Opinion
No. CV05-4000529 S
June 5, 2008
MEMORANDUM OF DECISION
The petitioner has brought this amended petition for a writ of habeas corpus alleging that he was deprived the effective assistance of trial counsel, in violation of the United States and Connecticut constitutions. In an amended petition filed January 8, 2008, the petitioner alleged that trial counsel failed to adequately advise the petitioner concerning the plea agreement offered at trial and did not adequately explain the range of sentences that the petitioner faced if convicted after trial. The petitioner seeks, as relief, an order from the court to vacate his convictions and present sentence and return the case to the trial court docket for further proceedings. Respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.
At trial and in the petitioner's post-trial brief, he injects additional ineffective assistance claims regarding inadequate investigation and deficiencies in performance at the criminal trial. These claims were not raised in the petition and, therefore, this court declines to consider them. See Cole v. Commissioner of Correction, 102 Conn.App. 595, 599-600, 925 A.2d 1231 (2007) (reversing grant of habeas relief because claim not included in petition); see also Ankerman v. Commissioner of Correction, 104 Conn.App. 649, 653 n. 3, 935 A.2d 208 (2007); Oliphant v. Commissioner of Correction, 80 Conn.App. 613, 618 (2003).
The matter came before the court on January 31, 2008, for a trial on the merits. Witnesses included the petitioner, attorney Leon Kaatz, his expert witness, and attorney Megan McLoughlin-Mikos, his trial counsel. As additional evidence, the petitioner offered 25 exhibits and the respondent no exhibits. Based on the court's review of the testimony and documentary evidence, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACTS
The petitioner was the defendant in a case entitled State v. Tyson with docket number CR01-0497973 in the Judicial District of New Haven, G.A. 23. The case was transferred to G.A. 2 in Bridgeport. The petitioner was charged and convicted on March 20, 2002, after a jury trial, of assault on a police officer in violation of General Statutes § 53a-167(c)(1) and two counts of interfering with a police officer in violation of General Statutes § 53a-167a(a).
On June 2, 2002 the trial court, Hauser, L., J., sitting as a fact finder, heard evidence on the Part B information, which charged the petitioner as a persistent serious felony offender pursuant to General Statutes § 53a-40(c). The court reserved decision until sentencing. On July 17, 2002, the court found the petitioner to be a persistent serious felony offender and sentenced him to a term of thirteen years imprisonment and five years special parole. On the two counts of interfering with a police officer, he was sentenced to one year imprisonment on each count to run concurrently with the assault count. The petitioner filed an appeal of his conviction. The conviction was affirmed in part and reversed in part. State v. Tyson, 86 Conn.App. 607, 862 A.2d 363 (2004). The petitioner's total effective sentence was not affected by the Appellate Court's decision.
The court reversed the conviction on one of the counts of interfering with an officer, as that was a lesser included offense of assault on a public safety officer and the conviction violated his right against double jeopardy. State v. Tyson, supra, 86 Conn.App. 616.
The relevant facts are taken from the Appellate Court's decision: "On February 8, 2001, the defendant, while resisting arrest, struck a New Haven police officer in the face." State v. Tyson, supra, 86 Conn.App. 609. The petitioner testified that he had broken the police officer's nose, but that it was unintentional.
Attorney McLoughlin-Mikos represented the petitioner in three cases arising in New Haven. In the first case, the state alleged that the petitioner assaulted and interfered with a police officer. In the second case, the state alleged that the petitioner was a passenger in a vehicle where narcotics were found by the police. In the third case, the state alleged that the petitioner interfered with a New Haven marshal in the lock-up of the New Haven courthouse. In connection with the incident involving the marshal, attorney McLoughlin-Mikos requested that the tape recording of the incident be preserved.
The petitioner testified that his counsel obsessed about the latter case while ignoring the two remaining cases. In addition, the petitioner testified that his counsel failed to communicate with him. However, attorney McLoughlin-Mikos did communicate with her client in person and through letters.
The petitioner was aware of the state's offers to settle his cases and he rejected the offers. He was offered a sentence of two years and a day with special parole. The petitioner testified that he did not want to hear any offers unless he was allowed to go home. The evidence shows that attorney McLoughlin-Mikos sought to negotiate his cases, but the petitioner was not going to accept any pleas. The petitioner was aware that he was being presented as a persistent felony offender.
The petitioner sought to have his attorney removed from the case as early as October 3, 2001. There were several instances where the petitioner was not brought into the courtroom on his appearance dates. The petitioner, on his own, filed a motion for a speedy trial on the case involving the incident with the marshal. As a consequence, the petitioner was brought to court and he was told that the state would proceed with the assault on a police officer case first. The petitioner testified that he was unaware that the state could pick and choose what case to try first. The petitioner, simply, did not listen to his attorney.
Attorney Kaatz testified that that it is important for defense counsel to communicate all offers to their clients and that the defendant make the final decision on whether to accept the offers. Here, attorney McLoughlin-Mikos communicated all offers to her client and the petitioner decided not to accept the proposed disposition of the cases.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts . . .
Although [the] decision [to plead guilty or proceed to trial] 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. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . .
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-55, 895 A.2d 242 (2006).
"It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
Here, the petitioner claims that trial counsel was ineffective because she failed to explain to the petitioner his options short of a jury trial. Attorney McLoughlin-Mikos testified that she conveyed all plea offers to the petitioner, but that the petitioner did not want to entertain any offers that did not involve him going home. The petitioner, by his own testimony, recognized that he did not have a real defense to the assault on a police officer case. He testified that he did not want to go to trial on the case. Nevertheless, he did file a motion for a speedy trial, against the advice of counsel, not realizing the state could proceed on any one of his three cases first. See Practice Book § 43-40. Because he did not accept an offer to plead guilty, the trial proceeded to conclusion. The court fully credits the testimony of attorney McLoughlin-Mikos and finds that the petitioner's material testimony at the habeas corpus trial is totally lacking in credibility.
There is no need in this case to conduct an analysis on the first prong of the Strickland test. The petitioner's stance was: "if [counsel] ain't talking about me going home, I don't have a word to say to [counsel.]" (Exh. 25, p. 4.) Thus, the petitioner has not demonstrated that, but for counsel's alleged errors, "he would have accepted the offer and that the court would have rendered judgment in accordance with that offer." Sanders v. Commissioner of Correction, 83 Conn.App. 543, 552, 851 A.2d 313 (2004). The petitioner has failed to undermine this court's confidence in the outcome of the underlying proceeding and has, therefore, not proven that he was in any way prejudiced by counsels' performance. His claim of ineffective assistance of counsel premised on the failure to adequately advise petitioner regarding the plea offers has absolutely no merit and must, accordingly, be denied.
Accordingly, the writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.