Opinion
No. TSR CV04-4000271-S
July 16, 2008
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed by and through counsel. The petition, which was not further amended, raises a single claim, namely that Attorney Christian Bujdud provided ineffective assistance of counsel when he represented the petitioner in his underlying criminal matters. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.
The matter came before the court on December 20, 2007, for a trial on the merits. On that date the court denied the respondent's oral motion to dismiss and granted the petitioner's oral motion for permission to amend the petition to indicate that as relief he sought to have his conviction vacated. The respondent subsequently made an oral motion for a directed verdict after the conclusion of the petitioner's case-in-chief, which was granted by the court because the petitioner had failed to make out a prima facie case. The court thereafter rendered a judgment of dismissal.
The petitioner on December 21, 2007 filed a motion for re-argument and requested that this court reconsider its dismissal of the habeas corpus petition. On January 11, 2008, the court granted the petitioner's motion for re-argument. The court additionally vacated both the judgment of dismissal and the granting of the respondent's oral motion for a directed verdict, thereby denying the directed verdict. The matter was set down for another day of trial on January 31, 2008, but did not proceed until February 8, 2008.
Witnesses over the two days of trial in December 2007, and February 2008, included the petitioner, the petitioner's trial defense counsel, Christian Bujdud and the petitioner's expert witness, Jeffrey Beck. The court finds the testimony of Bujdud and Beck to be generally credible and the testimony of the petitioner to be generally not credible. The petitioner filed a pretrial brief and the court allowed the respondent to file a posttrial brief, which was filed with the court on April 11, 2008. The court has reviewed and considered the testimony, the exhibits, the parties' closing arguments and their memorandum of law. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
While this court finds that Beck testified credibly, as noted in this opinion, the court does not concur with many of Beck's conclusions as to Bujdud's performance.
FINDINGS OF FACT
The petitioner was the defendant in six criminal cases pending in the Superior Court, judicial district of Stamford, Docket Numbers CR99-134322, CR99-089993, CR99-089994, CR00-131532, CR00-132802 and CR00-133017 in which he was charged with, inter alia, six counts of robbery in the first degree in violation of Gen. Stat. § 53a-134; two counts of larceny in the third degree in violation of Gen. Stat. § 53a-124; two counts of burglary in the third degree in violation of Gen. Stat. § 53a-103; and three counts of larceny in the sixth degree in violation of Gen. Stat. § 53a-125b.
Thereafter the petitioner was given two offers to resolve his matters, one from the state and one from the court, Nigro, J. On October 12, 2000, the petitioner accepted the state's offer and pleaded guilty to two counts of robbery in the first degree. The petitioner also entered into an agreed recommendation with the state whereby it would recommend that the petitioner be sentenced to a total effective sentence of fifteen years. The petitioner reserved the right to argue for a lesser sentence. The petitioner's pleas of guilty were canvassed by the court and the matters were continued for the preparation of a presentence investigation and report. On December 14, 2000, the court committed the petitioner to the custody of the commissioner of correction for a period of fifteen years.
At the habeas trial, the petitioner testified that after his arrest, he was represented by Attorney John Regan and while represented by Regan, he received an offer from the state of fifteen years to serve. In late August or September 2000, the petitioner hired Attorney Christian Bujdud to represent him. Bujdud met with the petitioner on October 12, 2000, and presented him with alternative offers from the state and the court. Bujdud informed the petitioner that the state had offered fifteen years with a right to argue for less and the court had offered twelve years with five years of special parole. The petitioner further testified Bujdud told him that he "had a better chance taking the fifteen year sentence, that [Budjud] would get me less than twelve with that." According to the petitioner, based on this advice he accepted the offer of fifteen years.
Bujdud had represented the petitioner on at least two prior occasions when the petitioner had been granted youthful offender status and a suspension of prosecution.
The habeas trial transcript also shows the following testimony by the petitioner:
"[MR. MASTRIONARDI]: Okay. And did [Budjud] make-did he tell you what he thought at the time? Did he make a recommendation what he thought you should do?
"[THE PETITIONER]: Yes. Take the cap of fifteen, right to argue for less." Habeas Trial Transcript, December 20, 2007, p. 15.
The petitioner recalled that during the plea canvass, the court advised him that he would receive fifteen years unless there was something in the presentence investigation which would warrant the imposition of a lesser sentence. The petitioner also recalled that Bujdud then spoke to the petitioner off the record for approximately one minute. The petitioner testified he told Bujdud that he did not think fifteen years was his best option, but Bujdud told him not to worry and that he had a better chance going with the fifteen years. As a result, the petitioner "took [Budjud's] advice." The petitioner further testified that Bujdud never spoke to him about the contents of the probation interview, nor did Bujdud attend the probation interview, to the best of the petitioner's knowledge, Bujdud never forwarded any favorable information or letters to the probation officer and Bujdud never reviewed the presentence investigation report with him. Finally the petitioner testified that but for Bujdud's recommendation, he would not have accepted the offer of fifteen years to serve and that if Bujdud had recommended the twelve-year offer, he would have accepted that. On cross examination, the petitioner admitted that Bujdud did not force him to take the fifteen years and that the decision to accept that offer was his own.
At the habeas trial Attorney Jeffrey Beck testified as an expert witness in criminal defense. Beck was admitted to the bar of the state of Connecticut and has represented approximately one thousand criminal defendants. Beck testified that he had reviewed the plea and sentencing transcripts and the presentence investigation report and had spoken to the petitioner and Bujdud. Beck further testified that a competent criminal defense attorney is required to investigate the facts and circumstances of the crime, investigate the background of his client and evaluate the strengths of the state's case. At a pretrial, an attorney should be prepared to present any mitigating evidence with the goal of obtaining the most favorable possible offer. An attorney has a further duty to convey any offer to his client and to make a recommendation as to whether to accept any offer.
In the petitioner's case, Beck believes that the court's comments during the plea canvass implied that the fifteen-year sentence was a foregone conclusion. Beck believes that upon hearing these comments, Bujdud should have asked for a recess or a continuance to "conduct a dry run of the presentence interview" so that Bujdud could determine whether there was anything of mitigation in the petitioner's background. In Beck's opinion, there was nothing in the petitioner's background that "would have caused the judge to come off the fifteen year count." In particular Beck cited the petitioner's seventeen pending cases, his sporadic work history, his history of substance abuse and the absence of any history of community service or charitable work. Beck believes that a reasonably competent lawyer would not have recommended the fifteen-year offer.
On cross examination, Beck conceded that he did not know if October 12, 2000 was a final accept or reject date for the alternative offers, that he did not speak to the state's attorney who prosecuted petitioner's cases, that he has only handled "a dozen or so" cases in Stamford. Finally, Beck conceded that he has had only one case in front of Judge Nigro and, in that case, his client pleaded guilty and was sentenced to an agreed recommendation.
At the habeas trial Attorney Christian Bujdud testified that he was admitted to the practice of law in the state of Connecticut in June 1992. Since that time, he has maintained a private practice of law with concentrations in criminal defense and real estate. His practice consists of 70% criminal defense and he has handled several thousand Part B cases and thirty-fifty Part A cases including two trials. Bujdud primarily practices in Stamford, Norwalk, Bridgeport and the United States District Courts in Bridgeport and New Haven. Eighty percent of his work is done in Stamford. Bujdud has appeared in front of Judge Nigro on ten to seventeen occasions for criminal sentencings including cases of agreed recommendations and cases with a cap and a right to argue for less. Additionally Bujdud has observed Judge Nigro impose sentence in other criminal cases. Prior to the disposition of the petitioner's case, Bujdud was not aware of any cases in which Judge Nigro had imposed the maximum sentence authorized under a plea agreement with a cap.
Bujdud first met the petitioner approximately five years prior to the disposition in the underlying case when Bujdud represented petitioner in five — ten cases pending in Stamford and Norwalk. In those matters, Bujdud was successful in convincing the court to grant a suspension of prosecution in one set of cases and youthful offender in the other cases. In the criminal cases which are the subject of this habeas corpus petition, the petitioner was initially represented by a public defender and had received an offer of fifteen years to serve. The petitioner's family then hired Bujdud to file an in lieu of appearance.
At some point thereafter, Bujdud met with the state's attorney and Judge Nigro in a judicial pretrial. Bujdud informed the court of his prior acquaintance with the petitioner, the petitioner's drug dependency, his minimal prior criminal history, the fact that this was his first incarceration, his family history and problems in his upbringing and the fact that the crimes were drug-related. At this pretrial, the state tendered an offer of fifteen years with the right to argue for less. Alternatively Judge Nigro offered a sentence of twelve years with five years of special parole.
Bujdud met with the petitioner and went over the consequences of each option. The petitioner was insistent that he would not accept the offer of twelve years to serve. Bujdud testified that he made no recommendation to the petitioner as to which offer to accept but advised the petitioner that even with the right to argue for less, he could end up with a fifteen-year sentence. Bujdud never advised the petitioner to reject the twelve-year offer. Bujdud further testified that the fact the state's offer was fifteen years with the right to argue for less and that the court's offer was a firm twelve years figured into the petitioner's decision and the petitioner decided to accept the state's offer.
Bujdud also testified that because the offers were so close (fifteen years vs. twelve years), it was a harder decision for petitioner to make than if the offers had, as an example, been ten years apart.
Bujdud recalled that during the plea canvass, Judge Nigro advised the petitioner that he would impose the cap unless there was evidence presented at the sentencing to convince the court otherwise. Bujdud and the petitioner then discussed these comments of the court off the record. Bujdud advised the petitioner that they could pass the case and discuss whether the petitioner still wanted the cap sentence or the agreed sentence. In response, the petitioner told Bujdud that he "didn't want to take the twelve years," that he "wasn't going to accept twelve years" and that "[he's] not doing twelve years, you argue for less." Bujdud then informed Judge Nigro that he had explained the court's comments to the petitioner and the petitioner still wanted to accept the offer of a fifteen-year cap.
The matter was then continued to December 14, 2000 for the preparation of a presentence investigation and report. Bujdud explained to the petitioner the purpose of the presentence investigation, but did not attend the probation officer's meeting with the petitioner. Bujdud does not recall sending the probation officer any information about the petitioner or meeting with the petitioner's family to obtain mitigating evidence. Bujdud met with the petitioner on the day of sentencing and went over the contents of the presentence investigation.
Bujdud further testified that if the petitioner had expressed any uncertainty as to what he had wanted to do, Bujdud would have asked for a recess. Budjud conceded that he had never heard Judge Nigro inform a defendant that in the absence of mitigation, he would impose the cap. Bujdud further testified that he had nothing new to present to the judge at sentencing that had not been revealed at the pretrial but asked the court to impose a sentence of fifteen years suspended after seven years to be followed by a period of probation.
Despite Bujdud's testimony to the contrary, he did in fact argue many additional facts to the court at the time of sentencing. Specifically Bujdud argued that he had known petitioner for five years, that petitioner was twenty-one years of age, that he had no prior criminal convictions, that he had successfully completed a period of probation as a youthful offender including compliance with all special conditions, that he had successfully completed a substance abuse program, that his relapse into the use of drugs caused him to commit the present offenses, that he has been diagnosed with a "depressive disorder," that he had no history of violence, that no one was injured in the present offenses, that during his pretrial incarceration, he had completed his GED and attended substance abuse programs, that this was his first incarceration, that when questioned by the police, he confessed to the commission of his crimes, that he understood the wrongfulness of his behavior and that he had shown he would be a good candidate for probation.
After hearing the arguments of counsel and the petitioner's allocution, the court committed the petitioner to the custody of the commissioner of correction for fifteen years to serve. Bujdud testified that he was surprised by this sentence in that he had never seen Judge Nigro fail to impose a sentence less than a cap.
Additional facts will be discussed as necessary.
DISCUSSION
The petitioner raises a single claim, namely that he received ineffective assistance of counsel. More specifically the petitioner alleges that Bujdud failed to properly advise him as to whether to enter guilty pleas in that Bujdud recommended the offer of fifteen years with the right to argue for less over an offer of twelve years to serve. The petitioner asserts that but for Bujdud's deficient performance he would have received a sentence of no more than twelve years instead of the fifteen he presently is serving.
"In Strickland v. Washington, 466 U.S. 668, [687] 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show 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 adversarial process that renders the result unreliable . . . In the usual ineffective assistance of counsel case, a habeas petitioner must show that his counsel was ineffective and such ineffectiveness prejudiced the petitioner in that but for the ineffective assistance there would have been no conviction . . . That standard has been modified for ineffectiveness claims that result from guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) . . ." (Citations omitted.) Peterson v. Commissioner of Correction, 106 Conn.App. 778, 779-80 cert. denied, 287 Conn. 907 (2008).
"In Hill v. Lockhart, [ supra, 474 U.S. 57-58], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard. As in Strickland, the prejudice standard for plea negotiations is intended to determine whether, but for counsel's constitutionally deficient performance, the outcome of the plea process would have been different. The court went on to require that in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . The Hill court, in discussing the `prejudice' inquiry in guilty plea cases, indicated that the assessment of whether an `ineffective' counsel may have `deprived' a petitioner `will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.' Hill v. Lockhart, supra, 59. It went onto state that `[a]s we explained in Strickland . . . these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the `idiosyncrasies of the particular decisionmaker.'" Id., 59-60. Daniel v. Commissioner of Correction, 57 Conn.App. 651, 664-65, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).
A.
The petitioner makes several arguments that require this court to first address whether the foregoing standard is the proper legal standard applicable to the petitioner's claim of ineffective assistance of counsel. The petitioner argues that the modified prejudice prong per Strickland/Hill is inapplicable in this case because the petitioner here is not seeking the same relief as the petitioner in Hill v. Lockhart. The petitioner argues that in Hill v. Lockhart, the petitioner sought to have his conviction vacated, whereas the petitioner here seeks to resuscitate an offer that was not accepted and does not want the habeas court to vacate any convictions. The petitioner goes as far as arguing that Hill ". . . is wholly inapplicable to this case. Hill involved a situation in which a habeas petitioner sought to vacate his conviction after a guilty plea upon a claim of ineffective assistance of counsel." Motion for Re-argument, p. 5. The court disagrees with these arguments and the petitioner's characterization of Hill.
In Hill, "[m]ore than two years [after his conviction] petitioner filed a federal habeas corpus petition alleging, inter alia, that his guilty plea was involuntary by reason of ineffective assistance of counsel because his attorney had misinformed him as to his parole eligibility date. According to petitioner, his attorney had told him that if he pleaded guilty he would become eligible for parole after serving one-third of his prison sentence. In fact, because petitioner previously had been convicted of a felony in Florida, he was classified under Arkansas law as a `second offender' and was required to serve one-half of his sentence before becoming eligible for parole . . . Petitioner asked the United States District Court for the Eastern District of Arkansas to reduce his sentence to a term of years that would result in his becoming eligible for parole in conformance with his original expectations. The District Court denied habeas relief without a hearing." (Emphasis added.) Hill v. Lockhart, supra, 474 U.S. 54-55. Thus, contrary to the petitioner's argument, the petitioner in Hill, like the petitioner here, sought relief in the form of a sentence reduction.
The petitioner additionally argues that Orcutt v. Commissioner of Corrections, 248 Conn. 724 (2007), Sanders v. Commissioner of Corrections, 83 Conn.App. 543 (2004) and Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) support his claim that the modified Strickland/Hill prejudice prong does not apply and that "a higher prison sentence caused by ineffective assistance of counsel is sufficient to constitute `prejudice' . . ." Motion for Re-argument, p. 7. Orcutt, Sanders and Boria are, however, all distinguishable from the present case.
Orcutt is a decision from the Connecticut Supreme Court addressing a claim premised on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and dealt with a petitioner who sought to have his sentence comport with the plea agreement. The Supreme Court noted that while the petitioner in Orcutt had presented a claim of ineffective assistance of counsel, "[t]he habeas court did not address this claim . . . in light of its determination that the petitioner was entitled to prevail on his Santobello claim." Orcutt v. Commissioner of Correction, supra, 284 Conn. 735 n. 20. Thus Orcutt is not relevant to this petitioner's claim that the Strickland/Hill prejudice standard is inapplicable.
In Sanders the petitioner prevailed in his habeas corpus petition by challenging his attorney's failure to meaningfully explain the state's second plea offer. The Appellate Court noted that "[t]o satisfy Strickland['s prejudice prong], under the circumstances of this case [i.e., Sanders], the petitioner had to show that he would have accepted the offer and that the court would have rendered judgment in accordance with that offer." (Citation omitted.) Sanders v. Commissioner of Correction, supra, 83 Conn.App. 552. The Appellate Court affirmed the judgment granting a writ of habeas corpus and the court's ". . . order that the petitioner's sentence be reduced to reflect the [second] plea offer pending his entering of guilty pleas in accordance with the terms of the offer." Id., at 546-47.
In Boria, the Court of Appeals reversed the trial court's decision denying the petition for a writ of habeas corpus. The evidence before the District Court showed that the petitioner's attorney had failed to discuss the advisability of accepting or rejecting the government's plea offer of one to three years. Thereafter, the petitioner was convicted after a trial and he received a sentence of twenty years to life. On these facts the Court of Appeals found deficient performance. It then went on to consider whether the petitioner had also proved the prejudice prong. The Court concluded that "[t]he second Strickland question need not long detain us. Had [trial counsel] . . . advised his . . . clients of his professional judgment that it was almost impossible for a `buy and bust' defendant to obtain an acquittal in Orange County . . . there would have been more than a `reasonable probability' that the father would have organized the family to persuade the petitioner not to pursue the suicidal course he seemed bent upon following." Boria v. Keane, supra, 99 F.3d 497.
The petitioner's reliance on these cases is, however, misplaced. Both Boria and Sanders involved petitioners who entered pleas of not guilty, proceeded to trial, were convicted by juries and then sentenced. Accordingly, the reviewing court appropriately employed the Strickland prejudice test in assessing the claim of ineffective assistance of counsel.
The Connecticut Supreme Court recently reaffirmed that Strickland/Hill is the applicable standard in all cases in which a petitioner has pleaded guilty. In Washington v. Commissioner of Correction, 287 Conn. 792 (2008), the petitioner pleaded guilty based on his attorney's representation that he would receive pretrial jail credit toward his sentence. Counsel's advice was correct at the time it was given and after pleading guilty, the petitioner received the promised pretrial credit. Thereafter, in a line of cases, the Connecticut Supreme Court held that inmates sentenced on multiple files on different days are entitled to receive pretrial credit only once regardless of whether, prior to sentencing, they were confined on a single file or multiple files. These decisions of the Supreme Court caused the respondent to review the petitioner's file and to withdraw the previously awarded pretrial credit. The petitioner then brought a habeas action alleging, inter alia, that counsel's performance was deficient in failing to anticipate the Supreme Court's decisions and moreover, but for counsel's actions, the results of his proceeding would have been different.
See, Hunter v. Commissioner of Correction, 271 Conn. 856, 860 A.2d 700 (2004); Cox v. Commissioner of Correction, 271 Conn. 860, 860 A.2d 708 (2004); Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004).
In rejecting the petitioner's claim, the Court in Washington stated: "[w]e first note that the petitioner misstates the prejudice prong of Strickland that applies to cases in which a defendant has opted to plead guilty. He claims that there is a reasonable probability that the result of the trial court proceedings would have been different. In the context of a guilty plea, however, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel's alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial . . . Moreover, we conclude that the petitioner was not prejudiced because there is no evidence in the record to suggest that the petitioner ever was promised that his presentence confinement would be included in the . . . sentence to which he agreed. Because we conclude that the petitioner has failed to demonstrate that he was prejudiced by any allegedly ineffective assistance of counsel, we conclude that he has failed to satisfy Strickland, and we need not address his claims under the performance prong." (Emphasis added.) Washington v. Commissioner of Correction, supra, 287 Conn. 835-36.
The petitioner here, like the petitioner in Washington and unlike the petitioners in Sanders and Boria, waived a trial and pleaded guilty. Accordingly, Strickland/Hill is the standard the court must apply to this habeas corpus petition. Based on this discussion and conclusion that Hill v. Lockhart is the applicable standard for the prejudice prong, especially when viewed together with the petitioner's testimony that he would not have gone to trial but for Bujdud's alleged errors, the court now concludes that it mistakenly granted the petitioner's December 21, 2007 motion for re-argument. Nevertheless, the court here addresses the claims on their merits.
Even if it could be said that the standard for prejudice set out in Strickland/Hill is inapplicable to the petitioner's claim, the petitioner has failed to prove that he suffered any prejudice. At the habeas trial the petitioner testified that if Bujdud had recommended the twelve-year sentence he would have accepted that offer. Bujdud, however, testified that the petitioner repeatedly told him he would not accept the twelve years. The court finds the petitioner's testimony to be not credible and Bujdud's testimony to be highly credible. Accordingly there is no credible evidence that the petitioner would have accepted the twelve-year offer even if one were to assume Bujdud had recommended that plea offer.
B.
As set out in his petition for a writ of habeas corpus, the petitioner's sole claim is that Bujdud provided ineffective assistance of counsel by "advis[ing] the petitioner to reject the court's firm twelve year offer and, instead, pursue the right to argue for a sentence less than the fifteen year cap." Petition for a Writ of Habeas Corpus, ¶ 5c.
The credible evidence in this matter shows that the petitioner was initially represented by public defender John Regan. The state offered the petitioner a fifteen-year sentence to resolve the criminal matters during Regan's representation. The petitioner did not accept this initial offer of fifteen years to serve. At some point after he replaced Regan, Bujdud met with the state's attorney and Judge Nigro in a judicial pretrial. At this pretrial, the state tendered an offer of fifteen years with the right to argue for less. Alternatively Judge Nigro offered a sentence of twelve years with five years of special parole.
Bujdud met with the petitioner and went over the consequences of each option. Bujdud made no recommendation to the petitioner as to which offer to accept but advised the petitioner that even with the right to argue for less, he could end up with a fifteen-year sentence. During the plea canvass, Judge Nigro advised the petitioner that he would impose the cap unless there was evidence presented at the sentencing to convince the court otherwise. Bujdud and the petitioner then discussed these comments of the court off the record. Bujdud advised the petitioner that they could pass the case and discuss whether the petitioner still wanted the cap sentence or the agreed sentence. The petitioner, however, told Bujdud that he "didn't want to take the twelve years," that he "wasn't going to accept twelve years" and that "[he's] not doing twelve years, you argue for less." Bujdud then informed Judge Nigro that he had explained the court's comments to the petitioner and the petitioner still wanted to accept the offer of a fifteen-year cap.
The court finds petitioner's testimony at the habeas trial, that Bujdud recommended the fifteen-year sentence with the right to argue for less, to be not credible. The court instead credits Bujdud's testimony that he made no specific recommendation. Accordingly the petitioner has failed to prove that Budjud rendered deficient performance by recommending that the petitioner accept the state's offer of fifteen years to serve.
Beck testified that Budjud rendered deficient performance by recommending that the petitioner accept the state's offer of a fifteen-year sentence. In light of the court's finding that Budjud did not make such a recommendation, Beck's opinion as to Budjud's performance is not supported by the credible evidence adduced at the habeas trial
In closing argument, the petitioner additionally argued that Bujdud provided ineffective assistance by failing to advise the petitioner to accept the court's offer of twelve years to serve with five years of special parole. The petitioner argues that Sanders, Boria and Edwards v. Commissioner of Correction, 87 Conn.App. 517, 865 A.2d 1231 (2005) create a duty on the part of defense counsel to not only advise whether or not a defendant should accept an offer and plead guilty but also, in the case of alternative offers, to make a recommendation as to which alternative offer to accept. The respondent claims that the petitioner reads too much into Sanders and Edwards and that Purdy v. United States, 208 F.3d 41 (2d Cir. 2000) clarifies that Boria did not establish such a rule. The court agrees with the respondent.
As noted above, in Sanders, the petitioner prevailed in his habeas corpus petition by challenging his attorney's failure to meaningfully explain the state's second plea offer. At the habeas trial, the petitioner testified that his attorney had never conveyed the state's offer to him. The habeas court credited the petitioner's testimony and found ineffective assistance of counsel. The Appellate Court affirmed holding that "[t]he petitioner's testimony was sufficient to establish that he was never informed about or shown the statements of the witnesses against him and that he was not told of the likely outcome if the case proceeded to trial. Although the petitioner never explicitly stated that the plea offer was not fully explained to him, and, in fact, he claimed that the offer was never made to him at all, the lapses in counsel's performance about which the petitioner did testify provided an adequate basis for the court's determination that the plea was not meaningfully explained to him." Sanders v. Commissioner of Correction, supra, 83 Conn.App. 549. The holding in Sanders falls far short of establishing a rule that competent defense counsel is required to make a recommendation between alternative plea offers. Thus Sanders lends no support to the petitioner's claim.
In Edwards, the petitioner alleged that his trial defense counsel had ". . . fail[ed] to make a recommendation whether to enter a plea." Edwards v. Commissioner of Correction, supra, 87 Conn.App. 520. The petitioner in Edwards relied on Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997), in support of his " . . . [argument] that trial counsel did not tell him expressly whether he should accept the offer of thirty-seven years, and, that under Boria, this failure renders counsel's assistance constitutionally ineffective." Edwards v. Commissioner of Correction, supra, 87 Conn.App. 523.
The Appellate Court rejected this argument stating that "[i]n Boria, the United States Court of Appeals for the Second Circuit held that `an attorney had rendered constitutionally deficient assistance to the defendant by failing to discuss with him the advisability of accepting or rejecting a proffered plea bargain that would have resulted in a prison term of one-to-three years, where the attorney felt it would be `suicidal to go to trial and the defendant, after going to trial, received a sentence of 20 years to life.' . . . [In Purdy] [t]he Second Circuit . . . explained that Boria has been misread by some: `Per se rules like the one [the petitioner] advocates — and mistakenly reads into Boria — are not well calibrated to gauge the ineffective assistance of counsel . . . [W]e think it unwise to read Boria to have established a per se rule that defense counsel must always expressly advise the defendant whether to take a plea offer.' . . . [I]t is sufficient that counsel informed his client `fully of the strength of the government's case against him, together with the nature of the government's plea offer, without specifically advising [the client] to take the plea' . . ."
"On the one hand, defense counsel must give the client the benefit of counsel's professional advice on this crucial decision of whether to plead guilty . . . As part of this advice, counsel must communicate to the defendant the terms of the plea offer . . . and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed . . . On the other hand, the ultimate decision whether to plead guilty must be made by the defendant . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer . . . Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [r]epresentation is an art . . . and [t]here are countless ways to provide effective assistance in any given case . . . Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision. Purdy v. United States, supra, 208 F.3d 44-45." (Citations omitted; internal quotation marks omitted.) Edwards v. Commissioner of Correction, supra, 87 Conn.App. 523-25.
In assessing the performance of Edwards' counsel, the Appellate Court went on to adopt the approach of the Second Circuit Court of Appeals in Purdy and concluded that ". . . counsel [in Edwards] did not fail to offer advice to the petitioner or send him to trial despite thinking that trial would be `suicidal.' To the contrary, the record demonstrates that counsel informed the petitioner of his options along with counsel's assessment of those options, and, quite clearly, the petitioner simply was not going to accept the offer of thirty-seven years." Id., at 525. Thus Edwards also lends no support to the petitioner's claim that it is ineffective assistance for trial defense counsel to fail to make a recommendation as to which plea offer to take.
Based on all the foregoing, the court concludes that Bujdud employed reasonable trial strategy by thoroughly discussing the consequences of the two offers with the petitioner but not recommending one offer over the other. In the present case, the difference between the two offered sentences was almost negligible. On the other hand, accepting the fifteen-year sentence with the right to argue for less had the potential to hit a `home run' by garnering a sentence substantially less than twelve-year minimum required by the agreed recommendation.
In the present case, acceptance of the court's offer exposed the petitioner to a minimum sentence of twelve years to serve and a maximum sentence of seventeen years to serve while acceptance of the state's offer exposed the petitioner to a maximum sentence of fifteen years.
In the recently decided case of Ebron v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 06-4001098 (January 14, 2008, Schuman, J.) ( 2008 Ct.Sup. 746), the habeas court found counsel's performance deficient when he affirmatively recommended to his client that he reject a six-year offer and instead enter an `open plea' to a maximum possible sentence of eighteen years. Ebron is quite distinct from the present case. First, the twelve-year gap in Ebron is much greater than the gap between the two offers at issue here. Second, Bujdud never affirmatively recommended to petitioner that he accept or reject any specific offer. Instead Bujdud comprehensively discussed the offers and their respective consequences and left the ultimate decision to petitioner. [The petition for certification in Ebron was granted, an appeal has been taken and assigned docket #A.C. 29583.]
Indeed, at the sentencing, Bujdud argued that he had known the petitioner for five years, that the petitioner was twenty-one years of age, that he had no prior criminal convictions, that he had successfully completed a period of probation as a youthful offender including compliance with all special conditions, that he had successfully completed a substance abuse program, that his relapse into the use of drugs caused him to commit the present offenses, that he has been diagnosed with a "depressive disorder," that he had no history of violence, that no one was injured in the present offenses, that he completed his GED and attended substance abuse programs during his pre-trial incarceration, that this was his first incarceration, that he confessed to the commission of his crimes, that he understood the wrongfulness of his behavior and that he had shown he would be a good candidate for probation. Bujdud requested that Judge Nigro impose a sentence of fifteen years, suspended after the service of seven years, followed by five years probation.
Bujdud's arguments at sentencing were not enough to convince Judge Nigro to impose less than fifteen years to serve. In fact, Judge Nigro commented that the petitioner was ". . . getting a break with fifteen years . . . with regard to the cases that he has pending. If the State elected to try all of them, he would be facing well over two hundred years incarceration. I don't see anything, I have heard nothing that would authorize me to do anything but impose the sentence, under which he had entered his plea." Criminal Trial Transcript, December 14, 2000, p. 18. These comments by Judge Nigro failed to prevent Bujdud from making further arguments to Judge Nigro that he impose a sentence of fifteen years, suspended after the service of seven years. These additional efforts were, however, also unsuccessful.
Bujdud's representation and the advice he gave to the petitioner balanced his duty to give the petitioner advice on the decision whether to plead guilty with leaving to the petitioner the ultimate decision of which offer to accept. Bujdud's performance falls squarely within the ". . . wide range of reasonableness because representation is an art . . . and there are countless ways to provide effective assistance in any given case." (Emphasis added.) Edwards v. Commissioner of Corrections, supra, 87 Conn.App. 524, citing and quoting Purdy v. United States, supra, 208 F.3d 44-45. The court finds that Bujdud acted within the range of reasonably competent counsel by advising the petitioner as he did. The petitioner, therefore, has failed to meet his burden of proof under Strickland/Hill because he has shown neither deficient performance nor, as discussed in the first part of this opinion, the resultant prejudice.
CONCLUSION
The petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare and submit a judgment file to the Clerk's Office within thirty days of the date of this decision.