Opinion
No. CV 07-4002083
March 30, 2011
MEMORANDUM OF DECISION
On November 13, 2007, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended by appointed counsel on March 18, 2010. The amended petition raises a single claim: that the petitioner was denied effective assistance of counsel prior to and during violation of probation proceedings, in violation of the sixth and fourteenth amendments to the United States Constitution, and article first, §§ 8 and 9, of the Constitution of the State of Connecticut. The respondent's return denies that the petitioner received ineffective assistance of counsel and leaves the petitioner to his burden of proof.
The parties appeared before this court on July 20, 2010, for a trial on the merits. The court heard testimony from the petitioner; Nancy Cotto, the petitioner's mother; and Attorney Caroline Comerford, who represented the petitioner in the underlying violation of probation matter. Additionally, several documents were entered into evidence, namely the transcripts and informations for docket numbers CR01-0198541, CR04-217777 and CR05-0028575. The court ordered the parties to file post-trial briefs after receipt of the habeas trial transcript, with the petitioner's brief due three weeks after receipt of the habeas trial transcript and the respondent's brief due six weeks after receipt of the habeas trial transcript. Thereafter, the petitioner's brief was filed on November 9, 2010; the respondent's brief was filed on December 9, 2010.
The court has reviewed all of the testimony and evidence and makes the following findings of fact. For the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
The petitioner was the defendant in a case in the judicial district of New Britain at New Britain under docket number CR01-0198541, in which he initially was arrested for one count of robbery in the first degree, in violation of General Statutes § 53a-134, one count of larceny in the second degree, in violation of General Statutes § 53a-123, and one count of assault in the second degree, in violation of General Statutes § 53a-60. The petitioner ultimately was charged in an information with one count of robbery in the first degree, in violation of General Statutes § 53a-134(3). On March 11, 2002, the petitioner pleaded guilty to that count and, on May 16, 2002, was sentenced to a total effective sentence of six years, execution suspended after the service of three years, followed by five years probation. Respondent's Exhibit D.
2. The conditions of probation imposed in docket number CR01-0198541 included the standard conditions of probation, as well as that the petitioner was ordered to pay restitution to the victim, obtain his General Education Diploma (GED), full-time or part-time employment as education allows, substance abuse evaluation testing and treatment, any psychological treatment deemed necessary, and zero tolerance that he not possess any chemical substances. Id.
3. The petitioner also was the defendant in docket number CR04-217777, judicial district of New Britain at New Britain, in which he was charged in an information with one count of conspiracy to illegally sell a firearm, in violation of General Statutes §§ 53a-48 and 29-33. The petitioner pleaded guilty on January 31, 2005, and was sentenced by the court, Handy, J., on that date to a total effective sentence of five years, execution suspended, with five years probation, to run consecutive to the sentence in CR01-0198541. Respondent's Exhibit C; Petitioner's Exhibit 1, pgs. 10, 14. The prosecuting attomey agreed to the suspended sentence, but indicated at that time that "should Mr. Pope get one other arrest that results in a violation of probation or anything that results in a violation he should be aware the state's going to seek the full amount of time because he's getting a substantial break here." Petitioner's Exhibit 1, pg. 1. The prosecutor later reiterated his intent to seek the full eight years that were suspended: "[S]hortly after [the petitioner was] placed on probation after he leaves incarceration he acquired 3 arrests. Should he acquire even one more arrest or other significant violation, as I alluded to earlier, as far as I'm concerned I'm going to seek the full 8 years, in part because he got such an incredibly substantial break on this case, particularly when you have the underlying crime he was accused of — or convicted of, the robbery 1 and now you have an assault weapons sale conspiracy situation." Id., pg. 13. Judge Handy further emphasized that the petitioner was receiving a "huge break" and stressed that the prosecutor did not want the petitioner to come before the court "for the slightest, slightest, violation of the law." The petitioner affirmatively indicated his understanding. Id., pg. 14. Both the court and the prosecutor again stressed that the prosecutor wanted eight years hanging over the petitioner's head. Id., pg. 16.
The January 31, 2005 transcript reflects that the petitioner admitted a violation of probation in an additional docket ending in "603," for which the petitioner had been charged with risk of injury. Petitioner's Exhibit 1, pg. 2. Judge Handy ordered the probation terminated in the risk of injury case. Id., pg. 10.
4. On January 31, 2005, Judge Handy also addressed a violation of probation charge in docket number CR01-0198541, which had been triggered by the arrest for conspiracy to illegally sell a firearm. The petitioner's probation for the robbery case was ordered continued. Id., pgs. 14-15. The court further ordered "[a]ll of the original conditions of all of his probations are in effect with the following: obey all laws of this state, every other state and all federal laws, possess no weapons, substance abuse evaluation and treatment, don't use or possess drugs or alcohol, random urines and Alco-Sensor testing, do not associate with any known drug dealers, drug users or gang members. You are to be employed on a full-time basis." Id., pg. 15. The petitioner also was required to obtain his GED.
5. Therefore, the petitioner on January 31, 2005, received for both the violation of probation and the conspiracy to illegally sell a firearm charges a total effective sentence of eleven years, suspended after the service of three years, followed by five years probation.
The petitioner had already served the three years. Petitioner's Exhibit 1, pg. 10.
6. On December 9, 2005, the petitioner was arrested and charged in docket number CR05-28575, judicial district of New Britain at New Britain, with one count of possession of a sawed-off shotgun, in violation of General Statutes § 53a-211, one count of criminal use of a firearm, in violation of General Statutes § 53a-216, one count of burglary in the first degree, in violation of General Statutes § 53a-101, one count of breach of peace in the second degree, in violation of General Statutes § 53a-181, one count of reckless endangerment, in violation of General Statutes § 53a-63, one count of criminal trespass in the first degree, in violation of General Statutes § 53a-107, and one count of threatening in the second degree, in violation of General Statutes § 53a-62. Respondent's Exhibit B.
7. By way of two separate informations, the petitioner was charged with two counts of violation of probation, in violation of General Statutes § 53a-32, one count charged in docket number CR01-0198541 (Respondent's Exhibit E) and the other count charged in docket number CR04-217777 (Respondent's Exhibit A).
8. The petitioner, through Attorney Comerford, participated in discussions to resolve the new criminal and the violations of probation charges. On March 22, 2006, the court, Clifford, J., indicated for the record that it would impose a sentence of 4 years to serve for a violation of probation charge and either a gun or other charges. Petitioner's Exhibit 2, pg. 1. The offer had been previously been made and the matter had been continued to March 22, 2006, to give the petitioner the time and opportunity to consider accepting the offer. The petitioner did not want to accept the offer of four years to serve. Judge Clifford informed the petitioner that the violation of probation proceeding would not be a jury trial and explicitly advised the petitioner that the state's burden of proof, namely proving a violation of probation by a preponderance of the evidence, would be lower than at a criminal trial. Judge Clifford additionally indicated to the petitioner that his potential exposure was eight years and that the offer would be withdrawn if not accepted. The petitioner stated that he could not accept an offer of four years for something that he did not do. Id., pg. 2.
9. On July 26, 2006, after a hearing on the two violation of probation charges, for which he was represented by Attorney Caroline Comerford, the petitioner was found to have violated the conditions of probation. Petitioner's Exhibit 3, pgs. 219-21. The state presented testimony from the petitioner's probation officer, Amy Cardella; Bristol Police Officers Michael Campisano and William Barnes; Bristol Police Detective Joseph Lobo; as well as from party attendees Joshua Whistnant and Bufford Broadie. The petitioner was the only witness to present defense testimony.
10. Based on the record, as well as the credible testimony and evidence presented during the revocation of probation hearing, the court, Vitale, J., that the state had proved with a preponderance of the evidence that the petitioner had violated the following conditions of probation: to not violate any criminal law of either the United States, this state or any other state; failure to keep his August 30, 2006 scheduled appointment with his probation officer and thereafter apprise her of his whereabouts; possession of alcohol; and possession of a firearm. The court emphasized that it was not concluding a violation of probation occurred as a result of the petitioner's failure to pay restitution because it could not find a willful disobeyance of that condition of probation. Id., pg. 221.
The court concluded that the state had proven that the petitioner had both committed the crimes of possession of a sawed-off shotgun, in violation of General Statutes § 53a-211(a), criminal possession of a firearm, in violation of General Statutes § 53a-217, as well as attempt to commit robbery in the first degree, in violation of General Statutes §§ 53a-49(a)(2) and 53a-134(a)(2). Petitioner's Exhibit 3, pg. 220.
11. Judge Vitale revoked the judgments of probation in both docket numbers CR04-0217777 and CR01-0198541. The court imposed a total sentence of eight years to serve, which was comprised of five years to serve on docket number CR04-0217777 and three years to serve on docket number CR01-0198541, to be served consecutively. Id., pg. 241.
12. On August 30, 2006, the petitioner entered a plea of guilty in docket number CR05-028575 to one count of burglary in the second degree, in violation of General Statutes § 53a-102, and one count of criminal possession of a firearm, in violation of General Statutes § 53a-217. The court, Clifford, J, imposed a sentence of five years to serve on each count, concurrent with each other and other sentences then being served, with two mandatory minimum on the criminal possession of a firearm count. Respondent's Exhibit B. Judge Clifford stayed execution of the sentence until October 4, 2006, at which time the stay was lifted.
The court notes that these are straight guilty pleas. Petitioner's Exhibit 4, pg. 4. The petitioner thereby admitted committing these two offenses while on probation, in direct contravention to his insistence prior to and during the violation of probation proceedings that he did not commit these offenses. The court finds such contradictions severely undermine, if not totally eviscerate, the petitioner's credibility.
13. The prosecuting attorney on all the foregoing dockets and charges was Assistant State's Attorney Paul Rotiroti, Office of the State's Attorney, judicial district of New Britain.
14. At the habeas trial, the petitioner's mother testified that she retained Attorney Comerford to represent the petitioner. Ms. Cotto testified that she spoke frequently with Attorney Comerford and would relay messages between the petitioner and counsel. Ms. Cotto indicated Attorney Comerford thought the petitioner had a good case and that the violation of probation hearing would turn out well for the petitioner. According to Ms. Cotto, although she and the petitioner knew he had a suspended sentence that could be imposed by a judge for a violation of probation, Attorney Comerford reassured them that most judges would not impose more than the four years offered by Judge Clifford to globally resolve all the pending matters short of a revocation of probation hearing.
15. The petitioner testified that Attorney Comerford explained the suspended sentence to him and that his exposure for the violation of probation was eight years. The petitioner stated that he and Attorney Comerford discussed the four-year offer, which the petitioner thought was a good offer and that he wanted to accept, but that Attorney Comerford, although she indicated to him that the state could prove the violation of probation case, said that he had a chance of winning at the hearing. If he lost, however, the sentence he would receive most likely would not exceed the four-year sentence that was offered, but not accepted. According to the petitioner, the scenario purportedly conveyed to him by Attorney Comerford presented him with was a "win-win" situation that involved no risk of going forward with the violation of probation hearing. The petitioner further testified that she explained what evidence the state would present and what it needed to prove to show the violation of probation, as well as that the new criminal charges, such as burglary in the first degree, for which the petitioner was arrested on December 9, 2005. Although the petitioner testified that Attorney Comerford did not explain to him that he could be found to have violated the conditions of probation for drinking alcohol, the petitioner acknowledged that he from his probation officers that consuming alcohol was a violation. The petitioner also testified that Attorney Comerford neither explained the preponderance of the evidence standard, nor the defense that would be put on at the violation of probation hearing, nor go over the police reports and witness statements with him, nor that the probation and police officers would testify and that their testimony alone was sufficient for a finding of probation violation. On cross-examination the petitioner conceded that he was surprised that witnesses such as Whistnant and Broadie showed up at the violation of probation hearing and testified.
16. Attorney Comerford testified as a witness for the respondent after having provided copies of her notes to both counsel for the petitioner and the respondent. Attorney Comerford testified that she provided the petitioner with copies of the police reports and witness statements. The petitioner, according to her, was aware of the potential witnesses, as well as the strength of the state's case. Attorney Comerford's notes reflected that Judge Clifford's offer was extended on March 2, 2006, and that the accept/reject date was nearly three weeks later, on March 22, 2006. The four-year offer was a global settlement offer that would have disposed of all pending charges. Attorney Comerford's notes indicate that the petitioner thought that he would serve 65% of the four-year sentence and that he would not accept an offer that exceeded three years to serve. According to Attorney Comerford, she at length discussed the offer with the petitioner on March 22, 2006, the accept/reject date, and emphasized to the petitioner that the state's case in large part rested on its ability to present testimony from up to potentially eight witnesses who had attended the party. The petitioner, however, was certain that none of these eight witnesses would show up to testify, which heavily factored into his decision to reject the four-year offer. Attorney Comerford testified that she advised the petitioner, given all the circumstances, that he should consider and accept the four-year offer. Although his exposure for the violation of probation alone was eight years, not taking into consideration the exposure stemming from the new charges, the petitioner remained steadfast in holding out for a three-year sentence.
17. The Court will discuss additional facts as needed.
DISCUSSION
The petitioner alleges that Attorney Comerford rendered deficient performance for failing to: adequately advise him with respect to the March 22, 2006 plea offer; meaningfully explain the plea offer to him; provide him with sufficient information to enable him to make an informed and intelligent decision as to whether to accept the offer; sufficiently explain the potential consequences of rejecting the offer; and adequately convey her opinion about whether to reject the offer. The petitioner further asserts that there is a reasonable probability that but for these alleged deficiencies, the result of the proceeding would have been more favorable to the petitioner because he would accepted the offer and been sentenced accordingly.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), 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.
"`The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant 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 unreasonable . . . 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' (Emphasis added; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 [, cert. denied sub nom. Murphy v. Bryant, U.S., 130 S.Ct. 259, 175 L.Ed.2d 242] (2009), quoting Strickland v. Washington, supra, 466 U.S. 689." Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 875-76, 971 A.2d 735 (2009).
As is readily apparent from the foregoing findings of fact, the petitioner's testimony at critical times is diametrically opposed to that of Attorney Comerford. Attorney Comerford here took the somewhat unusual step of providing her notes to both counsel for the petitioner and the respondent. While her notes were not entered into evidence, Attorney Comerford's testimony is highly credible. Conversely, the petitioner's credibility is woefully lacking. The court is unable, for example, to credit the testimony proffered by the petitioner, under oath, that Attorney Comerford advised him that he had a chance of prevailing at the violation of probation hearing.
Based upon the credible evidence presented, the court concludes that Attorney Comerford adequately advised the petitioner regarding Judge Clifford's four-year offer. That offer was meaningfully explained to the petitioner by Attorney Comerford, who also provided the petitioner with sufficient information to enable him to make an informed and intelligent decision as to whether to accept the offer. Furthermore, Attorney Comerford sufficiently explained the potential consequences of rejecting the offer and adequately conveyed her opinion about whether to reject the offer. Simply put, there is no evidentiary basis whatsoever for a finding of deficient performance by Attorney Comerford.
The petitioner's reliance on recent cases such as Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313 (2004) (affirming remedy of habeas court reducing sentence to reflect pending plea offer rejected as result of ineffective assistance of pretrial counsel), cert. denied, 271 Conn. 914, 859 A.2d 569 (2004), and Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010), is misplaced. The import of Sanders and Ebron lies in their treatment of the prejudice prong, as well as the relief granted and fashioned by the respective habeas courts. Those habeas courts first had to conclude that counsel rendered deficient performance during the pre-trial phase. The instant petitioner has presented no credible evidence in support of his allegations that Attorney Comerford somehow performed deficiently. It is well-established that a habeas court can decide a claim of ineffective assistance premised on either Strickland prong, whichever is easier. Strickland v. Washington, supra, 466 U.S. 697. Here, the court need not go beyond the performance prong.
The petitioner has failed to prove ineffective assistance by Attorney Comerford. Therefore, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare a judgment file, which shall be filed with the clerk within thirty days of the date of this decision.
It is so ordered.