Opinion
No. CV06 4016498
December 14, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT RE PETITION FOR WRIT OF HABEAS CORPUS
The respondent, Zamary, pursuant to Practice Book § 23-37, has moved for summary judgment on the petitioner's Petition for Writ of Habeas Corpus, dated January 4, 2006. The petition charges (1) that petitioner's counsel rendered ineffective assistance of counsel on eight separate grounds; (2) that the petitioner's sentence exceeds the statutory penalty; and (3) that petitioner was denied due process under the Connecticut Constitution because he was not informed of the length of the administrative suspension of his driver's license.
Practice Book Sec. 23-37 titled "Summary Judgment in Habeas Corpus" reads as follows:
At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.
The respondent in moving for summary judgment argues that the petitioner's ineffective assistance of counsel claims are based upon an erroneous construction of the AEP and DUI laws in that he claims he was entitled to a dismissal of the first DUI charge prior to the adjudication of the second, and this position is without any legal basis or merit. The respondent claims that the petitioner's other assignments of error on the part of his trial lawyer emanate from this erroneous premise. Second, the respondent argues that the petitioner's belief that the trial court imposed 200 hours of community service on each DUI charge is also erroneous, as certified copies of the judgment indicate that. In fact, only 100 hours of community service was imposed for each charge. Third, the respondent argues that the petitioner's claim that due process entitled him to be informed of the extent of an administrative driver's license suspension is incorrect as a matter of law.
The petitioner in objecting to summary judgment argues that the habeas petition asserts that his trial counsel was ineffective in failing to move to dismiss the charges for the first DUI after the petitioner had successfully completed all of the conditions of the AEP program and after the one year period had expired. Petitioner also claims that his counsel was deficient by improperly advising him to enter guilty pleas, and that his counsel failed to conduct an investigation. Thus, there are genuine issues of material fact regarding the claims of ineffective assistance of counsel, and summary judgment is inappropriate.
I Standard of Law
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Internal citation and quotation marks omitted.) DuPerry v. Kirk, 90 Conn.App. 493, 508-09 (2005).
"[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378-79 (1969). "Although the party seeking summary judgment has the burden of showing the nonexistence of material fact, . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such a dispute issue." Maffuci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554 (1998). "A directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.' (Emphasis in original.) Miller v. United Technologies Corp., 233 Conn. 732, 752 (1995).
II History of Proceedings
On March 15, 2004, the petitioner's application to enter the alcohol education program ("AEP") was granted by the court (Taylor, J.) pursuant to General Statutes § 54-56g. The petitioner's case, emanating from an arrest for Driving Under the Influence ("DUI") on December 11, 2003, ("DUI") was continued for one year to allow the petitioner to complete the alcohol education program. On January 17, 2005, nine months after the granting of the AEP, the petitioner was again arrested and charged with DUI. Subsequently, on March 22, 2005, the petitioner pleaded guilty to both charges and was sentenced as a "double first offender" to a total of one year's incarceration, execution suspended, two year's probation, a $1,000 fine and 200 hours of community service. Other conditions of his sentence included alcohol evaluation and treatment and attendance before a victim impact panel. His operator's license was also suspended. The instant petition is dated January 4, 2006 and bears a return date of February 7, 2006. The respondent, pursuant to Practice Book § 23-30 filed his "Return" on June 20, 2006.
General Statutes § 54-56g reads in relevant parts as follows:
(a) There shall be a pretrial alcohol education system for persons charged with a violation of section 14-227a, 14-227g, 15-133, 15-140l or 15-140n. Upon application by any such person for participation in such system . . . provided such person states under oath, in open court or before any person designated by the clerk and duly authorized to administer oaths, under penalties of perjury that: (1) If such person is charged with violation of section 14-227a, such person has not had such system invoked in such person's behalf within the preceding ten years for a violation of section 14-227a, (2) if such person is charged with a violation of section 14-227g, such person has never had such system invoked in such person's behalf for a violation of section 14-227a or 14-227g, (3) such person has not been convicted of a violation of section 53a-56b or 53a-60d, a violation of subsection (a) of section 14-227a before or after October 1, 1981, or a violation of subdivision (1) or (2) of subsection (a) of section 14-227a on or after October 1, 1985, and (4) such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as section 53a-56b or 53a-60d or subdivision (1) or (2) of subsection (a) of section 4-227a . . .
(b) The court, after consideration of the recommendation of the state's attorney, assistant state's attorney or deputy assistant state's attorney in charge of the case, may, in its discretion, grant such application. If the court grants such application, it shall refer such person to the Court Support Services Division for assessment and confirmation of the eligibility of the applicant and to the Department of Mental Health and Addiction Services for evaluation. The Court Support Services Division, in making its assessment and confirmation, may rely on the representations made by the applicant under oath in open court with respect to convictions in other states of offenses specified in subsection (a) of this section. Upon confirmation of eligibility and receipt of the evaluation report, the defendant shall be referred to the Department of Mental Health and Addiction Services by the Court Support Services Division for placement in an appropriate alcohol intervention program for one year, or be placed in a state-licensed substance abuse treatment program. Any person who enters the system shall agree: (1) To the tolling of the statute of limitations with respect to such crime, (2) to a waiver of such person's right to a speedy trial, (3) to complete ten or fifteen counseling sessions in an alcohol intervention program or successfully complete a substance abuse treatment program of not less than twelve sessions pursuant to this section dependent upon the evaluation report and the court order, (4) upon completion of participation in the alcohol intervention program, to accept placement in a treatment program upon recommendation of a provider under contract with the Department of Mental Health and Addiction Services pursuant to subsection (d) of this section or placement in a state-licensed treatment program which meets standards established by the Department of Mental Health and Addiction Services, if the Court Support Services Division deems it appropriate, and (5) if ordered by the court, to participate in at least one victim impact panel. The suspension of the motor vehicle operator's license of any such person pursuant to section 14-227b shall be effective during the period such person is participating in such program, provided such person shall have the option of not commencing the participation in such program until the period of such suspension is completed. If the Court Support Services Division informs the court that the defendant is ineligible for the system and the court makes a determination of ineligibility or if the program provider certifies to the court that the defendant did not successfully complete the assigned program or is no longer amenable to treatment, the court shall order the court file to be unsealed, enter a plea of not guilty for such defendant and immediately place the case on the trial list. If such defendant satisfactorily completes the assigned program, such defendant may apply for dismissal of the charges against such defendant and the court, on reviewing the record of the defendant's participation in such program submitted by the Court Support Services Division and on finding such satisfactory completion, shall dismiss the charges. If the defendant does not apply for dismissal of the charges against such defendant after satisfactorily completing the assigned program the court, upon receipt of the record of the defendant's participation in such program submitted by the Court Support Services Division, may on its own motion make a finding of such satisfactory completion and dismiss the charges. Upon motion of the defendant and a showing of good cause, the court may extend the one-year placement period for a reasonable period for the defendant to complete the assigned program . . .
(e) The court may, as a condition of granting such application, require that such person participate in a victim impact panel program approved by the Court Support Services Division of the Judicial Department . . .
Although General Statutes § 14-227a(g)(2)(B) provides for a term of imprisonment for a second offense, the petitioner avoided imprisonment for a second offense as a result of a plea agreement when he was treated as a "double first offender." The Court accepted the pleas after a plea canvass and made a finding that the pleas were freely and voluntarily made, with a full understanding of the crimes charged and after adequate and effective assistance of counsel.
The court heard oral argument of the motion for summary judgment on September 17, 2007. At that time the court was informed that the petitioner had completed his term of probation in March 2007. However, the subject habeas corpus action had been filed prior to the completion of the petitioner's probationary status and the parties agree that the court retains jurisdiction of this petition.
At oral argument, counsel for the petitioner also informed the court that the petitioner would be amending his habeas petition to withdraw any due process claims regarding the imposition by the court of a sentence that contained an excessive penalty. Counsel informed the court that the petitioner was "limited to ineffective assistance of counsel claims, which are articulated in, I believe paragraph D of the petition." When the court then inquired if it was to only consider the ineffective assistance of counsel claims, petitioner's counsel replied "Yes, sir." Therefore, the court in determining the merits of summary judgment will only consider the ineffective assistance of counsel claims set forth in the Petition for Writ of Habeas Corpus dated January 4, 2006.
III Argument
The petitioner claims that his trial counsel's conduct deprived him of the effective assistance of counsel in violation of Article First, Section 8 of the Connecticut Constitution. In claims of ineffective assistance of counsel brought under the Connecticut Constitution, Connecticut has adopted the federal standard and the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which has been employed in corresponding claims brought under the U.S. Constitution. Summerville v. Warden, 29 Conn.App. 162, 170-71, 614 A.2d 842, 847, cert. granted on other grounds, 224 Conn. 918 (1992).
"In Strickland v. Washington, supra, 466 U.S. 687, the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . ." Mezrioui v. Commissioner of Correction, 66 Conn.App. 836 (2001). Our courts have also adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 1992). "Thus, since the purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding . . . that proceeding must be regarded as the entire continuum of the adjudicatory process, both trial and appeal." (Citation omitted; internal quotation marks omitted.) Id., 460.
"The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was reasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 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." (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 70-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001); CT Page 21538 Mezrioui v. Commissioner of Correction, supra at 837-38.
The respondent argues that a participant in the AEP program has not completed the program simply because a period from its date of granting has passed. Instead, a participant must still then apply for and be granted a dismissal by the court.
A person admitted to the pretrial alcohol education program remains under the jurisdiction of the court for control purposes until he has successfully completed the program and his charges are dismissed. If a defendant satisfactorily completes the program to which he has been assigned, the defendant may apply for dismissal of the charges against him and the court, on reviewing the record of his participation in such program . . . and on finding such satisfactory completion, shall dismiss the charges. General Statutes 54-56g (b).
(Internal quotation marks omitted.) State v. Descoteaux, 200 Conn. 102,106,509 A.2d 1035(1986).
The statute clearly requires the trial court to make an independent determination of the defendant's satisfactory completion of the prescribed program of alcohol education and treatment. The trial court is not, as the defendant contends, relegated to the ministerial role of rubber stamping the certification of the program provider that the defendant has successfully completed the assigned program. While the court may rely heavily on the recommendation of the office of adult probation or the program provider, such recommendations are not conclusive. The court must determine for itself and enter a finding, that the defendant's completion of the program has been satisfactory. Otherwise, there would be no purpose to the statutory requirement that the defendant, upon completion of the program, return to court and apply for dismissal of the charges against him.
(Internal quotation marks omitted.) Id., 106-07.
The respondent argues that trial counsel's representation of the petitioner cannot be held to be deficient in light of State v. Descoteaux, supra, and in light of the petitioner's second DUI arrest during the one year AEP time period. However, unlike the current matter, the petitioner in Descoteaux had pleaded guilty to the charges from the second arrest, prior to her request to continue participating in the AEP program that had been granted for her first arrest for DUI. As a result of her guilty plea to the charges resulting from her second arrest, the court terminated her participation in the AEP program. Our Supreme Court in Descoteaux, held that the conviction for the second offense provided the trial court with an adequate basis for the removal of the Descoteaux, petitioner from the AEP.
Thus, when the respondent in this matter states that this petitioner was in "the exact same situation as the Descoteaux, petitioner following his second arrest," the statement is not entirely true. The instant petitioner, Petrocelli had not pleaded guilty to his second arrest and had completed the program requirements and the one year waiting period at the time he ultimately entered guilty pleas to the DUI charges for both incidents. Whether his second arrest nine months after his entrance into the AEP for the first arrest, should serve as a basis for terminating the AEP program after he had completed the conditions of the program and completed the one-year waiting period, was never the subject of a hearing by the court. The court never made an independent determination of the defendant's satisfactory completion of the prescribed program of alcohol education and treatment. State v. Descoteaux, supra, 200 Conn. 106-07.
Following it's decision Descoteaux, our Supreme Court issued its decision in State v. Hancich, 200 Conn. 615, 513 A.2d 638 (1986). In State v. Hancich, supra, the defendant, was arrested in August 1983, and charged with operating a motor vehicle under the influence of intoxicating liquor. She was permitted to enter the AEP. In March 1984, before she had completed the program, she was again arrested for operating a motor vehicle under the influence of intoxicating liquor. She subsequently completed the AEP and moved to dismiss the charge resulting from the first arrest, but the trial court reserved judgment pending the outcome of the trial resulting from the second arrest. Following a verdict and judgment of guilty in the case involving the second arrest, the trial court denied the defendant's motion to dismiss the first charge. The defendant then entered a plea of nolo contendere and appealed from the judgment in both cases.
On October 11, 1984, the defendant completed the pretrial alcohol education program, and received a "certificate of completion" from the "program provider." The defendant's trial on her March 11, 1984 arrest began on November 1, 1984. State v. Hancich, supra, 200 Conn. 617.
After reversing the conviction that resulted from Hancich's trial for the second DUI arrest, our Supreme Court then discussed the refusal of the court to dismiss the first arrest for which Hancich had completed the requirements of the AEP.
In State v. Descoteaux, we held that General Statutes 54-56g(b) requires the trial court to make an independent determination of the defendant's satisfactory completion of the prescribed program of alcohol education and treatment. In the present case it does not appear from the record that the trial court made any such independent determination. Rather, it appears that the trial court based its decision to deny the defendant's motion to dismiss the August 22, 1983 charges, and to remove her from the pretrial alcohol education program, solely upon the defendant's conviction, on November 7, 1984, on the charges stemming from the March 11, 1984 offense. Since that conviction has now been reversed, it no longer provides an adequate basis to sustain the trial court's action in denying the motion to dismiss.
Once she had been admitted to the pretrial alcohol education program, the defendant could not be removed unless the trial court made an independent determination that she had lost her eligibility to continue or that she had not completed it successfully. We note that in this case the trial court need not have deferred its decision on the defendant's motion to dismiss to await the outcome of the upcoming trial on the March 11, 1984 arrest. The defendant was entitled to no more than a hearing; and to an independent determination by the trial court that she had committed the act underlying the March 11, 1984 arrest, and that based on that act, she could not successfully have completed the pretrial alcohol education program. Minimum standards of due process would further require that the trial court state the reasons for its decision on the record.CT Page 21541
Thus, while the evidence adduced at the defendant's trial for the March 11, 1984 offense certainly would have justified an independent determination by the trial court that the defendant could not successfully have completed the pretrial alcohol education program, the trial court made no finding to that effect. We therefore find error in the trial court's denial of the defendant's motion to dismiss the August 22, 1983 charges, and remand the case to the trial court for a determination of whether the circumstances surrounding the March 11, 1984 arrest were such as to require her removal from the program.
Internal quotation marks and internal citations omitted.) State v. Hancich, supra, 200 Conn. 626-28.
While the instant case, State v. Descoteaux, supra, and State v. Hancich, supra, involve multiple arrests for DUI and the AEP program, See, General Statutes § 54-56g, the court is aware of decisions regarding other pretrial diversionary programs where criminal defendants were arrested for subsequent offenses after having been granted diversionary program status for their initial offense.
In State v. Fanning, 98 Conn.App. 111, 908 A.2d 573 (2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007), involving termination of the Accelerated Rehabilitation program status, the Appellate Court considered a case of a defendant, who had been charged with the crime of promoting prostitution in the second degree and whose application for accelerated pretrial rehabilitation had been granted. The defendant sought, pursuant to General Statutes § 54-56e, to dismiss the charge against him, claiming that he had successfully completed his period of probation. However, during his probationary period, the defendant again had been arrested and charged with the crime of promoting prostitution in the second degree, but the state did not take any action to terminate his participation in the accelerated pretrial rehabilitation program at that time. The trial court denied the defendant's motion to dismiss the charge and terminated his accelerated rehabilitation status.
The Appellate Court held that the trial court properly denied the defendant's motion to dismiss the charge against him because the defendant had been arrested during his period of probation and charged with an identical offense. The trial court could not make a finding that the defendant had satisfactorily completed his period of probation and, thus, was not required under § 54-56e to dismiss the charge. State v. Fanning, supra, 98 Conn.App. 117.
However, the Appellate Court also found the trial court improperly terminated the defendant's accelerated rehabilitation status solely on the basis of his subsequent arrest for an identical offense, and the mere arrest of the defendant, without more, was not a sufficient ground for the court to terminate the defendant's pretrial probationary status or to determine by a fair preponderance of the evidence that the defendant had violated any criminal law, especially given that the only information provided to the court was that the defendant had been arrested and that the undisposed charge was ending when the court terminated the defendant's accelerated rehabilitation status.
Here, the defendant was arrested and charged with promoting prostitution in the second degree during his period of probation. That case was still pending at the time the court terminated the defendant's accelerated rehabilitation status. The basis for that termination was the undisposed charge. Other than the fact that the defendant had been arrested and charged with a crime identical to the underlying charge for which he sought dismissal, the court had no evidence or information before it concerning the second arrest and charge. On the facts of this case, we conclude that the fact of an arrest, without more, was an insufficient basis for the court to determine by a fair preponderance of the evidence that the defendant had violated any criminal law in order to terminate the probation.
(Internal citations and quotation marks omitted.) Id., 122; see also, State v. Barnes, 37 Conn.Sup. 853, 439 A.2d 456 (1981) (Holding that because the disposition of the larceny-related charges was still pending at the time of the later hearing, the trial court erred in concluding that the defendant had not satisfactorily completed the conditions of his accelerated rehabilitation.); State v. Woods, Superior Court, judicial district of New Haven at GA 6 at New Haven, Docket No. CR6-456845 Dec. 14, 1999, Owens, J.) (The mere arrest of a defendant, without more is an insufficient ground for revoking the defendant's eligibility for dismissal of charges pursuant to the accelerated rehabilitation program. A hearing should be held to determine if the defendant had violated any of he actual terms of probation by committing a criminal offense.)
The court discusses the decisions in State v. Descoteaux, supra, 200 Conn. 102; State v. Hancich, supra, 200 Conn. 615; and State v. Fanning, supra, 98 Conn.App. 111, not in an effort to ultimately resolve the claims that the petitioner has raised regarding ineffective assistance of counsel, but rather to illustrate that the petitioner had certain rights regarding a hearing and finding by the trial court that he, in fact, did not successfully complete the AEP. At the time the petitioner moved for a dismissal of the charges stemming from his first arrest for DUI, he had not been convicted of the charges originating from his second arrest. The record before the court does not indicate that the trial court ever made a finding that the petitioner was unsuccessful in completing the AEP program before the court accepted the defendant's guilty pleas as a "double first offender" as a result of a plea bargain.
No where in the record before the court is there evidence that the AEP program was ever formally terminated as part of the pleas and sentencing.
The record does not indicate, whether petitioner's counsel had requested such a finding or was aware that the defendant was entitled to a hearing to have the court determine if the AEP program was successfully completed or not. It is unknown to this court whether petitioner's counsel conducted any investigation or discussed these options with the petitioner, prior to the petitioner entering guilty pleas to both DUI arrests. It is also inconsequential for the purposes of this motion for summary judgment whether one may surmise that the petitioner benefitted from the plea negotiation arranged by his counsel.
The fact that his pleas were canvassed by the trial court and found to be entered knowingly, voluntarily and with effective assistance of counsel is also not dispositive. The subject matter of the petitioner's right to have a hearing regarding the successful or unsuccessful completion was not discussed during the plea canvass, and a formal termination of the AEP program due to its `unsuccessful completion" was never entered by the trial court, based on a review of the record before this court and the transcript of the plea canvass.
This court may only render summary judgment if the pleadings and submitted plea transcript show that there is no genuine issue as to any material fact regarding the claims of ineffective assistance of counsel and that the respondent is entitled to judgment as a matter of law. Stated somewhat differently, there must not remain a dispute as to a material fact. A review of count one and the enumerated specific ways in which trial counsel allegedly performed deficiently shows that genuine issues of material fact that lie outside the pleadings and the plea transcript remain in dispute. For example, how trial counsel advised the petitioner, conducted an investigation, and reviewed and explained information to the petitioner that was relevant to the decision to enter a plea, are neither warrantably inferred nor resolved by the pleadings and the plea transcript. Such claims of ineffective assistance of counsel are both fact specific and driven, and near impossible to resolve short of a full evidentiary hearing.
Bendlak v. Warden, Superior Court, judicial district of Tolland at Rockville, No. CV04-0004555 S (Nov. 28, 2005, Santos, J.).
For the reasons stated herein, the respondent's motion for summary judgment is hereby denied. Genuine issues of material fact regarding the petitioner's claims of ineffective assistance of counsel exist.