Opinion
No. CV07-4001932
January 18, 2011
Memorandum of Decision
In this habeas petition, the petitioner contends that his trial attorneys, Fred DeCaprio and Kenneth Simon, rendered ineffective assistance by misinforming him that, if he pleaded guilty to manslaughter and hindering prosecution, he would be eligible for parole after serving 85 percent of his sentence when the law at the time actually provided for parole eligibility after serving 50 percent of a sentence for those crimes. See Public Acts 1995, No. 95-255; General Statutes § 54-125a; Johnson v. Commissioner of Correction, 258 Conn. 804, 819-29, 786 A.2d 1091 (2002). The petitioner, who was subsequently convicted at trial of murder, as charged, and sentenced to a fifty-five-year sentence; see State v. Walsh, 67 Conn.App. 776, 789 A.2d 1031, cert. denied, 260 Conn. 906, 795 A.2d 546 (2002); claims that he was prejudiced because, with proper advice, he would have engaged in plea negotiations with the state, which supposedly had offered to recommend a twenty-five-year sentence for pleas to manslaughter and hindering prosecution.
The court finds, based on the more credible evidence, that the state did not make an offer of twenty-five years or agree to reduce the charges from murder. DeCaprio did not remember any such offer, and the state's attorney handling the case, former Assistant State's Attorney (now Judge) Joan Alexander, testified clearly that she did not make the offer. Although the petitioner in his sentencing remarks claimed that the state had made an offer of twenty-five years, the assistant state's attorney promptly met that claim with a firm denial of making any such offer.
The petitioner claimed that he received information about the offer just as trial was about to start. While such a scenario is possible, it is highly unlikely that the state would first communicate an offer to reduce a murder charge to manslaughter in such a last minute fashion.
In order to prevail on his habeas petition, the petitioner must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, CT Page 2946 546 U.S. 1187 (2006). With no credible evidence of an offer of twenty-five years in exchange for a plea to manslaughter and hindering prosecution, the petitioner cannot prove prejudice from any misinformation he received from his trial counsel. The only authority for finding prejudice in a habeas case in which, as here, the petitioner does not contest the fairness of his trial is case law such as Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). In that line of cases, there were findings that the state had made offers and that counsel had given poor advice as to whether to accept them. Id., 545. Accord Ebron v. Commissioner of Correction, 120 Conn.App. 560, 564, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010). In the present case, in contrast, the court has found that the state did not make the offer that the petitioner claims. Nor did the petitioner produce any other evidence that the parties would have reached a plea agreement had the petitioner received correct information about parole eligibility. This point is especially true given that the petitioner wanted to plead to something that would lead to his release in ten to twelve years. Such a plea agreement would have required the state to reduce the charges from murder, which carries a minimum non-parolable sentence of twenty-five years, to manslaughter — something that the state had shown no willingness to do. Thus, the petitioner cannot prove that any misinformation he may have received from trial counsel changed the outcome of his case or prejudiced him in any way.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. The petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.