Opinion
No. CV08-4002310
August 25, 2011
MEMORANDUM OF DECISION
On March 26, 2008, the petitioner, Stewart Peterson, filed a petition for a writ of habeas corpus, which was amended on December 20, 2010, and again on February 3, 2011. The petitioner claims that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut. More specifically, petitioner alleges in count one that trial counsel failed to persuade him to accept the state's offer and plead guilty to certain charges against him, and, in count two, that trial counsel failed to ensure that petitioner received the maximum possible presentence confinement credit by asking the trial court to raise his bonds after his conviction by a jury in another criminal file. For reasons set forth more fully below, the petition is denied.
This matter came to trial on March 11, 2011. The Court heard testimony from the petitioner, Michelle Deveau, a records specialist with the Department of Corrections, Attorney Joseph Dimyan, petitioner's trial counsel, and Attorney David Shannon, the prosecutor at the trial. In addition, the petitioner entered into evidence transcripts of the criminal trial and sentencing, a transcript of the sentencing in two others files in which petitioner pleaded guilty, and various Department of Corrections documents. The petitioner and the respondent filed post-trial briefs on May 2, 2011, and June 3, 2011, respectively.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Danbury under docket number CR06-0125329 in which he was charged with criminal possession of a weapon, in violation of General Statutes § 53a-217, illegal possession of a weapon in a motor vehicle, in violation of General Statutes § 29-38, possession of narcotics, in violation of General Statutes § 21a-279(a), and possession of an illegal substance by a non-student within 1500 feet of a school, in violation of General Statutes § 21a-279(d).
2. About one month later, while out on bond on the weapons and narcotics charges, the petitioner was again arrested and in docket number CR06-0125803 was charged with two counts of possession of narcotics, in violation of General Statutes § 21a-279a, sale of illegal drugs, in violation of General Statutes § 21a-278(b), possession of drug paraphernalia, in violation of General Statutes § 21a-267(a), and violation of traffic control signals, in violation of General Statutes § 14-299.
Petitioner's Exhibit (Exh.) 6, p. 2.
3. The petitioner was represented in both matters by Attorney Joseph Dimyan. The petitioner retained Attorney Dimyan after the arrest in his second case. Mr. Dimyan graduated from Fairfield University in 1975 and Fordham School of Law in 1979 when he passed the bar and began practicing in Danbury with his uncle's firm. His practice was a general practice with an emphasis on criminal law. In 2007 he agreed to a voluntary disbarment for five years for commingling clients' funds with other accounts. He is eligible to reapply for bar admission in February 2012.
4. On August 2, 2006, the prosecutor made the petitioner an offer that would have disposed of both cases with a total effective sentence of seven years suspended after three, with probation following. The petitioner was given until September 20, 2006 to consider the offer. The petitioner rejected the offer and the cases were placed on the firm jury docket on September 27, 2006.
5. On October 23, while awaiting trial, the petitioner was again arrested and in docket number CR06-0127604 he was charged with two counts of possession of narcotics, in violation of General Statutes § 21a-279(a), possession of drug paraphernalia, in violation of General Statutes § 21a-267(a), sale of illegal drugs, in violation of General Statutes § 21a-278(b), possession of a controlled substance, in violation of General Statutes § 21-279(c), and operating under suspension, in violation of General Statutes § 14-215.
Petitioner's Exh. 6, p. 3.
6. The petitioner then proceeded to a jury trial on CR06-0125329 and was convicted of criminal possession of a weapon and illegal possession of a weapon in a motor vehicle, and was found not guilty of the remaining charges.
Petitioner's Exh. 3., pp. 66-68.
7. On January 17, 2007, the trial court, Thim, J., sentenced the petitioner to five years to serve on each charge to run consecutively with each other, for a total effective sentence of ten years to serve.
Exh. 4, pp. 7-8.
8. Also on January 17, 2007, the petitioner pled guilty and was sentenced on both of his remaining criminal files. In CR06-0125803, the petitioner pleaded guilty to one count of possession of narcotics and the trial court, Mintz, J., sentenced him to seven years to be served concurrently with the sentence imposed in CR06-0125329. In CR06-0127604, the petitioner pleaded guilty to one count of possession of narcotics and was sentenced to three years, to be served consecutively to the sentence he received in CR06-0125803 and concurrently to the sentence he received in CR06-0125329, for a total effective sentence of ten years concurrent with the ten-year sentence imposed after trial in CR06-0125329.
9. Additional facts will be discussed as needed.
DISCUSSION
"According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Internal quotation marks omitted.) Lane v. Commissioner of Correction, 129 Conn.App. 593, 597, 20 A.3d 1265 (2011).
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . Because of the difficulties inherent in making the 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.) Spells v. Commissioner of Correction, 108 Conn.App. 192, 196, 947 A.2d 404, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).
"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding . . . Rather, [the 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." (Internal quotation marks omitted.) Id., 196-97.
"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. Commission of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
"Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010). "[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Emphasis in original; internal quotation marks omitted.) Id., 572.
"On the one hand, defense counsel must give the client the benefit of counsel's professional advice on this crucial decision of whether to plead guilty . . . As part of this advice, counsel must communicate to the defendant the terms of the plea offer . . . and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed . . . On the other hand, the ultimate decision whether to plead guilty must be made by the defendant . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer . . . Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [r]epresentation is an art . . . and [t]here are countless ways to provide effective assistance in any given case . . . Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision." (Citations omitted; internal quotation marks omitted.) Purdy v. United States, 208 F.3d 41, 44-45 (2d Cir. 2000).
The petitioner first argues that that his trial counsel rendered ineffective assistance by failing to persuade the petitioner to accept the state's offer and plead guilty to certain charges against him. The respondent counters that 1) the petitioner's claims of ineffective assistance fail as a matter of law because the challenged conduct of counsel did not occur during critical stages of the prosecution where the constitutional guarantee of the assistance of counsel would apply; and 2) the petitioner has failed to show that the alleged failures by counsel constitute deficient performance or resulted in prejudice within the meaning of Strickland.
The respondent's first argument must fail because it is contrary to current Appellate authority. Our Appellate Court has rejected this argument, holding that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in a criminal proceeding, and a criminal defendant is, therefore, entitled to effective assistance of counsel at this stage. Ebron v. Commissioner of Correction, supra, 120 Conn.App. 567; Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 713, 1 A.3d 170, cert. granted, 298 Conn. 918, 4 A.3d 1226 (2010).
The respondent acknowledges that his argument is contrary to current authority, but presents it to preserve such argument for appellate review. See Respondent's post-trial brief, p. 9, n. 6.
Nevertheless, this court must now determine whether counsel rendered ineffective assistance, under the Strickland standard, by failing to persuade the petitioner to accept the state's offer and plead guilty to certain charges against him. At the habeas trial, the petitioner testified that he recalled Attorney Dimyan informing him of the offer that had been extended by the state. The offer was for seven years, suspended after three, with five years of probation and was inclusive of the petitioner's first two files (CR06-0125329 and CRO6-0125803). The petitioner further testified that Attorney Dimyan explained what the offer was, but when asked whether Attorney Dimyan discussed what he believed the petitioner's chances of winning at trial were, the petitioner stated: "Not to the fullest extent, no." The petitioner also claimed that Attorney Dimyan did not discuss with him the strength or weakness of the state's case, nor did he go over any of the state's evidence against him.
March 11, 2011 Habeas trial transcript, p. 15.
Attorney Dimyan, on the other hand, testified that the state proposed the offer of seven years, suspended after three, with five years of probation after the petitioner was dropped by an alternative incarceration program for being noncompliant. Attorney Dimyan stated that he immediately discussed the offer with the petitioner, adding: "And then I continually discussed it with him because the last thing I wanted to do was try the case because if we won the first arrest which went to trial . . . my concern was they were going to convict him on the subsequent arrest." Attorney Dimyan believes that he may have even told the petitioner that he "didn't have a snowball's chance in hell" of beating all of the charges against him at trial. In addition, he claims that he tried to get the petitioner to accept the offer to the point where he even spoke to the petitioner's mother, hoping that she could convince him to take the plea. Attorney Dimyan also testified that he informed the petitioner that there was a "good likelihood" that he would end up with a jail sentence of double digits if he were to be convicted. Finally, Attorney Dimyan testified: "Clearly, there is no doubt in my mind that I advised him, that I encouraged him, that if there was any way to strong-arm him I would have. I couldn't have made it any more clear. It was my advice to take that offer. And there is no doubt in my mind he was part of that conversation on more than one occasion."
March 11, 2011 Habeas trial transcript, p. 35.
March 11, 2011 Habeas trial transcript, pp. 36, 44.
March 11, 2011 Habeas trial transcript, pp. 38-39.
The petitioner's claims that Attorney Dimyan presented the state's offer but that he never discussed the strength of the state's case or the petitioner's chances of prevailing at trial, and that he neglected to express his opinion as to whether the petitioner should accept the plea are simply not credible. This court credits Attorney Dimyan's testimony that he expressed his concern that the petitioner could not realistically prevail at trial on all of the charges against him, and that he did everything short of "strong-arming" the petitioner into accepting the state's offer. It is clear from the record that Attorney Dimyan certainly made a reasonable attempt to persuade the petitioner to accept the plea agreement, and therefore, his representation of the petitioner did not fall below an objective standard of reasonableness with respect to this claim. As a result, this claim must fail.
The petitioner's second and final claim concerns Attorney Dimyan's failure to ensure that the petitioner received the maximum possible presentence confinement credit by asking the trial court to raise his bonds (in docket numbers CR06-0125803 and CR06-0127604) after his conviction by a jury on docket number CR06-0125329. The petitioner alleges the following. Once the petitioner was convicted on docket number CR06-0125329, placed into custody, and his bond was substantially raised, Attorney Dimyan should have then requested the petitioner's bond to be increased on the other two cases he had pending. In failing to do so, the petitioner was not credited for jail time that he served between his November 16, 2006 conviction and his January 17, 2007 sentencing, which amounts to sixty-two days. Had counsel acted reasonably and. effectively, he would have had these bonds raised and the petitioner would not have been prejudiced by being required to serve sixty-two days more than he currently is.
The petitioner supports his theory by citing Gonzalez v. Commissioner of Correction, supra, 122 Conn.App. 716. "The habeas court correctly determined that a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner's third arraignment, not two and one-half months later. No evidence to the contrary was presented at the habeas trial. Counsel's conduct fell below an objective level of reasonableness, as it was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law." (Emphasis added.) Id.
In the present case, however, Attorney Dimyan did present evidence to the contrary when he testified at the habeas trial that he was aware of the jail time served by the petitioner and he raised the issue during his conversations with the state's attorney when they were negotiating the plea agreement. Attorney Dimyan claims that as a result, the state agreed to make whatever sentence that the petitioner was to receive in the two cases he was pleading guilty to concurrent with the sentence imposed on his conviction. Attorney Dimyan testified that he believed that such an offer was fair under the circumstances. This court finds that Attorney Dimyan's efforts to use the jail credit as a bargaining chip during the plea negotiations falls within the wide range of reasonable professional assistance and that the petitioner has failed to show that Attorney Dimyan's actions were anything other than sound trial strategy. As a result, this claim must also fail.
March 11, 2011 Habeas trial transcript, p. 54.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.