Opinion
CV134005190S
07-10-2018
Carl E. STEVE v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The petitioner, Carl Steve, seeks habeas corpus relief from a total, effective sentence of twenty years imprisonment, execution suspended after ten years, with five years probation, imposed following his guilty pleas to the crimes of home invasion and attempt to commit assault second degree. The petitioner entered these pleas under the Alford doctrine, North Carolina v. Alford, 400 U.S. 25 (1970).
The petitioner contends that his guilty pleas and sentencing were the product of ineffective assistance by his defense counsel, Attorney Tashun Bowden-Lewis. Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403-25 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria require that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and there exists a reasonable likelihood that the outcome of the proceedings would have been different but for the deficient performance. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by ordinary, professional competence. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57 (1995). Under these cases, the habeas petitioner must show that, but for counsel’s unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty. Id., 151; Carraway v. Commissioner, 137 Conn. 594, 600, fn.6 (2015).
Specifically, the petitioner alleges that Attorney Bowden-Lewis rendered ineffective representation in the following ways:
1. "Trial counsel failed to adequately advise petitioner as to any defenses and/or mitigating circumstances, including the "defense"/mitigating circumstance of intoxication, that petitioner may have had to the charge of attempt to commit assault in the second degree";
2. "Trial counsel failed to adequately investigate witnesses who could support petitioner’s defense of intoxication";
3. "Trial counsel failed to utilize the ‘defense’ of intoxication in an attempt to negotiate a better plea deal for petitioner";
4. "Trial counsel failed to negotiate a plea for petitioner that did not involve petitioner entering a plea of felony";
5. "Trial counsel failed to adequately advise petitioner concerning the implication of waiving his right to trial, and had petitioner been adequately advised, he would have proceeded to trial";
6. "Trial counsel failed to adequately consult with or advise petitioner concerning the evidence that the state would elicit against him if he chose to go to trial as opposed to entering a plea, thus not providing petitioner with adequate information with which to make an informed decision in choosing to enter a plea";
7. "Trial counsel failed to adequately consult with or advise petitioner relative to the witnesses and their testimony that the state would utilize to prove its case against him, thus not providing petitioner with adequate information with which to make an informed decision in choosing to enter a plea";
8. "Trial counsel failed to fully and completely explain the charges and their elements to the petitioner. Had the charges and their elements been fully and completely explained to petitioner, he would have chosen to proceed to trial, rather than enter a plea";
9. "Trial counsel failed to fully and completely explain the minimum and maximum exposure of each of the charges to petitioner. Had the petitioner known the extent of his total exposure, he would have chosen to proceed to trial, rather than enter a plea";
10. "Trial counsel failed to adequately consult with or advise petitioner concerning the status of plea negotiations, any potential plea agreement, or the consequences of entering a plea opposed to going to trial";
11. "Trial counsel failed to adequately communicate to petitioner, in a meaningful manner, all the aspects of the plea agreement"; and
12. "Trial counsel, by the manner and timing with which he consulted petitioner regarding the cases, exercised undue influence on petitioner’s decision as to whether to accept the plea agreement or assert his right to trial, thereby depriving petitioner of his right to trial."
Preplea Defects
As to the second specification, which asserts that Attorney Bowden-Lewis inadequately investigated witnesses to support an intoxication defense, the general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97; State v. Banks, 24 Conn.App. 408, 412. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. Reed v. Reincke, 155 Conn. 591, 597; State v. Baez, 194 Conn. 612, 616 (1984); McKnight v. Commissioner, 35 Conn.App. 762, 764 (1994); cert, denied, 231 Conn. 936 (1994); State v. Niblack, 220 Conn. 270, 277 (1991). This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343 (1971), Reed v. Reincke, supra, 601; Cajigas v. Warden, 179 Conn. 78, 81 (1979).
The relinquishment of the opportunity to pursue nonjurisdictional, preplea errors or defects binds trial and appellate courts even if the parties attempt to agree to preserve these issues, State v. Madera, supra, 101-07. That is, the preclusive effect of a nolo contendere or guilty plea cannot be waived by the parties, unless a statute so provides, Id. In that case, the prosecutor urged our Supreme Court to consider the merits of certain preplea, legal claims that were procedurally lost by virtue of an invalid conditional plea of nolo contendere because the issues fell outside the ambit of the statutory exception allowing such pleas under General Statutes § 54-94a. The Supreme Court, sua sponte, held that such claims were unreviewable despite the litigants’ joint desire for review on the merits, Id., 101-02.
Because an express term of the plea agreement was that the appellant would be permitted to raise these claims on appeal, the Supreme Court vacated the pleas, Id., 107. "[W]e are unable to fulfill the plea agreement," Id., (emphasis added). "Our inability to comply ... constitutes a failure of consideration in the plea bargaining process," Id., (emphasis added).
This court construes the Supreme Court’s holding in State v. Madera, supra, to mean that a habeas court is, likewise, bound to decline an invitation to adjudicate nonjurisdictional, preplea deficiencies waived by a subsequent guilty plea, even if the respondent fails to plead waiver as a special defense.
In order for a lack of preplea preparation to survive the entry of an otherwise proper guilty plea as a viable ground for ineffective assistance, the deficiency must be "so interrelated with the ... subsequent guilty plea that it calls into question the validity of the plea," Minceiwicz v. Commissioner, 102 Conn.App. 109, 114-15 (2015). Typically, that sort of allegation of substandard representation is waived by pleading guilty, Id. In this case, the court determines that the petitioner’s guilty pleas waived these purported lapses by counsel. The court notes that the accusations of inadequate legal advice concerning the petitioner’s decision to plead guilty are included in the first specification of ineffective assistance, and for which the waiver doctrine is inapplicable.
The third and fourth specifications of ineffective assistance aver that Attorney Bowden-Lewis failed to utilize the petitioner’s voluntary intoxication to negotiate a more favorable plea disposition and one which avoided a felony conviction, respectively. These averments suffer from the same waiver result as pertains to the second specification.
Additionally, the court finds that Attorney Bowden-Lewis did, in fact, stress the petitioner’s state of inebriation in an attempt to negotiate the best possible terms to resolve the petitioner’s criminal case in discussions with the prosecutor and judicial authority. Indeed, the ultimate sentence was lower than the state’s best recommendation. Furthermore, no evidence was adduced that credibly supports the petitioner’s conjecture that the prosecutor would have had any interest in offering a lesser recommendation or a disposition involving only misdemeanor charges based on a more strenuous intoxication argument by defense counsel.
Finally, the prejudice prong of the Strickland-Hill analysis seems to require that the petitioner prove that, but for his attorney’s lack of sufficient effort in establishing an intoxication defense, he would have rejected the plea offer and demanded a trial, as opposed merely to holding out hope for a more lenient plea recommendation. In any event, these specifications of poor performance by Attorney Bowden-Lewis were waived by the petitioner’s guilty plea and/or remain unproven for want of proof that a more desirable plea disposition could have been secured.
Plea Advice Generally
In specifications 5, 6, 7, 8, 9, 10 and 11, the petitioner alleges, inter alia, that Attorney Bowden-Lewis insufficiently communicated to him the general legal consequences that flow from a guilty plea; the maxima and minima punishments available; the elements of home invasion and attempted assault second degree; the trial rights ceded by pleading guilty; and the terms of the plea disposition indicated by the judicial authority.
Attorney Bowden-Lewis testified at the habeas trial that before the petitioner decided to accept the indicated disposition, she fully informed him of all the terms of the disposition. She thoroughly reviewed the state’s evidence against the petitioner with him, including discussions about the contents of the police reports, witness statements, and the petitioner’s own statements to the police. She accurately explained the maxima and minima sentences available for the charges. She explained the elements of the crimes of home invasion and attempt to commit assault second degree to him. She detailed the trial rights one gives up by pleading guilty for him. She satisfied herself that the petitioner understood all this information. The court finds Attorney Bowden-Lewis’ testimony very credible as to those recollections.
During the plea canvass, the petitioner did remark to the trial court that he felt that he resided at the victim’s home and that, although he grabbed a knife, he never threw it at anyone. The trial court recognized his position on these issues in conjunction with its discussion on the nature of an Alford plea.
At one point, the petitioner expressed surprise about the probationary term to follow his incarceration, and an off-the-record conversation between the petitioner and Attorney Bowden-Lewis occurred. Soon thereafter, the petitioner, on the record, acknowledged and accepted the probationary portion of the proposed disposition. The court finds that the petitioner’s responses during the plea canvass bolstered Attorney Bowden-Lewis’ version of events.
Consequently, the court concludes that the petitioner has failed to satisfy his burden of establishing, by a preponderance of the evidence, that Attorney Bowden-Lewis representing him deficiently as to these general allegations. There are other, more particularized, allegations of ineffective assistance contained in these specifications, and the court addresses those aspects of these claims later in this memorandum.
Intoxication Defense
In the first specification of ineffective assistance, the petitioner asserts that Attorney Bowden-Lewis inadequately and/or improperly advised him about the defense of intoxication as that defense bears on specific intent crimes. Additional facts are necessary to resolve this assertion.
For several hours on the evening of December 2 to December 3, 2011, the petitioner consumed several alcoholic drinks and smoked marijuana laced with PCP. While intoxicated at a bar, an acquaintance informed the petitioner that his girlfriend was entertaining another man at her apartment. The petitioner immediately went to her residence, which was a ten- to fifteen-minute distance away. The petitioner knocked on the victim’s locked, entry door for which he had no key. When no one responded, the petitioner kicked open the door and grabbed a kitchen knife.
As to what ensued, the witnesses’ statements diverge. The petitioner avowed that he never touched anyone nor did he throw the knife at anyone. The victim and her male companion indicated that the petitioner threw a knife at her which narrowly missed her and stuck in a wall.
The victim summoned the police, and they apprehended the petitioner in a friend’s car a few hours later. The victim denied that the petitioner resided at her apartment. In contrast, the petitioner testified that he had lived there exclusively and continuously for some months preceding the incident. He stated that he kept most of his personal possessions at the apartment, although he acknowledged that he had no key. He also testified that he explained this living arrangement to Attorney Bowden-Lewis.
At the time of his arrest, the petitioner was forty-five years old. From 2000 to 2011, he amassed seven felony convictions. In the underlying case, the prosecutor filed a Part B information charging the petitioner as a persistent, serious felony offender. The transcript of January 23, 2012, discloses that the petitioner was so advised on that date.
The petitioner had been arraigned on December 5, 2011, and faced charges of breach of peace; threatening second degree; interfering with a police officer; burglary first degree; home invasion; attempted assault second degree, and criminal mischief third degree. He failed to post bond, and Attorney Bowden-Lewis was appointed to represent him on December 28, 2011.
On January 23, 2012, the prosecutor conveyed an offer of twenty years imprisonment, execution suspended after service of the mandatory ten years for home invasion. Attorney Bowden-Lewis thoroughly discussed the offer with the petitioner, and he rejected it. Judge Damiani placed his case on the firm jury list. Two days later, however, the petitioner changed his plea to guilty as to the crimes of home invasion and attempted assault second degree. After some discussion on the record, Judge Damiani characterized the pleas as falling within the Alford doctrine.
The petitioner now contends that, but for Attorney Bowden-Lewis’ failure to enlighten him as to the potential defense of intoxication, he would have proceeded to trial. The court concludes otherwise.
The intoxication defense was of minimal value under the petitioner’s circumstances. As related above, no one disputed that the petitioner acted while under the influence of alcohol and drugs. Also, the petitioner admits that he broke into the victim’s apartment and grabbed a knife He had also admitted these facts in a statement to the police. He adamantly denied throwing that knife.
Under General Statutes § 53a-7, voluntary intoxication "shall not be a defense to a criminal charge ..." But, evidence of intoxication may be relevant and admissible evidence if it negates general or specific intent, State v. LaSalle, 95 Conn.App. 263, 267 (2006). However, the petitioner vigorously denied throwing the knife at all. He made no claim that his inebriation resulted in him inadvertently throwing the knife in the victim’s vicinity nor that he deliberately threw the knife but without targeting the victim. Thus, the state of the potential evidence was such that voluntary intoxication was irrelevant because the petitioner completely contested that the combination of alcohol and drugs he ingested disabled him from deciding not to throw the knife nor that a loss of mental awareness caused him to throw the knife for some noncriminal purpose.
A criminal defendant may legitimately request and be entitled to a jury charge on intoxication even if his or her own testimony "flatly contradicts" the evidence justifying such an instruction, but only if the other evidence in the case satisfied the burden of producing "sufficient evidence to warrant presenting [the] claim," State v. Hall-Davis, 177 Conn.App. 211, 225-27 (2017). In other words, there must exist some evidentiary foundation, however slight, that gives rise to the fact-finder’s consideration of the issue of a lack of intent. Id.
It must be kept in mind that the issue before this habeas court is not whether a trial judge would have been required to provide an instruction on voluntary intoxication, but, instead the issue is whether Attorney Bowden-Lewis’ advice to the petitioner as to his guilty pleas was deficient. No legal expert testified that Attorney Bowden-Lewis represented the petitioner ineffectively or that reasonable professional standards demanded that she discuss such a dubious defense with the petitioner.
The petitioner’s own version of events undermined such a defense. The only other evidence bearing on intent was inculpatory, namely that the petitioner rushed to confront the victim when he learned she might be with another man, kicked in the door, and grabbed a knife. These actions confirm the ability to comprehend and implement purposeful conduct.
Also, in order to press the intoxication defense at a trial, Attorney Bowden-Lewis would have to have engaged in the highly risky endeavor of arguing the inconsistent positions that her client didn’t throw a knife, but if he did, he didn’t mean to. These types of defenses butt against each other. Her client is portrayed as either completely in control, never having thrown a knife, or as a liar or so under the influence that his recollection is unworthy of belief.
The court concludes that the petitioner has failed to prove, by a preponderance of the evidence, that Attorney Bowden-Lewis’ plea advice fell below reasonable professional standards. Also, the court disbelieves the petitioner’s testimony that, but for his lack of knowledge about the intoxication defense, he would have elected to proceed to trial.
The petitioner had to weigh the slim chance of acquittal against the probability of conviction of home invasion by a serious felony offender for which the possible, effective sentence was life imprisonment for the forty-five-year-old petitioner under General Statutes § 53a-40(k). The petitioner initially declined the state’s offer, but after the prosecutor refused to drop charges at the victim’s request, the petitioner’s mother and the victim urged him to accept the proposed disposition. Attorney Bowden-Lewis credibly testified that the victim never retracted her accusations as to the petitioner’s conduct, but rather did not want the petitioner to serve time in prison.
The petitioner asked Attorney Bowden-Lewis to have the rejected disposition reinstated. She succeeded in doing so. The court finds that the petitioner’s motivation for pleading guilty was to avoid rolling the dice with an extremely long prison sentence as a very possible outcome, despite his position that he lived at the residence and never threw the knife.
For these reasons, the amended petition for habeas corpus relief is denied.