is that defense counsel failed to file for sentence review, thus depriving petitioner of the opportunity to have his sentence reviewed.
As stated, the record reflects that at the conclusion of the proceeding, the clerk stated: "Let the record reflect I'm giving the defendant notice of right to have a sentence review and application for review of sentence, a notice of application . . . form." Based on the record of the clerk's statement, it may be reasonably inferred that petitioner did receive the sentence review documents immediately following sentencing; therefore, it is also reasonable to infer that petitioner knew of his right to file for sentence review. Nevertheless, petitioner maintains that he was unaware he had a right to sentence review. With regard to the conduct of Attorney Smith, petitioner asserts that his lawyer never advised him of that right or assisted him in pursuing sentence review. While it is not altogether clear from the evidence, it seems quite likely that although the sentence review papers were provided to petitioner immediately following the imposition of sentence, no timely application for sentence review was ever filed, either by petitioner or by Attorney Smith on his behalf.
Petitioner was asked on direct: "You were aware at that time that you had a right to file a petition with the court or a paper with the court requesting a three judge panel to review Judge Carroll's sentence? He answered. "I know nothing about it."
Petitioner testified, as follows:
Q. "[A]fter you were sentenced . . . did you again meet with Attorney Smith and discuss the possibility of a sentence review?
A. "Never — never did."
Q. "You were aware that there was such a thing as sentence review?"
A. "I had . . . no knowledge of it . . . at all from Attorney Smith. He told me nothing."
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Q. "And Attorney Smith never informed you of that right?
A. "He never told me anything like that."
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Q. "And had you been informed of your right to have another judge or panel of judges review that sentence, would you have opted . . . to do that?"
A. "Yes, I would have."
Counsel for respondent, in summation to this court, substantially conceded that an application was not filed, stating: "As to the issue of [sentence] review . . . Attorney Smith . . . does not remember any aspect of that. And obviously, sentencing review was not applied for. The State concedes that the client was entitled to it . . . though, under normal circumstances in a guilty plea, you are not entitled to sentence review . . ."
Attorney Smith testified that he had no independent recollection on why there was no sentence review application. The attorney testified, as follows:
Q. "[D]o you recall whether you filed paperwork for . . . sentence review?" A. "I don't believe I did, no."
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Q. ". . . The best of your recollection . . . did you have any discussions with Mr. Person during that period of time immediately after sentencing about filing for sentence review?"
A. I don't recall."
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Q. "[J]ust so we're clear, you don't . . . really have any recollection of any recollection of any discussions with Mr. Person about filing for sentence review right after sentencing?"
A. "I don't."
In Valentin v. Commissioner of Correction, 94 Conn.App. 751 (2006), the Appellate Court addressed the question of whether trial counsel rendered ineffective assistance by failing to advise adequately with respect to the statutory right to sentence review and by not filing the necessary application. In Valentin, the findings of the habeas judge established that "the court clerk had advised the petitioner of his right to sentence review" (provided the petitioner with notice of his right to sentence review), that the petitioner was advised by the attorney not to seek sentence review "because the risk of doing so outweighed the benefit," and that petitioner accepted the advise and voluntarily decided to forego the filing of an application. (Internal quotation marks omitted.) Id., 758. The Appellate Court, in affirming the habeas court's denial of the petition, stated: "On the basis of the [habeas] court's findings that the petitioner was aware of his right to sentence review and that, in a strategic decision, he ultimately decided to forego sentence review after discussing the matter with [the attorney] . . . the petitioner failed to demonstrate that [the attorney] rendered ineffective assistance of counsel." Id.
The Appellate Court stated it was "implicit in the [habeas] court's findings that [the attorney] did not apply for sentence review because he abided by the petitioner's decision not to apply for such review." Valentin v. Commissioner of Correction, supra, 94 Conn.App. 758.
In the present case, although it appears from the clerk's tender of the sentence review documents that petitioner was aware of his sentence review right, the evidence does not support a finding that Attorney Smith ever advised petitioner regarding sentence review; therefore, the present case is obviously distinguishable from Valentin. Petitioner, citing the decision in Osuch v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 03 0004174 (November 7, 2006, Swords, J.), urges this court to be guided by the analysis employed in Ghant v. Commissioner of Correction, 255 Conn. 1 (2000), dealing with an analogous situation of counsel's duty to advise a defendant of the right of appeal. The Osuch court quoted the following language in Ghant. "In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken . . . 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 . . . [T]he term 'consult' [means] . . . 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 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 . . . [under the Strickland standard this question] imposes one general requirement: that counsel make objectively reasonable choices." (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 255 Conn. 8-9; see also DuPerry v. Kirk, 90 Conn.App. 493, 511-13 (2005), cert. denied, 277 Conn. 921 (2006).
This court agrees with the determination in Osuch that the Ghant standard may be appropriately applied with respect to sentence review, at least where there has been a conviction after a trial. As stated, the evidence here reasonably substantiates that Attorney Smith did not, as counsel had done in Valentin, advise or consult with petitioner on the advantages and disadvantages (the risk versus the benefit) of applying for sentence review. "The United States Supreme Court had rejected a bright line test that would require counsel always to consult with a defendant regarding an appeal . . . The court held that counsel had 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 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 . . . Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal." (Citation omitted; emphasis in original; internal quotation marks omitted.) DuPerry v. Kirk, supra, 90 Conn.App. 513, quoting Ghant v. Commissioner of Correction, supra, 255 Conn. 8-10; see also Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
Noting that sentence review is rare in cases of guilty pleas, the respondent, nonetheless, has not specifically objected to the utilization of a Ghant analysis. However, respondent contends that petitioner has failed to demonstrate that he would have exercised that right but for any ineffectiveness of his attorney. Osuch was a conviction after trial; Valentin, however, involved a guilty plea and a plea agreement with a cap. It appears that any agreement at the time of entering a guilty plea which includes a reservation by the defendant to argue for lesser sentences does not fall within the plea agreement exception of General Statutes § 51-195. State v. Anderson, 220 Conn. 400, 407 (1991).
No evidence was presented to this court supporting a conclusion that petitioner reasonably demonstrated to counsel that he was interested in pursuing sentence review. Therefore, the determinative question is whether there exists reason to believe a rational defendant, under the circumstances that existed immediately following the imposition of sentence, would have wanted the attorney to file for sentence review. That, in turn, involves an objective assessment of the advisability of filing and pursuing an application.
General Statutes § 51-196(a) authorizes the sentence review division to increase or decrease a sentence, or allow the imposed sentence to stand. Subsection (b) permits the division to obtain presentence or precommitment reports and any other records, documents (including the sentencing transcript) or exhibits. Subsection (c) provides that the review division shall permit any victim, or the victim's legal representative, to appear before the division to make a statement for the record concerning whether the imposed sentence should be increased, decreased, or should remain the same. The subsection also permits the victim to submit a written statement, in lieu of an appearance, covering the same subject matter, such statement to be made part of the record at the sentence review hearing. Additionally, subsection (d) states that decisions of the sentence review division shall be final. Practice Book § 43-28 delineates the scope of the division's review: whether the imposed sentence "is inappropriate or disproportionate in light of the nature of the offense, the character of the offender, the protection of the public interest, and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended."
Practice Book § 43-24 directs the clerk of the judicial district where the sentence review application is filed to notify the court reporter who is to prepare a transcript of the sentencing hearing.
In the present case, there are a number of aggravating aspects of the criminal conduct which precipitated petitioner's conviction. These aggravating factors are all articulated in the remarks of the sentencing judge and include: a noontime armed robbery involving the use of an operable gun in a crowded mall; the victim was beaten, and valuables taken from his person. Such factual circumstances implicate the protection of the public and need for deterrence, both of which are within the purview of the division's scope of review. These circumstances might be a basis for the division to increase the executed portion of the sentence. Also, a statement to the division by the victim, who initially requested that the maximum be imposed, when considered along with the above circumstances, might well sway the division members toward a sentence increase.
Additional aggravators include petitioner's flight from scene and attempts to elude the police, the losses sustained by victim, petitioner's verbal statement of remorse delivered only after the judge had interrupted his initial allocution and he conferred with his attorney, and the fact that petitioner received a sentence precisely within the range he bargained for under the plea agreement. Also before the review division panel would be the department of correction disciplinary tickets he received during pretrial incarceration (as referred to in the sentencing judge's comments and apparently in the presentence report), and his considerable degree of culpability respecting the actual commission of the armed robbery as shown in Exhibit #15, the police summary.
Considered in isolation, all the above aggravating factors might have placed petitioner at risk that the term of the executed sentence would have been increased by the sentence review division. The review panel, however, undoubtably would have also weighed (as did the sentencing judge) such considerations as petitioner's age, the absence of an adult criminal record, and perhaps, the support expressed in submitted documents, all of which might have reduced the likelihood of any sentence increase. Also significant is the fact that, similar to the circumstances in Osuch, the imposed sentence was close to the maximum, that is, just one year short of the maximum executed sentence the court could have imposed under the cap contained in the plea agreement. Under such circumstances, the probability that a review panel would have increased the executed sentence is not especially great. Under the facts of this case, a rational defendant might well have desired to assume a somewhat minimal risk of a sentence increase and apply for sentence review. Accordingly, consistent with the Ghant standard, it is concluded that trial counsel should have fully advised petitioner on the advantages and disadvantages (the risk) of applying for sentence review and ascertained petitioner's wishes on whether to file the application provided by the clerk. Cf Valentin v. Commissioner of Correction, supra, 94 Conn.App. 758. In not doing so, the representation was deficient.
Having determined that the failure to advise petitioner respecting the right to sentence review resulted in deficient professional representation, a question remains as to whether petitioner was prejudiced by such deficiency. "The second part of the Strickland test . . . requires the [petitioner] to show prejudice from counsel's deficient performance." Ghant v. Commissioner of Correction, supra, 255 Conn. 10. To demonstrate prejudice when counsel fails to consult with a petitioner about his right to sentence review, a petitioner must show that there is a reasonable probability that, but for counsel's failure to advise the petitioner and ascertain his wishes on whether to file for sentence review, he would have in fact pursued sentence review. See id. Evidence that there existed nonfrivolous grounds for sentence review is highly relevant in making a determination as to whether petitioner suffered any prejudice. See id. In the present matter, since the risk of an increased sentence is not overly great, and since petitioner received four years of a five year window (range), this court cannot conclude that a sentence review filing necessarily would be frivolous. Therefore the prejudice prong of Strickland has been satisfied.
The petition for a writ of habeas corpus is denied as to all claims, except that relating to sentence review. The petition is granted to the extent that petitioner's right to file an application for sentence review is restored for thirty days from the date of this decision. Counsel for the petitioner shall prepare and file with the clerk, within thirty days of this decision, a judgment file.
It is so ordered.