Opinion
CV164008331S
08-13-2018
Steven ROYSTER (Inmate #235351) v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner, Steven Royster, initiated this petition for a writ of habeas corpus, claiming that underlying trial counsel provided him ineffective legal representation. The petitioner seeks an order from the court vacating his sentence and releasing him from confinement. The court heard evidence on April 16, 2018. Having considered the credible evidence and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
On August 8, 2013, in accordance with the terms of a Garvin plea agreement, the petitioner pleaded guilty to one count of burglary in the third degree in violation of General Statutes § 53a-102. At the time of the plea, the recommended sentence was a maximum of five years of incarceration, execution suspended after one year, with three years of probation, and the right to argue for a lesser sentence at sentencing. The court, Fuger, J., conducted a Garvin canvass, advising the petitioner that any failure by the petitioner to appear in court on the sentencing date or acquire new criminal cases based on judicial findings of probable cause would result in a term of incarceration of up to ten years to serve. The petitioner was scheduled to be sentenced on October 8, 2013. On that date, the court, Taylor, J., rescheduled the petitioner’s sentencing for October 21, 2013. At that time, the court informed the petitioner that the Garvin canvass remained in effect and told the petitioner to be back at the court for sentencing by 9:00 A.M on that date. On October 21, 2013, the court, Fuger, J., sentenced the petitioner in absentia to ten years of incarceration, execution suspended after six years, and three years of probation. Attorney William Horan represented the petitioner at all relevant times.
"A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by the defendant’s violation of a condition of the agreement." State v. Rosado, 92 Conn.App. 823, 825 n.3, 887 A.2d 917 (2006); State v. Stevens, 85 Conn.App. 473, 474 n.2, 857 A.2d 972, cert. granted on other grounds, 272 Conn . 902, 863 A.2d 695 (2004). The source of the plea name is State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).
The petitioner initiated the present habeas petition on August 29, 2016. In his amended petition, filed on July 27, 2017, the petitioner claims that his trial counsel, Attorney Horan, was ineffective in (1) failing to advocate on the petitioner’s behalf during the sentencing proceeding; (2) failing to request a continuance, request that the court pass the matter or otherwise seek to protect the rights of the petitioner when he knew or reasonably should have known the petitioner would not be able to be present in court at the assigned date and time; (3) indicating to the sentencing court that he did not expect the petitioner to be present in court at all when he knew or reasonably should have known that the petitioner would in fact be arriving at court soon thereafter; (4) failing to advise to the sentencing court that the petitioner had been present for all prior court dates; and (5) offering additional statements at the sentencing hearing containing further damaging information, including but not limited to, signaling or implying to the sentencing court the petitioner’s continued use of illegal substances. The respondent filed a return on February 26, 2018, leaving the petitioner to his proof.
A trial was held on April 16, 2018, at which the petitioner called as witnesses Attorney Jeffrey Kestenband as an attorney expert and himself. Both parties presented exhibits to the court, including the transcripts of prior proceedings and the petitioner’s presentence investigation report.
II
DISCUSSION
"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).
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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694.
"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, at 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). When assessing trial counsel’s performance, the habeas court is required to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, at 466 U.S. 689.
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.) 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.
Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686.
The petitioner’s claims allege that Attorney Horan’s performance at his sentencing hearing was ineffective in failing to properly advocate on his behalf or protect his rights when the petitioner failed to appear in court. The petitioner has failed to sustain his burden of establishing prejudice with respect to his claims.
The record reveals the following. There is no evidence before the court that the petitioner arrived in the courtroom on his sentencing date. The petitioner’s own testimony indicates that he received a phone call on his way to the courthouse and never went inside the courtroom. The court, Fuger, J., was clear in the Garvin canvass conducted as to the consequences the petitioner faced if he failed to appear, and the petitioner acknowledged that he understood these consequences. The petitioner was informed at his prior court date to arrive for his sentencing at 9:00 A.M., and that the Garvin canvass remained in effect. The petitioner was not present when the sentencing proceeding commenced at 10:45 A.M. Attorney Horan was present in the courtroom for the petitioner’s sentencing and acknowledged that he understood the ramifications of the petitioner’s failure to appear resulting from the Garvin plea agreement. Attorney Horan further informed the court that although the petitioner had a substance abuse problem, he had been clean throughout the duration of his case. Attorney Horan also presented supporting letters and reports from employers, clinicians and house managers from the petitioner’s sober house to be taken into consideration by the court in sentencing the petitioner. The court also obtained the petitioner’s presentence investigation report, which indicated that the petitioner failed to cooperate in providing requested documentation.
As set forth above, the prejudice prong of the Strickland analysis requires "a reasonable probability that, but for [counsel’s ineffectiveness], the outcome would have been different." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, supra, 290 Conn. 522. Based on the record, the court finds that the petitioner failed to establish that a reasonable likelihood exists that but for Attorney Horan’s performance, the outcome of the petitioner’s sentencing would have been different. There is no evidence that the petitioner was prejudiced by Attorney Horan’s representation at the proceeding, particularly in light of the court’s canvass and warnings specifically referencing the consequences likely to occur if the petitioner failed to appear for sentencing. Even if Attorney Horan had performed everything the petitioner alleged he failed to do, there is no evidence that the sentencing court would have given him a different sentence than what he received. Thus, the petitioner has failed to prove that he was prejudiced by counsel’s performance.
The court need not address the deficiency prong of Strickland because it finds that the petitioner has failed to prove prejudice. "[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Aillion v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989), quoting Strickland v. Washington, 466 U.S. 697; King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002) ("[b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong"), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). Therefore, the petitioner’s claims must be denied.
The petitioner further alleges that the circumstances warrant that prejudice be presumed in connection with his ineffective assistance of counsel claims. See United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (finding presumption of prejudice exists in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified"). This claim has no merit.
"[I]n certain types of cases, prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost, and so it is presumed. [Strickland v. Washington, supra, 466 U.S. 692.] This occurs when (1) the defendant is denied counsel at a critical state; (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; or (3) counsel is called upon to represent a client in circumstances under which no lawyer could provide effective assistance ... [C]ases have emphasized that the second Cronic exception is exceedingly narrow ... For it to apply, the attorney’s failure must be complete ... [C]ourts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice." (Citations omitted; internal quotation marks omitted.) Hutton v. Commissioner of Correction, 102 Conn.App. 845, 855-56, 928 A.2d 549, cert. denied, 284 Conn. 917, 931 A.2d 936 (2007).
This case does not present the exceptional circumstances warranting a presumption of prejudice. It is clear from the record that Attorney Horan provided supporting documentation and made remarks on the petitioner’s behalf to the sentencing court, and therefore did not completely fail to represent the petitioner at the proceeding. This claim must also fail.
C
III
CONCLUSION
Accordingly, the petitioner’s petition for writ of habeas corpus is hereby denied.