Opinion
No. CV 07 4001965
May 24, 2011
MEMORANDUM OF DECISION
On September 6, 2007, the petitioner, Joseph Shehan, filed a petition for a writ of habeas corpus, which was amended on August 14, 2009. The petitioner claims that he was denied the effective assistance of trial counsel in violation of his state and federal constitutional rights in a number of ways, to wit: counsel failed to ensure that the petitioner's plea to the murder charge was entered under the Alford doctrine as the petitioner had instructed him to do; counsel failed to properly pursue the defense that the petitioner had to the murder charge; counsel led the petitioner to believe that he would be eligible for consideration for parole if he accepted the court indicated sentence. For reasons stated more fully below, the petition is denied.
The matter came to trial on May 19, 2010. The Court heard testimony from the petitioner and his trial counsel, Attorney William Grady. The petitioner offered no exhibits. The respondent entered into evidence the information in the petitioner's case, the substituted information, a transcript of the plea hearing, a transcript of the sentencing hearing, the mittimus and a psychiatric and psychological evaluation of the petitioner. The petitioner and the respondent filed post-trial briefs on April 11, 2011 and May 11, 2011, respectively.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Middletown, bearing docket number CR01-156023, in which he was charged with felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, burglary in the first degree in violation of General Statutes § 53a-101(a)(2), robbery in the first degree in violation of General Statutes § 53a-134(a)(1) and larceny in the first degree in violation of General Statutes (Rev. to 2003) § 53a-122(a)(3).
2. At all times relevant to the petitioner's claims, he was represented by Attorney William Grady. Attorney Grady has practiced law in the state of Connecticut since 1984. His practice has primarily been in two areas: criminal defense and child protection work. He testified that he has handled hundreds of criminal matters, ranging from murders to minor misdemeanors, and that he has taken about twenty cases to trial.
3. On August 16, 2004, the petitioner entered guilty pleas to the crimes of murder, burglary in the first degree, robbery in the first degree and larceny in the first degree.
Respondent's Exhibit [Exh.] C, pp. 1-2.
4. The factual allegations underlying the charges, as summarized by the prosecutor at the petitioner's plea hearing are as follows: "This incident took place here in Middletown . . . sometime between November 27, 2000 and one a.m. on November 28, 2000. The victim in the case, Louis Welock (phonetically), was working at the Cromwell Diner. Now, earlier that evening, the [petitioner] . . . had gone over to the residence of Cane Gouldsbrough, who was a named codefendant in this case . . . [The petitioner] went over there with, according to him, the intention of apologizing to the victim . . . for a slapping incident which occurred a week or so prior at the Cromwell Diner where . . . the two had an argument about [the petitioner's] child with Ms. Gouldsbrough . . . [A]lthough he went there with the intention of apologizing . . . Carie Goldsbrough, [who was living with the victim at the time and who is the stepdaughter of the victim] . . . had told him that the victim had forced [her] to sleep [with him] in the same bed . . . And that the victim . . . would proceed to masturbate in bed next to [her]. Ms. Gouldsbrough had also given a statement to the police stating that she had told [the petitioner] that the victim had tried to make sexual advances toward her, and that this in turn enraged and riled up [the petitioner] . . .
5. "When the victim arrived home from the Cromwell Diner . . . both the victim and [the petitioner] had gotten into a big argument. Now, [the petitioner] claimed that the victim had struck him first and . . . a physical fight then ensued, in which . . . the victim was hit repeatedly by [the petitioner] . . . with a broken bottle. He had received numerous cuts as well, multiple incise wounds according to the autopsy report. The victim ultimately died from blunt head trauma, and he bled to death.
6. "During this assault, Ms. Gouldsbrough was in the bathroom. She came out and saw the victim all bloodied up . . . [The petitioner] had asked her to hand him an extension cord . . . which she proceeded to do. [The petitioner] proceeded to hogtie the victim's hands and feet were both bound by this electrical cord. He then requested Ms. Gouldsbrough to write a note . . . Ms. Gouldsbrough suggested that they leave the apartment. And they took the victim's wallet, his watch, and other personal effects of his and then proceeded to steal his brand new 2000 Chevy pickup truck which was right outside the residence.
7. "Additionally, Carie Gouldsbrough had indicated that she was of the opinion that when they left the apartment, the victim was still alive because he was twitching. They then got into the victim's truck . . . proceeded to get high on drugs, went to a mall . . . proceeded to discard the clothing [the petitioner] was wearing, presumably to help get rid of the evidence, bought new clothing with the victim's credit cards.
8. "They then proceeded to head down south. They ultimately ended up in Atlanta or the surrounding areas where there was a warrant for [the petitioner's] arrest for murder . . . I should note that because it was a brand new pickup truck . . . the fair market value was clearly in excess of $10,000."
Respondent's Exh. C, pp. 2-6.
9. On December 6, 2004, the court, Holzberg, J., sentenced the petitioner on all four charges to a total effective sentence of thirty-two and a half years to serve.
Exh. B, pp. 13-14.
10. Additional facts will be discussed as needed.
DISCUSSION
"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." Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200, cert. granted on other grounds, 297 Conn. 912, 995 A.2d 954 (2010). "[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Emphasis in original; internal quotation marks omitted.) Id., 572.
"[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing 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 . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Hall v. Commission of Correction, 124 Conn.App. 778, 782-83, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). Additionally, the petitioner must show that he likely would have fared better had he gone to trial. See Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995) (" Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial"). "In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commission of Correction, supra, 783.
The petitioner first alleges that his trial counsel rendered ineffective assistance by failing to ensure that he made his guilty plea to the charge of murder under the Alford doctrine. A review of the transcript of the petitioner's plea hearing supports his contention. After the petitioner pleaded guilty to the murder charge, Attorney Grady stated: "And the other three pleas will be under the Alford [d]octrine, Your Honor." At the habeas trial, Attorney Grady testified that he intended for all the petitioner's pleas to be made under the Alford doctrine but acknowledged that his statement at the plea hearing indicated otherwise. Although Attorney Grady failed to ensure that the petitioner pleaded guilty to the charge of murder under the Alford doctrine, further review of the transcript of the petitioner's plea hearing reveals that despite this "error," the trial court accepted all the petitioner's pleas under the Alford doctrine. Accordingly, Attorney Grady's "error" did not result in any prejudice. In his post-trial brief, the petitioner argues "that, at best, the situation created is one of confusion" and that in the event that the petitioner ever becomes eligible for parole by legislative change, his chances of being paroled will be prejudiced by his "straight guilty plea" to murder. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). As it stands, having been convicted of murder, the petitioner is not parole eligible. See General Statutes § 54-125a(b)(1) ("[n]o person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section . . . murder, as provided in section 53a-54a . . ."). Any future parole eligibility for the petitioner or prejudice thereto resulting from his "straight guilty plea" to murder is purely speculative, especially since the trial court accepted all the petitioner's pleas, including his plea to murder, under the Alford doctrine. Consequently, this claim fails.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). "A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 225 n. 1, 965 A.2d 608 (2009).
Exh. C, p. 1.
The following colloquy occurred during the petitioner's plea canvass:
"The Court: Now, you've plead guilty under the Alford [d]octrine. That means that you don't necessarily — in fact, you may disagree with many or all the facts as recited by [the assistant state's attorney] involving your involvement in this case. But you're pleading guilty anyway because you believe that based on those facts, even though you may disagree with them, there is a substantial probability that if a jury were to hear those facts, they would convict you of these crimes.
"[The petitioner]: That would be accurate." Respondent's Exh. C, pp. 12-13; see also Respondent's Exh. A (indicating " Alford" for all the petitioner's guilty pleas).
The petitioner next claims that Attorney Grady rendered ineffective assistance by not properly pursuing the defense that the petitioner had to the murder charge. At the habeas trial, the petitioner testified that Attorney Grady and he discussed possible defenses and the feasibility of proceeding to trial. He further testified that he believes that he could have gotten the murder charge reduced to manslaughter through the use of an extreme emotional disturbance (EED) defense. Attorney Grady testified that the petitioner conceivably had an EED defense to the murder charge, as the psychiatric experts who he had evaluate the petitioner believed there was support for an EED defense. However, he testified that the state's psychiatric expert, who also evaluated the petitioner, did not find any support for an EED defense. Accordingly, Attorney Grady explained that although the petitioner potentially had an EED defense it did not necessarily mean that the defense would prevail at trial, as the jury could have believed the state's expert over the petitioner's experts. Attorney Grady also testified that the petitioner did not have any viable defenses to the other charges and that even if the EED defense successfully reduced the murder charge to manslaughter, the petitioner would still have been exposed to more than thirty-two and a half years incarceration. He accordingly recommended that the petitioner take the plea offer of thirty-two and a half years.
The petitioner has not met his burden in demonstrating that Attorney Grady deficiently pursued an EED defense. Attorney Grady had two psychiatric experts evaluate the petitioner, and he used their reports to negotiate a plea offer of thirty-two and a half years. As described by the assistant state's attorney at the petitioner's plea hearing, the state initially extended an offer of forty-five to fifty years. The judge said forty years. After Attorney Grady had the petitioner evaluated, the state offered thirty-five years to serve, and the judge offered thirty-three. Ultimately, Attorney Grady was able to get the judge to agree to thirty-two and a half years. "Reasonably competent attorneys may advise their clients to plead guilty even if defenses exist." (Internal quotation marks omitted.) Hill v. Commissioner of Correction, 117 Conn.App. 867, 876, 982 A.2d 224 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1056 (2010). As Attorney Grady explained, there was no guarantee that the EED defense would have been successful at trial and even if it did succeed, the petitioner would still have been exposed to at least eighty years incarceration. A known sentence of thirty-two and a half years was far better than facing an unknown sentence of as much as eighty years (if the EED defense succeeded) or one hundred and twenty years (if the EED defense did not succeed). It is also worth noting that the petitioner had fourteen prior felony convictions. Accordingly, Attorney Grady's handling of the EED defense and his recommendation that the petitioner plead guilty even though he may have had a defense to the murder charge clearly "falls within the wide range of reasonable professional assistance." Id., 876. Based upon the above, this claim also fails.
Respondent's Exh. C, pp. 7-9.
Lastly, the petitioner claims that Attorney Grady misadvised him regarding his eligibility for parole. Trial counsel is not required to advise the defendant about parole eligibility for the defendant to enter guilty pleas validly and with the effective assistance of counsel. See Hall v. Commission of Correction, supra, 124 Conn.App. 778. However, "where trial counsel has rendered gross misadvice on the issue of parole eligibility, and a defendant has relied on that misadvice in entering a guilty plea, the plea is invalid as it was neither voluntary nor intelligent." Id., 785. At the habeas trial, the petitioner testified that he asked Attorney Grady if he would be eligible for parole if he pleaded guilty to murder and that Attorney Grady responded, "I'm not sure, but you could probably get 85 percent." Attorney Grady testified that he and the petitioner discussed the topic of parole on numerous occasions and that they "both knew that 32-and-a-half was 32-and-a half." That is, they knew that the petitioner would not be eligible for parole if he accepted the plea offer and pleaded guilty to murder. He further testified that they discussed the possibility that he could catch a break in twenty-five to thirty years through a legislative change rendering him parole eligible despite his murder conviction. However, Attorney Grady maintained that he never told the petitioner that he would be eligible for parole then or later.
May 19, 2010 Habeas Trial Transcript, pp. 6-7.
May 19, 2010 Habeas Trial Transcript, p. 22.
The petitioner's self-serving testimony that Attorney Grady, who had been practicing criminal defense for approximately twenty years by the time he represented the petitioner, led him to believe that he would be eligible for parole if he accepted the plea offer is not credible. This Court credits Attorney Grady's testimony that both the petitioner and he knew that the petitioner would be ineligible for parole if he took the plea offer whereby he would have to plead guilty to murder, among other charges. There is no credible evidence that Attorney Grady misadvised the petitioner regarding his eligibility for parole.
In any event, even if this Court had found that Attorney Grady misadvised the petitioner, the petitioner's claim would still fail for lack of a showing of prejudice. In other words, the petitioner has not met his burden in demonstrating that, absent his misunderstanding regarding his parole eligibility, he would not have pleaded guilty and would have insisted on going to trial where he would have fared better. Although the petitioner testified at the habeas trial that he would have gone to trial had he known that by accepting the plea offer he would be ineligible for parole and that he believed his EED defense had a good chance of reducing the murder charge to manslaughter, he went on to testify that Attorney Grady got him "a good number for the [murder] charge" and that he was aware that he likely would have gotten more time even if his EED defense succeeded at trial. He also admitted that he accepted the plea because he wanted to take advantage of the offer of thirty-two and a half years. As noted supra, there was no guarantee that the petitioner's EED defense would prevail at trial and even if it did, the petitioner would nonetheless be exposed to substantially more time than that offered by the court. The petitioner has not shown that parole eligibility played any role, let alone a substantial role, in his decision to take the plea offer. In light of the above, this claim fails.
May 19, 2010 Habeas Trial, pp. 11-12.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.