Opinion
CV134005372
04-10-2017
Dilaver Vrzivoli (Inmate #380383) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Dilaver Vrzivoli, brings this petition for a writ of habeas corpus claiming that his criminal defense attorney provided him ineffective assistance in violation of the state and federal constitutions, and seeking to have his convictions vacated. The petitioner claims, in his petition and memorandum of law filed June 24, 2013, that his right to effective legal representation was denied in that his counsel, attorney Dean Popkin, failed to properly advise him of the immigration consequences of his guilty plea. Specifically, the petitioner asserts counsel informed him that, as a result of his conviction for larceny second degree, it would be " highly unlikely" that immigration agents would find him and arrest him. The respondent denies the allegations.
The petitioner asserts trial counsel's conduct was constitutionally deficient under the standard announced by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The petitioner claims that had he understood the consequences of his felony guilty plea, he would not have pleaded guilty as charged, but would have either sought a guilty plea to a charge less likely to result in removal, or would have insisted on a trial on all the charges. In his prayer for relief, the petitioner seeks an order of this court vacating his convictions and restoring the cases to the criminal court docket for further proceedings. The court finds the issues for the respondent and denies the petition.
The court heard the trial of this matter on the merits October 8, 2015 and November 15, 2016. The petitioner called two witnesses: himself and attorney Popkin. The petitioner testified by audiovisual device from Albania. The petitioner entered one full exhibit. The respondent called no witnesses and entered three full exhibits into evidence. The parties were provided the opportunity to submit post-trial briefs. Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.
I
Procedural History
On September 20, 2007, the petitioner, having been convicted of reckless endangerment second degree, in violation of Connecticut General Statutes § 53a-64, was sentenced by the court, Ginocchio, J., to a total effective sentence of six months incarceration, execution suspended, followed by two years of probation. (Ex. C.) The petitioner's probation was violated based on his failure to pay restitution. (Ex. C.)
On April 15, 2011, in docket number F02B-CR10-0254169, the petitioner was convicted, after guilty pleas, of larceny second degree, in violation of General Statutes § 53a-123 and violation of the home improvement act, in violation of General Statutes § 20-427(b). (Ex. B.) The sentencing for the aforementioned matters was scheduled for August 31, 2011. Prior to sentencing, the petitioner failed to appear and warrants were issued for his arrest for failing to appear in court on felony and misdemeanor charges.
On January 20, 2012, in the Fairfield judicial district at Bridgeport, in the matter of State of Connecticut v. Dilaver Vrzivoli, docket number F02B-CR07-0223639, the petitioner was convicted after guilty plea of failure to appear second degree, in violation of Connecticut General Statutes § 53a-173. In docket number F02B-CR10-0254169, the petitioner was convicted after guilty plea of failure to appear first degree, in violation of General Statutes § 53a-172. In docket number F02B-MV09-0624603, the petitioner was convicted after guilty plea of failure to appear second degree, in violation of General Statutes § 53a-173. Having waived the Pre-Sentence Investigation, and after canvass, the court, Iannotti, J., sentenced the petitioner to a total effective sentence of four years execution suspended after nine months incarceration, followed by three years of probation. (Ex. B.)
On November 8, 2012, the petitioner was ordered, in absentia, removed from the United States to Macedonia. (Ex. 4.) He was actually removed in June 2013.
II
Law/Discussion
A. Civil Matters-Generally Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
The Proceedings
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC, v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
Credibility
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
B. Habeas Corpus Matters
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694. " A reasonable probability is one which is sufficient to undermine confidence in the result." (Internal quotation marks omitted.) Vasquez v. Commissioner of Correction, 111 Conn.App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008).
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
" A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citation omitted; internal quotation marks omitted.) Id., 689.
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
Immigration Consequences
In Padilla v. Kentucky, supra, 559 U.S. 356, the United States Supreme Court addressed the obligations of counsel during the plea bargaining process as to immigration consequences. The court wrote that: " The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes." (Citation omitted; internal quotation marks omitted.) Id., 360.
The court further noted that " [t]hese changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Padilla v. Kentucky, supra, 559 U.S. 364. The court held that " advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim." Id., 366.
Finally, the court concluded that " [t]here will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." (Footnote omitted.) Id., 368. " The severity of deportation-the equivalent of banishment or exile-only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." (Citation omitted; internal quotation marks omitted.) Id., 373-74.
1. The Petitioner
The petitioner testified that he was currently residing in Albania after having been deported in June 2013. He testified that he was made aware of the removal proceedings during his period of incarceration. He testified that during the pendency of his larceny case, attorney Popkin did not have any discussion with him concerning immigration consequences. He testified that attorney Popkin advised him only that he would plead guilty, pay the court fees, make restitution payments and be placed on probation . . . " that's it." He testified that counsel did not advise him that larceny second degree was an aggravated felony and a crime involving moral turpitude requiring near-mandatory deportation. He claimed not to recall the sentencing court's admonition regarding potential immigration consequences. He testified that had he been made aware of the dire immigration consequences, he would have gone to trial.
On cross examination, the petitioner remained adamant that he and attorney Popkin " never" discussed potential immigration consequences. He testified that the two of them did discuss his prior criminal history, violation of probation, and the nature of the charges against him. On re-direct examination, the petitioner testified that he was not at all concerned, despite not being a citizen, about the immigration consequences stemming from his convictions.
2. Attorney Dean Popkin
Attorney Popkin testified to his representation of the petitioner. He testified that he negotiated a potentially fully suspended sentence if the petitioner appeared at his sentencing with full restitution for the larceny victim. Based on the petitioner's failure to appear, as well as his failure to make full up-front restitution, he was sentenced to a period of incarceration.
Regarding any discussions of immigration consequences during plea negotiations and discussion with the petitioner, attorney Popkin testified credibly that, although he could not recall the exact language of his advice to the petitioner, " the issue of his immigration status is something that we spent a lot of time going over. I understood and knew that it would be likely for him to be deported if he went to jail. Even if he didn't go to jail, there was-he could be deported. But we knew for a fact that if he went into jail, he would in fact be deported. Therefore, we worked out a plea bargain that gave him the opportunity to remain out of jail and then hopefully-certainly not guaranteed but hopefully out of the, out of the immigration or ICE's custody." Counsel testified that he " absolutely" knew that the petitioner could be deported, and he structured the plea agreement to try to keep him out of ICE (Immigration and Customs Enforcement) custody. Counsel testified that he wanted to keep the petitioner out of jail so that he would not " automatically" be transferred to ICE custody.
Counsel testified credibly, and without challenge, that he could not convince the prosecuting authority to reduce the charges against the petitioner to minimize the likelihood of deportation. As to the strength of the state's case, counsel testified, without challenge, that " it didn't make sense for [the petitioner] to go to trial" as the petitioner " did not have a defendable case."
As to the certainty of deportation, counsel testified that " I knew that as a result of the guilty pleas, there was a substantial likelihood he would get deported . . . that's why we structured the plea as we did to hopefully avoid him not getting deported." When asked specifically as to the advice provided to the petitioner, counsel testified that he knew it was a certainty that the petitioner would be deported as a result of the plea; however he could not recall telling the petitioner that he " would absolutely be deported, " in those exact words.
Counsel testified to advising the petitioner to enter pleas as the petitioner, had he insisted on further litigation, would have both been found in violation of his probation after a hearing and convicted after trial. Counsel testified credibly that the petitioner would likely have received a sentence in the range of five to seven years in jail, followed by removal proceedings.
What should not be ignored is the intervening circumstance that destroyed the well thought out plea deal negotiated by underlying counsel: If the petitioner had appeared at his sentencing with his restitution payments, he would have received a fully suspended sentence and been able to, as underlying counsel testified, " remain under the, under-hopefully, ICE wouldn't have found him, which does happen quite often, and he would have been able to remain here in this country."
On cross examination, counsel testified to his experience as a criminal defense attorney, including his experience representing defendants with immigration issues. He testified to having consulted with immigration attorneys in the past and having attended various seminars on the topic presented by the Office of the Public Defender.
Counsel testified credibly that he was made aware of the petitioner's immigration status upon their initial meeting. He testified that the petitioner's immigration status and potential consequences was " always a factor" in the many discussions between the two. Counsel testified credibly to informing the petitioner that larceny second degree was a deportable offense and that he would likely be deported if immigration became aware of him. As to the decision to enter a plea, counsel testified credibly to advising the petitioner that " if he stayed out jail . . . there was certainly an opportunity that immigration would not pick him up." Without recalling his exact language, counsel testified credibly, and it is a reasonable inference for this court to draw, that, having been aware during the course of his representation of the petitioner that, since larceny second degree was " essentially a mandatory deportation offense (as phrased by counsel for the respondent), counsel " must have" had discussions related thereto, as the plea agreement was " structured in such a way as to try to minimize his being found by ICE and deported." Counsel testified credibly that he had structured such plea agreements in the past and that they were successful in aiding his clients to avoid detection by immigration officials. Finally, counsel testified credibly to fully informing the petitioner of his plea bargaining strategy and the potential immigration consequences.
Most recently, on the issue of mandatory deportation for aggravated felonies, the Connecticut Supreme Court has held that " [a]lthough Padilla requires that counsel explain the meaning of federal law, it does not require counsel to predict whether or when federal authorities will pursue the client in order to carry out the deportation proceedings required by law. Nevertheless if counsel chooses to give advice or the client inquires about federal enforcement practices, counsel must still convey to the client that once federal authorities apprehend the client, deportation will be practically inevitable under federal law." Budziszewski v. Commissioner of Correction, 322 Conn. 504, 507, 142 A.3d 243 (2016). This court will assume, without deciding, that the strictures of Budziszewki apply retroactively to Padilla as a clarification of the level of advice to be provided, consistent with Thiersaint v. Commissioner of Correction, 316 Conn. 89, 111 A.3d 829 (2015).
Based on the entire record, including assessing the credibility of the two witnesses, this court finds that the petitioner has failed to meet his burden of establishing ineffective assistance of counsel. He has failed to prove that the immigration advice provided by counsel was constitutionally deficient. Based on the testimony of underlying counsel, and the reasonable inferences to be drawn therefrom, this court is convinced that counsel provided accurate, Budziszewski -compliant advice, as to potential immigration consequences. Further, counsel did not dilute the strength of the admonition by misadvising the petitioner of the means by which he might avoid the attention of immigration officials. Based on the totality of the credible evidence adduced at trial, this court finds that counsel accurately conveyed to the petitioner that once federal authorities apprehended him, he would almost " automatically" be deported.
Finally, separate from the claim of ineffective assistance, but related to the petitioner's failure to carry his burden of proof, the petitioner has failed to establish that the challenged conviction for larceny second degree constituted the sole basis for his removal. Therefore, as an additional basis for denying the petition, this court finds that the petitioner has failed to establish that this petition asserts a claim for which relief can be granted.
III
Conclusion
For the foregoing reasons, the court denies the petition for writ of habeas corpus.
Judgment shall enter for the respondent.