Opinion
CV144006308S
06-12-2017
Shannon Roberson v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
William H. Bright, J.
I. INTRODUCTION
This case arises out of an armed bank robbery that the petitioner, Shannon Roberson, admits that he committed. Despite admitting to the robbery and taking approximately $15,000 during the robbery, the petitioner brings this petition for a writ of habeas corpus claiming that his convictions based upon his guilty pleas are unconstitutional because his attorney, Claud Chong, failed to properly investigate the allegations against the petitioner and failed to properly advise him regarding the petitioner's exposure at trial and defenses he had to kidnapping charges he also faced as a result of the robbery. He further claims that in light of Attorney Chong's deficiencies his guilty plea was not knowing and voluntary.
In particular, the petitioner claims that he would have never accepted the plea bargain he was offered on robbery and larceny charges if he knew he had a valid defense, under State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008) to the kidnapping charges. Based on this allegation, the petitioner's Amended Petition raises three " Legal Claims" or counts. The first legal claim is that, in light of Salamon, had the petitioner gone to trial he would not have been convicted of kidnapping. The failure to consider this during plea negotiations prejudiced him. His second legal claim is that Attorney Chong failed to investigate the circumstances of the robbery that showed that there was a valid defense to the kidnapping charges. He then failed to advise the petitioner of that defense, and consequently failed to inform him as to the elements of those charges, the evidence against him, his potential exposure, and his likelihood of success at trial. The petitioner claims that had Attorney Chong done so the petitioner would not have accepted the plea bargain offered him, and would have instead gone to trial. Finally, the petitioner claims that because he was not provided with the above necessary information his plea was not knowingly, intelligently and voluntarily made.
The respondent moved to dismiss the first legal claim as not stating a claim upon which relief can be granted because the petitioner was never convicted of kidnapping. The court agreed and granted the motion to dismiss. The respondent denied the allegations of the second and third legal claims. In addition, he claims that the third claim is procedurally defaulted because the petitioner never moved to vacate his guilty plea. The petitioner has replied claiming that Attorney Chong's deficient performance was the cause for his failure to move to vacate. He further argues that he has been prejudiced because he lost his opportunity to go to trial on the underlying charges.
The case was tried to the court on January 17, 2017. The petitioner presented his own testimony, as well as the testimony of Officer Lisa Steves from the New Britain Police Department to authenticate records regarding the petitioner's arrest, Rhona Fuller, Jadwiga Panus and Monika Gromowski, the three bank employees confronted by the petitioner when he robbed the bank, Attorney Chong, and Thomas Farver, a Connecticut attorney who specializes in criminal matters. The respondent cross-examined the petitioner's witnesses, and recalled Attorney Chong. The court also received as exhibits the transcripts related to the petitioner's court appearances, including his guilty plea and sentencing, police reports related to the petitioner's arrest, a copy of his court file, and the long form information dated May 15, 2008 charging the petitioner with two alternative counts of robbery in the first degree, one count of larceny in the first degree, and three counts kidnapping in the first degree. Following the trial, the parties submitted post-trial briefs.
II. FINDINGS OF FACT
Based on the evidence presented, the court finds the following facts. On August 8, 2007, at approximately 7:30 a.m., Monika Murach (n/k/a Monika Gromowski) and Rhona Fuller arrived for work at the Farmington Savings Bank branch on Broad Street in New Britain. After parking their cars they proceeded together to the bank where they both worked as tellers. As Fuller opened the outer rear door to the vestibule of the bank the petitioner approached the two women from behind, ordered them to open the inner door and get inside. The petitioner had a gun in his waistband. Jadwiga Panus, the branch manager, came out of her office as the petitioner entered the bank with the two women. The petitioner drew his gun from his waistband, pointed it at the women, told them this was a robbery, and demanded money from them. The petitioner told the women that if they gave him money he would not kill them. He also told them that if they set off any silent alarms and did not tell him, he would kill them. The petitioner then ordered the women to open the bank's vault. Panus and Fuller opened the door of an outer vault in which the main vault was located. The petitioner then directed the women into the outer vault to open the door to the main vault. Panus told the petitioner that they did not have the combination to do so. The petitioner again demanded money, and Fuller told him that there was money in their teller cash drawers. Those drawers were located in the outer vault. Fuller and Murach were then forced to open their teller cash drawers and place the money from them into a bag the petitioner was carrying. Between the contents of the two drawers, the petitioner took possession of approximately $15,000. By this time, the police, having received a 911 call from a witness who saw the petitioner engaging in the robbery, had arrived at the bank. The petitioner fled the bank. When he did, the three women left the vault and hid in another room until the police arrived. When the petitioner left the bank he was immediately confronted by police who shot him, disarmed him and retrieved the stolen cash. The petitioner was transported to the hospital where he spent months recovering from his injuries. The robbery was recorded on the bank's videotape system. On August 9, 2007, the petitioner was arraigned in abstentia while he was in the hospital. During that hearing, the prosecutor noted that the petitioner had a felony conviction from Michigan. The court set bail at one million dollars. Attorney Chong was subsequently appointed to represent the petitioner and visited with him a number of times in the hospital. The petitioner made his first court appearance on the charges arising out of the bank robbery on March 13, 2008. On April 23, 2008, the petitioner again appeared in court. Judge Alexander communicated an offer to the petitioner of twenty years to serve. In doing so, she told the petitioner that he faced up to ninety-five years in jail for the robbery and three kidnapping charges he faced. She said that the offer was based on the strength of the state's case, the presence of a weapon, and the petitioner's criminal history. Judge Alexander did not mention the larceny charge. The petitioner rejected the court's offer, saying he needed more time with Attorney Chong. On September 8, 2008, Judge Alexander called the petitioner's case in to inform the petitioner and counsel that they would be starting jury selection the next day. The petitioner told the court that he was unhappy with Attorney Chong and wanted to fire him. The petitioner claimed that he had asked for transcripts and other information that he had not received. Judge Alexander then confirmed with the state's attorney that he had followed his office's open file policy and provided all information he had to Attorney Chong. Attorney Chong then confirmed that he had provided the petitioner will everything he had received from the state. Judge Alexander found that there were no grounds to remove Attorney Chong and told the attorneys to report the next day for jury selection. Before leaving the courtroom the petitioner stated that he was still not interested in the court's earlier plea offer.
The gun the petitioner was carrying turned out to be a toy gun. The victims did not know that though and were understandably in fear for their lives during their encounter with the petitioner.
The next day, the petitioner changed his mind. On September 9, 2008, the petitioner entered straight guilty pleas to one count of robbery in the first degree and one count of larceny in the first degree. The agreed upon sentence on the robbery charge was twenty years to serve. The agreed upon sentence on the larceny charge was one year to serve, consecutive to the robbery charge. Hence, the petitioner's total effective sentence was twenty-one years to serve. The state entered nolles on the other charges the petitioner faced, including the three kidnapping charges. Consequently, Judge Alexander informed the petitioner that his total exposure on the charges to which he was pleading guilty was forty years. She also went over in detail the elements of each of the offenses and asked the petitioner if he understood each charge. The petitioner responded that he did. The court also confirmed that the petitioner had discussed his pleas with Attorney Chong. The petitioner stated that nobody forced him to enter the pleas and that they were of his own free will. Despite the agreed upon sentence, Judge Alexander informed the petitioner that she intended to order a presentence investigation. At no time during this court appearance did the petitioner express any dissatisfaction with Attorney Chong or any ambivalence about his decision to plead guilty.
The petitioner returned to court to be sentenced on November 7, 2008. During the sentencing, the court was informed that the petitioner had a long criminal history in Michigan that included felony fraud, felony larceny and felony armed robbery. In fact, the petitioner was released from parole on the felony armed robbery in January 2007, just seven months before the armed robbery at Farmington Savings Bank. The petitioner declined to say anything before the court imposed sentence. Before imposing sentence, Judge Alexander detailed the factors that warranted a significant prison sentence, including: the violent nature of the robbery; the theft of over $15,000 of other people's money to go gambling at a casino; attempting to flee from the bank, thereby forcing the police to discharge their weapons in a public area; and the strength of the state's case. Based on the above, Judge Alexander stated that twenty-one years was an appropriate sentence. Judge Alexander then commented that the petitioner acknowledged that had he been convicted on all of the counts originally charged, presumably including the three kidnapping charges, he faced a sentence of over one hundred years. The petitioner never asked to withdraw his plea.
Between when the petitioner rejected the court's first plea offer in April 2008 and when he pled guilty on September 9, 2008, our Supreme Court, on July 1, 2008, issued its decision in State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092 (2008). While Attorney Chong was aware of that decision when the petitioner entered his guilty pleas, the evidence established that it is more likely than not that Attorney Chong did not specifically discuss the case with the petitioner. Furthermore, because the petitioner was not pleading guilty to any kidnapping charges, Attorney Chong did not discuss with the petitioner on September 9, before he entered his pleas, the elements of kidnapping and the state's evidence regarding any such charges under Salamon .
Nor did Attorney Chong interview any of the three bank employees before the petitioner entered his guilty pleas. Attorney Chong reviewed their statements to the police and watched the bank's surveillance video of the robbery. Based on that information and the fact that the petitioner was apprehended as he left the bank with the stolen money in hand, Attorney Chong concluded that no further investigation was necessary. In fact, attorney Chong believed that the case was " not triable." Additional facts will be discussed as necessary.
III. DISCUSSION
A. Count Two--Ineffective Assistance of Counsel
In Count Two of his amended petition the petitioner claims that he was deprived of his constitutional right to the effective assistance of counsel. In particular, he claims that Attorney Chong's performance was constitutionally deficient because Attorney Chong: 1) failed to conduct a proper investigation of the case; 2) failed to engage in effective plea negotiations; and 3) failed to appropriately advise the petitioner of the elements of the offenses with which he was charged, the evidence against him, his exposure, and the likelihood of success at trial.
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). Under that test, the petitioner has the burden to 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; emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 687. " To satisfy the performance prong; a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
" 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." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 687; Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). " The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, supra, 290 Conn. 522. When the conviction resulted from a guilty plea, the petitioner must demonstrate " that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Johnson v. Commissioner of Correction, supra, 576, quoting Hill v. Lockhart, supra, 474 U.S. 59; Carraway v. Comm'r of Corr., 144 Conn.App. 461, 476, 72 A.3d 426 (2013).
" It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
The petitioner first claims that Attorney Chong's performance was deficient because he failed to conduct an adequate investigation. In particular, he failed to interview the three bank employees present during the robbery.
" The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him); see also Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (petitioner could not succeed on claim of ineffective assistance on basis of counsel's failure to conduct proper investigation in absence of showing that he was prejudiced by counsel's failure to interview witnesses)." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).
The petitioner claims that the testimony of Fuller, Panus and Gromowski established that their detention by the petitioner during the robbery was merely incidental to the robbery and did not meet the Salamon test for kidnapping. The petitioner argues that had Attorney Chong interviewed them he would have learned this and could have used that information to negotiate a better plea or properly advise the petitioner that he had a high chance of receiving an acquittal on the kidnapping charges if he went to trial.
The problem for the petitioner is that there was nothing new in the witnesses' testimony. Their testimony was entirely consistent with the police reports that both Attorney Chong and the petitioner had. In addition, Attorney Chong and the petitioner had viewed the surveillance tape of the robbery which showed exactly how the petitioner restricted the movements of the three bank employees. Attorney Chong had all of the information that was available to make the argument the petitioner claims should have been made or to advise the petitioner on his chances of prevailing on the kidnapping charges. Given all of the information available to Attorney Chong at the time he advised the petitioner, including the videotape, the court cannot find that his decision not to interview the three bank employees was unreasonable. This is particularly true because the state ultimately did not pursue the kidnapping charges and the petitioner pled guilty to two charges as to which there were no defenses. In addition, because the testimony of the witnesses mirrored their statements to the police, the petitioner has failed to establish any prejudice from Attorney Chong's failure to interview them.
Second, the petitioner claims that Attorney Chong failed to use effectively the Salamon decision during plea negotiations. The claim is without merit. The petitioner has failed to provide any evidence that a better offer could have been negotiated with the state or obtained from the court. The court has no reason to believe that Judge Alexander was not aware of the Supreme Court's decision in Salamon when she conveyed the court indicated sentence which the petitioner accepted on September 9, 2008. The petitioner has not presented a scintilla of evidence to prove that Attorney Chong could have done anything to get a better result from the court. To the contrary, Judge Alexander clearly stated at the petitioner's sentencing that the twenty-one year sentence was appropriate given the nature of the robbery and the petitioner's criminal history. The best the petitioner can do is state in his post-trial brief that " it is unclear whether Salamon had been taken into consideration by any of the parties." Petitioner's Post-Trial Brief at p. 10. It was the petitioner's burden to present evidence to resolve this alleged lack of clarity in the petitioner's favor. He failed to do so.
Finally, the petitioner argues that because Attorney Chong did not explain the import of Salamon to him, he could not make an informed decision based on accurate information. In particular, the petitioner argues that had he known that he had good defenses to the kidnapping charges, thereby significantly reducing his exposure at trial, he would have rejected the court's indicated sentence and gone to trial. Based on this, the petitioner asks that the court conclude that Attorney Chong was deficient in failing to discuss with the petitioner the elements of kidnapping and his likelihood of success at trial in light of Salmon .
The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
" In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. 1407. Similarly, " 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.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. 1407-1408; see Lafler v. Cooper, supra, 132 S.Ct. 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. 1408.
" Although this decision [to plead guilty] 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." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.
The petitioner does not dispute that he was correctly advised of his exposure and risks regarding the kidnapping charges when the court made its initial offer to the petitioner on April 23, 2008. Instead, he claims that he was never given an updated analysis after the Supreme Court issued its decision in Salamon . The evidence supports this claim. It appears that because the state offered, on September 9, 2008, to accept guilty pleas on the robbery and larceny charges and to enter nolles on the kidnapping charges, Attorney Chong believed that there was no need to discuss with the petitioner his exposure to the kidnapping charges if he went to trial. The petitioner testified that had he known how the decision in Salamon reduced his exposure on the kidnapping charges he would have never pleaded guilty.
The court need not address whether Attorney Chong's failure to discuss with the petitioner the kidnapping charges in light of Salamon constituted deficient performance because the court does not find credible the petitioner's testimony that he would have gone to trial. The petitioner had no defense to the armed robbery and larceny charges. He faced an almost certain conviction on those charges and a maximum sentence of forty years. At sentencing following a trial, the court would certainly consider the violent nature of the robbery, including that the petitioner held what appeared to be a fully functioning gun to the heads of the victims and threatened to kill them if they did not cooperate. Furthermore, the petitioner knew he had an extensive criminal history, including having just served a significant sentence for an armed robbery in Michigan.
Finally, the petitioner's claim that the Supreme Court's decision in Salomon meant that he had little exposure on the kidnapping charges reflects a misunderstanding of that decision. Prior to the Salamon decision, the firmly established rule in Connecticut was that a defendant could be convicted of a kidnapping when committed in conjunction with another crime, even if the movement or restraint of the victim was only incidental to that other crime. See State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). " In [State v. Salamon, supra, 287 Conn. 509], our Supreme Court reconsidered its interpretation of Connecticut's kidnapping statutes . . . Ultimately, the court concluded that [o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime . . . The court stated that [the] holding [in Salamon was] relatively narrow and [that it] directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping." State v. Strong, 122 Conn.App. 131, 140-41, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010). As the Supreme Court made clear, this is an inherently fact specific inquiry typically left to the jury. " [A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case . . . For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense." (Footnote omitted.) State v. Salamon, supra, 287 Conn. 547-48.
Thus, had the petitioner gone to trial, he still would have faced the possibility of conviction on the three kidnapping charges. For example, the jury could have determined that it was not necessary for the petitioner to force both Fuller and Murach into the bank. Furthermore, the jury could have determined that it was not necessary for the petitioner to restrain all of the victims at gunpoint to commit the robbery. Put another way, while the Supreme Court's decision in Salamon may have lessened the risk of conviction on the kidnapping charges., it did not eliminate that risk.
Given the virtually certain exposure the petitioner faced on the robbery and larceny charges and the possible exposure he faced on the kidnapping charges, his testimony that he would have gone to trial if better informed is just not credible. His agreed upon sentence was approximately one-half of the sentence he faced on charges he was certain to be convicted of. While the petitioner rejected a similar offer in April, under the circumstances, the court does not believe that the petitioner ever intended to try the case. Instead, the court concludes that it is more likely than not that the petitioner was merely delaying the acceptance of any offer in. the hope that he would receive a better one. This conclusion is supported by both the strength of the state's case and the petitioner's extensive criminal history. It is also supported by the petitioner's attempt on September 8, 2008 to delay his trial by asking for a new attorney, even though the facts and evidence surrounding the robbery were known to the petitioner and undisputed. When that tact failed, and it became clear to the petitioner on the day of trial that no better offer would be made, he rationally accepted the sentence offered as the best possible outcome rather than going forward with a trial he would certainly lose. He did so while expressing no further dissatisfaction with Attorney Chong and without expressing any ambivalence about his decision. Because the petitioner has failed to prove by a preponderance of the evidence that he would have rejected the court's offer and gone to trial had he been advised differently, he has failed to prove any prejudice under the second prong of Strickland .
B. Count Two--Voluntariness of the Guilty Plea
In Count Three of his amended petition the petitioner claims that his guilty pleas on September 9, 2008 to the charges of robbery in the first degree and larceny in the first degree were not voluntary. In particular, he claims that Attorney Chong's failure to properly advise him of his exposure on the kidnapping charges, which were nolled, undermines the voluntariness of his subsequent plea.
" 'Guilty pleas must be intelligent, voluntary and knowing . . . A defendant must be aware of all direct consequences of his plea . . . Where the petitioner relied on gross misadvice about an indirect consequence, his plea would have been involuntary, unintelligent and, therefore, invalid.' (Citation omitted; internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 709, 846 A.2d 889 (2004). 'Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts . . . An essential part of understanding the law as it applies to the facts is knowing the maximum amount of time that the defendant could spend in confinement.' (Citation omitted; internal quotation marks omitted.) Duperry v. Solnit, 261 Conn. 309, 320, 803 A.2d 287 (2002)." Williams v. Comm'r of Corr., 120 Conn.App. 412, 418-19, 991 A.2d 705 (2010).
There is no question that the petitioner was fully canvassed and advised on the charges to which he pleaded guilty. Instead, he claims that he was not properly advised on charges to which he was never asked to plead guilty, and were, in fact, dropped.
The Appellate Court considered a similar claim in Williams . In that case, the petitioner claimed that his guilty plea was involuntary because his counsel had misadvised him as to his maximum exposure on certain charges to which he had not pleaded guilty. The Appellate Court agreed that the petitioner's trial counsel " was ineffective when he provided the petitioner with incorrect information regarding the maximum possible sentence he was facing on several of the dockets." 120 Conn.App. at 423. In particular, counsel had advised the petitioner that he faced thirty years in jail on certain charges when the actual exposure was only eleven years. Id. Despite counsel's ineffectiveness, the court determined that the petitioner was not entitled to relief because the court was " not persuaded by the petitioner's self-serving contention that had counsel provided him with accurate information, he would not have accepted the plea agreement and would have gone to trial." Id., 425. In essence, the court applied the same analysis as is required under the second prong of Strickland . Consequently, the court concluded that, " [a]lthough we agree that counsel gave inaccurate information to the petitioner, we conclude that such misinformation did not affect the constitutionality of the petitioner's plea." Id., 422.
Here, the petitioner does not claim that he was not properly advised as to the maximum exposure on the kidnapping charges. Instead, his claim is that he was not properly advised on the elements and strength of the state's case on those charges. The court need not address the merits of this claim because it has determined, for the reasons set forth above, that the petitioner's decision to plead guilty would have been no different had he received a more thorough analysis of the Salamon decision from Attorney Chong. This court's analysis of the evidence, including the self-serving testimony of the petitioner, leads it to the same conclusion reached by the Appellate Court in Williams . Any misinformation, or lack of information, did not affect the constitutionality of the petitioner's plea.
IV. CONCLUSION
For the foregoing reasons, the petition is denied and judgment shall enter for the respondent.