Opinion
No. CV04-0004351 S
April 3, 2006
MEMORANDUM OF DECISION
The petitioner, Anthony Varchetta, alleges in his petition for a Writ of Habeas Corpus initially filed on February 17, 2004, and amended on May 13, 2005, in Count One that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently, and that he should be allowed to withdraw his plea of guilty. As to Count Two, the petitioner claims actual innocence. Lastly, Count Three alleges improper involvement of the judicial authority in plea bargaining. Since no credible evidence was offered with respect to Count Three, the Court shall deem that claim abandoned. As to Counts One and Two, for the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
This matter came to trial on December 6, 2005. The Court heard testimony from petitioner and his former counsel, Donald J. O'Brien. In addition, petitioner entered into evidence a transcript of the plea dated July 3, 2004 and a transcript of the sentencing dated July 8, 2003. Respondent offered a transcript of the hearing on petitioner's Motion to Correct an Illegal Sentence dated September 13, 2005. 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 Hartford, under docket number CR02-186161, transferred from G.A. 19 Manchester, charged with two counts sexual assault in the first degree, in violation of C.G.S. Section 53a-70(a)(1), and one count of kidnapping in the first degree, in violation of C.G.S. Section 53a-92(a)(2). 2. On July 3, 2003, pursuant to a plea agreement, the petitioner entered a plea of guilty under the Alford doctrine, to two counts of sexual assault in the first degree in docket number CR02-186161. The state entered a nolle prosequi to the remaining kidnapping charge. He also entered an admission to a Violation of Probation for which he owed five years. The Court, Solomon, J., thoroughly canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered a finding of guilty as to the two counts of sexual assault in the first degree and accepted he admission on the Violation of Probation.
In exchange for his plea of guilty to two counts of sexual assault in the first degree, the petitioner would receive an agreed upon sentence of twelve years to serve with thirteen years special parole, the state would enter a nolle prosequi as to the kidnapping charge and agreed not to charge the petitioner as a persistent dangerous sexual assault offender which carries the possibility of a life sentence.
North Carolina v. Alford, 400 U.S. 25 (1970).
On October 9, 1998, he was sentenced on a count of sexual assault in the first degree to a sentence of eight years, suspended after eighteen months, and ten years probation. On October 4, 1999, petitioner violated that probation and was sentenced by the Court, Clifford, J., to six and a half years, suspended after eighteen months, ten years probation.
At the plea canvass, the petitioner at first questioned why he was charged with two sexual assault charges arising out of one incident, but after explanation by the court, he decided to proceed, stating the reason he wanted to accept the plea bargain in the first instance is that he knew the state could charge him with being a persistent dangerous sexual offender. When asked whether his plea was voluntary, petitioner responded that it was "my voluntary decision, sir." Even when he questioned the meaning of special parole at the end of the canvass and the Court explained what it was, petitioner was satisfied to continue with and complete the plea. In response to the Court's inquiry as to whether petitioner had any other questions of the Court or of Attorney O'Brien, petitioner responded. "No, your Honor, I'm satisfied with everything." At no time did he say he was dissatisfied with the process or with his counsel. Ex. 2, pp. 2, 25, 28-29.
3. Petitioner was represented by Attorney Donald O'Brien at the plea hearing. Mr. O'Brien had been prosecutor in New York for six years a prior to practicing criminal defense work in Connecticut, which he has been doing for approximately eleven years. He has tried twenty Part A matters to verdict, some of which have been felony murder and sexual assault cases. Mr. O'Brien was appointed as a Special Public Defender to represent petitioner after it was determined that Special Public Defender John Stawicki had a conflict of interest.
4. Mr. O'Brien obtained the file from Mr. Stawicki and met with the petitioner at the Hartford Correctional Center for approximately one to one and a half hour on June 4, 2003, at which time he discussed with petitioner, among other things, the victim's statement, the police report, the evidence that state could present at trial. Attorney O'Brien's professional opinion was that the petitioner would, in all likelihood, be convicted if the case were to be tried. He discussed, further, petitioner's criminal record, particularly two prior sexual assault convictions, which would be brought out at trial if the petitioner testified and claimed that the encounter with the victim was consensual. O'Brien also was aware of the approximately nineteen (19) convictions the petitioner had, as well as the fact that the petitioner was on probation for a sexual assault conviction at the time the offenses at issue occurred.
"I understand, when my attorney explained the offer and he explained the State's position. I've seen the police report and the alleged victim's statement, I've read it." Ex. 2, p. 3.
5. On July 3, 2003, Mr. O'Brien spoke with his client at length during a court appearance at which time Mr. O'Brien, the prosecutor and the judge discussed a potential offer. Mr. O'Brien conveyed an offer to petitioner of 15 years to serve with 10 years special parole. Petitioner asked that he go back to the judge and prosecutor to seek a reduction. Mr. O'Brien then came back with the offer of 12 to serve with 13 years special parole, which petitioner accepted.
6. On July 8, 2003, petitioner, pursuant to the plea agreement, was sentenced to nine years incarceration and ten years special parole on the first count of sexual assault in the first degree, and three years incarceration and three years special parole on the second count of sexual assault in the first degree. The sentences were ordered to be served consecutively with each other, for a total effective sentence of twelve years incarceration and thirteen years special parole. A nolle prosequi was entered on the kidnapping charge. On the Violation of Probation, the sentence previously imposed was vacated and the petitioner's probation was vacated.
The prosecutor stated on the record the agreed upon recommended sentence, after which petitioner had an opportunity to confer with counsel, whereupon Attorney O'Brien represented he had no disagreement with what was stated. The Court asked petitioner directly and he, too, said he had no disagreement.
7. The following facts were recited by the prosecutor at the time of the guilty plea and are found to be provable in connection with the October 14, 2002, incident in which the petitioner was charged with two counts of sexual assault in the first degree and one count of kidnapping:
This is a case where the victim met with the defendant at an NA [Narcotics Anonymous] meeting approximately a week before the incident. They dated a couple of times. Allegedly, the victim would not engage in sexual intercourse with Mr. Varchetta over the course of that week. Mr. Varchetta then forced first penile/vaginal intercourse upon the victim on 10/14 of 2002, and then performed cunnilingus on her, thereby constituting the second count of sexual assault in the first degree.
Those crimes — that arrest alone would constitute a violation of his probation. That probation dates back — he was originally sentenced on 10/9 of 1998. Judge Clifford sentenced him on a count of sexual assault in the first degree to a sentence of eight years after eighteen months, ten years probation. On 10/4/99 Mr. Varchetta violated that probation, was sentenced by Judge Clifford to six-and-a-half years, suspended after eighteen months, ten years probation. So the total effective sentence he owes still on that is five years. These convictions today, obviously, constituting a basis as well as simply the arrest."
Petitioner's Exhibit 2, pp. 8-9.
8. Petitioner was arrested on November 13, 2002, and charged in connection with the October 14, 2002 incident.
9. The petitioner never asked to withdraw his guilty plea at any time prior to or after the imposition of the sentence in the case.
10. The Court will discuss additional facts as needed.
DISCUSSION
The petitioner now comes before this Court seeking to withdraw his voluntary plea of guilty to two counts of the charge of Sexual Assault in the First Degree in violation of CGS Section 53a-70 and his admission to a Violation of Probation. "In Strickland v. Washington, 466 U.S. 668, 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 counsels 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 . . ." (Citations omitted; internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 705-06, 846 A.2d 889 (2004).
"Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court applied the two-pronged test set forth in Strickland to guilty plea negotiations, focusing on the application of the second prong requiring prejudice to be shown. The second, or `prejudice,' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, 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 . . ." (Internal quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 206, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). "A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . A different result must be sufficiently probable to undermine confidence in the actual outcome." (Citation omitted; internal quotation marks omitted.) Falby v. Commissioner of Correction, 32 Conn.App. 438, 443, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993).
The claim of ineffective assistance of counsel essentially lists a litany of ways in which trial defense counsel is alleged to have performed deficiently. Count one complains that trial defense counsel failed to: conduct a pretrial investigation, discuss the basis of the charges with petitioner, move to suppress petitioner's statement to the police, discuss with petitioner his chances of prevailing at trial, explain "special parole," discuss the possibility of being charged as a persistent sexual assault offender, discuss his prior sexual assault convictions in relation to the possibility of his being charged as a possible persistent sexual offender, interview the victim, and failed to obtain a continuance so that petitioner and counsel could discuss the advantages and disadvantages of the plea offer. Additionally, the petitioner claims that his attorney threatened to withdraw as counsel if petitioner were unwilling to accept the plea offer. The petitioner argues that as a result, trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, petitioner asks that he be allowed to withdraw his guilty plea.
Attorney O'Brien testified at the habeas trial that he was appointed in the underlying criminal matter and then met with the petitioner. He testified that he and the petitioner discussed the case, including resolving the matter via plea negotiations. O'Brien testified that he did not conduct an investigation at that time because the petitioner was not going to trial and risk having his prior sexual assault convictions revealed at trial. He stated that this was not a case where the petitioner claimed that the incident did not happen, that he wished him to further investigate and that he wanted to go to trial.
Based on the affidavit for the arrest warrant, which O'Brien had obtained, and the petitioner's indication that he had consensual sexual intercourse with the victim, O'Brien decided not to utilize an investigator at that stage of the case. Nor did he have the victim interviewed. Had the petitioner instead denied having sexual intercourse with the victim and insisted on going to trial, O'Brien would have utilized an investigator. However, the petitioner did not want to go to trial and counsel, as was the petitioner's wish, pursued plea negotiations and ultimately arrived at an offer that was acceptable to the petitioner.
The petitioner's main concern, as he was well aware of at the time of the underlying proceedings and up to the present day, was the fact that his potential exposure as a result of the persistent sexual offender was sixty years. By resolving the matter via plea negotiation, the petitioner potentially avoided the equivalent of a life sentence.
". . . The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Internal citations and quotation marks omitted.) Jean-Jacques v. Commissioner of Correction, 73 Conn.App. 742, 749-50, 809 A.2d 541 (2002). The petitioner here has presented little, if any, evidence that goes toward satisfying this burden. While the petitioner did testify that no one told him the medical report (i.e., rape kit administered to the victim) was negative, no other evidence was presented that either corroborates this testimony or demonstrates what benefit any additional investigation would have revealed. Even if the court assumes that the petitioner has shown deficient performance, which he has not, he has failed to show that he would have pleaded "not guilty," proceeded to trial and that a different result was sufficiently probable.
As to the claim that O'Brien was deficient for failing to move to suppress the petitioner's statement to the police, the court finds that claim borders on the frivolous. The petitioner gave a voluntary statement to the police after he contacted them because he was concerned the victim might have contacted the police and reported the sexual assault. The court has been left in the position of speculating what the basis for a motion to suppress a self-serving statement the petitioner gave to the police would be. This the court will not do.
As to the claims that O'Brien did not discuss the basis of the charges with petitioner, discuss with petitioner his chances of prevailing at trial, discuss the possibility of being charged as a persistent sexual assault offender, discuss his prior sexual assault convictions in relation to the possibility of his being charged as a possible persistent sexual offender, and failed to obtain a continuance so that petitioner and counsel could discuss the advantages and disadvantages of the plea offer, the court finds that the evidence presented belies these claims. There simply is no basis for them. And as to the claim that O'Brien threatened to withdraw as counsel if petitioner were unwilling to accept the plea offer, O'Brien testified that he does not threaten clients with withdrawing from representation to pressure them into taking a plea. The court finds that testimony credible and concludes that the petitioner has in no way shown he was somehow coerced or pressured.
The last claim regarding counsel is that Attorney O'Brien failed to explain special parole. A review of the plea transcript demonstrates that the petitioner understood special parole. Instead, he was concerned whether he could comply with the conditions for the duration of special parole term. Pet'r. Ex. 2, at 25-27. Even if this court assumes that counsel did not explain special parole, the canvassing court did explain it to the petitioner. Consequently, the petitioner has failed to show how he was prejudiced.
In the instant case, it is clear that the petitioner's plea was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. Moreover, petitioner was represented by counsel at the time of plea and fully understood the import of what he was doing. Consequently, his plea is valid. A valid guilty plea will estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding. See State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993) ("The general rule is that, absent a statutory exception, a plea of guilty or nolo contendere constitutes a waiver of all defects in the prosecution except those involving the canvass of the plea and the court's subject matter jurisdiction.")
The petitioner's claim in count two is that he is actually innocent of the charges he stands convicted of as a result of his pleas. "In Miller v. Commissioner of Correction, 242 Conn. 745, [747,] 700 A.2d 1108 (1997), our Supreme Court held that the proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Thompson v. Commissioner of Correction, 91 Conn.App. 205, 220, 880 A.2d 965, cert. denied, 276 Conn. 921, 888 A.2d 89 (2005).
"Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence `an open question in our habeas jurisprudence.' Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). This court, however, has held that a claim of actual innocence must be based on newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). `[A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' Williams v. Commissioner of Correction, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence `could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.' . . . Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004).
Despite the petitioner's allegation that he is actually innocent, he has not submitted anything even remotely resembling "newly discovered evidence." Consequently, on that basis alone, this court would be justified in rejecting the claim of actual innocence. The petitioner additionally has not shown neither that he is actually innocent of the crimes of which he stands convicted nor that no reasonable fact finder would find him guilty of the crimes.
The Petition for a Writ of Habeas Corpus is denied.