Opinion
No. CV04-4000100 S
October 15, 2007
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. The petitioner seeks, as relief, an order from the court to vacate his present sentence and impose the sentence that he would have received if he had accepted the state's plea offer and/or an order from the court restoring the petitioner's right to file an application for sentence review. Respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.
The matter came before the court on June 1 and June 22, 2007, for a trial on the merits. Witnesses included the petitioner, Lawrence S. Hopkins, his trial counsel, and Katherine E. Teitell, the petitioner's first counsel. As additional evidence, the petitioner offered 7 exhibits and the respondent offered 1 exhibit. Based on the court's review of the testimony and documentary evidence, judgment enters denying the petition for a writ of habeas corpus in part and granting the petition, in part.
FINDINGS OF FACTS
The petitioner was the defendant in a case entitled State v. White in docket number CR03-190578 that was prosecuted in the Judicial District of Fairfield at Bridgeport. The petitioner was charged and convicted, after a jury trial of burglary in the second degree with a firearm, in violation of General Statutes § 53a-102a(a) and he was charged and convicted, after a jury trial, of kidnapping in the second degree with a firearm in violation of § 53a-94a(a).
The petitioner was sentenced by the trial court, Owens, J., to 10 years of incarceration for burglary in the second degree with a firearm, and 15 years of incarceration for kidnapping in the second degree with a firearm conviction, to be served concurrently with the sentence for burglary in the second degree with a firearm conviction. The petitioner's total effective sentence was 15 years of incarceration.
The Appellate Court affirmed the petitioner's conviction for kidnapping in the second degree with a firearm, but vacated the petitioner's conviction for burglary in the second degree with a firearm. State v. White, 97 Conn.App. 763 (2006). The Supreme Court denied the petitioner's petition for certification to appeal. State v. White, 280 Conn. 939 (2006). Thereafter, the state entered a nolle prosequi, pursuant to Practice Book Section 38-29, on the charge of burglary in the second degree with a firearm. However, the petitioner's effective sentence did not change.
The facts regarding the underlying conviction are judicially noticed, and are taken from the Appellate Court's decision: "The jury reasonably could have found the following facts. On June 24, 2003, the complainant was alone inside her parents' home at 418 Crestwood Road in the town of Fairfield. At approximately 4 p.m., the defendant approached the front door and rang the doorbell. The complainant answered the door, and the defendant informed her that he was selling magazine subscriptions to earn money for college. The defendant asked the complainant to look at a brochure to determine if she was interested in purchasing any of the magazines. The complainant informed the defendant that she could not purchase anything because her parents were not home. She recommended that he return sometime around 6 p.m. when her parents would be home from work. The defendant asked the complainant if he could use the bathroom. The complainant hesitated. The defendant explained that he really had to use the bathroom. Without invitation, the defendant brushed by the complainant, who was standing in the doorway, and walked straight down the hallway of the foyer toward the bathroom located off the kitchen. The defendant remained in the bathroom for approximately thirty seconds. When he emerged from the bathroom, the defendant walked slowly toward the complainant. While the defendant was in the bathroom.
"The complainant did not hear the bathroom door shut or the water running from the bathroom plumbing. The complainant remained near the front doorway while the defendant was in the bathroom.
"The defendant, again, asked the complainant to look at the magazine brochure. The complainant briefly looked at the brochure, handed it back to the defendant and told him that she had not heard of any of the magazines on the list. The defendant took the brochure, walked toward the door and closed the door. Placing his hand in the rear pocket of his trousers, the defendant told the complainant that he had a gun and ordered her to sit on a couch in the den adjacent to the foyer. The complainant entered the den and sat on the couch closest to the foyer. The defendant asked the complainant what time her parents would arrive home. Though the complainant had told him earlier that her parents would be home at approximately 6 p.m., this time she told the defendant that they would arrive at approximately 5:30 p.m., hoping that he would believe that her parents would arrive sooner. The defendant then asked if anyone else was home, and she told him that no one else was home at the time. After approximately three minutes, the defendant told the complainant to stand up because he wanted to go upstairs. Walking sideways facing the complainant, the defendant slowly approached the stairwell just off the den. After taking several slow steps, the defendant placed his hand on the complainant's elbow to hurry her along. As the defendant touched the complainant's arm, she began to scream and cry. The defendant told the complainant to be quiet, and the complainant attempted to leave the house via the front door. The defendant blocked the doorway, as the complainant continued to scream. The defendant suddenly stopped and said that he was just playing. The defendant then called the complainant a "scaredy-ass," opened the front door and ran out of the house. Approximately ten minutes elapsed from the time the defendant first arrived at the home to the time that he departed.
"The complainant closed the door and locked it. She immediately called a friend, who lived up the street, to warn her that the defendant was running in her direction. She was unable to contact her friend. The complainant then unsuccessfully called both of her parents. Finally, she reached her boyfriend by telephone and told him what had happened. She then called the police and gave a brief description of the defendant." State v. White, supra, 97 Conn.App. 766-67.
The petitioner testified that he had been arrested 17 times before this case. In those cases, he had entered pleas of guilty without trials because he was guilty. He testified that in those cases, his attorneys reviewed the cases with him and advised him to plead guilty. He testified that in the previous cases his attorneys took the time to explain the cases to him. Here, he complained that both of his attorneys never explained the case to him. The petitioner testified that neither of his attorneys advised him that only a slight restraint of the complainant was sufficient for the jury to find him guilty on the kidnapping charge. In addition, he testified that he was not aware of an offer to plead guilty. This testimony contradicts paragraph 4 in his petition, where the petitioner alleged that the state made a plea offer to the petitioner before trial. Specifically, the petitioner testified that if he knew of the offer to plead guilty with a fifteen-year sentence suspended after 6 years, and probation for 5 years, he would have accepted to plea bargain.
Attorney Teitell represented the petitioner from the start of his case. During her representation of the petitioner she was involved in plea negotiations on petitioner's behalf. Teitell testified that she conveyed the offers to the petitioner and recommended that he accept the offers. Teitell testified that the petitioner was adamant about his innocence. She noted that the petitioner was unrealistic about the charges and the facts of the case. In addition, Teitell explained to the petitioner, the burden of proof, maximum and minimum sentences. She provided the petitioner with a copy of the statutes that described the charges. The petitioner's response was that the police had set him up and that he was innocent. Apparently, the petitioner was receiving advice from an individual who indicated to the petitioner that the evidence against him was insufficient to convict him.
Hopkins represented the petitioner before and during the petitioner's jury trial. Hopkins testified that he did not visit the petitioner in jail. Hopkins conferred with the petitioner at the courthouse. Hopkins testified that offers to plead guilty were made in the petitioner's case before trial. Hopkins testified that these offers were conveyed by him to the petitioner. Hopkins advised the petitioner to accept the plea offers. Hopkins informed the petitioner that the case was strong and that his defenses to the case were weak. Hopkins testified about his extensive experience as a criminal trial attorney. Finally, Hopkins testified that the petitioner was being advised by an out of state attorney.
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 . . ." Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-55 (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, cert. denied, 273 Conn. 922 (2005).
Here, the petitioner claims that trial counsel were ineffective because they failed to explain to petitioner his options short of a jury trial. Teitell testified that she conveyed the offers to the petitioner and recommended that he accept the offers. Hopkins testified that he reviewed with the petitioner all of the offers to settle the case without a jury trial and that he reviewed the strengths and weaknesses of the case with the petitioner. He advised the petitioner against having the jury trial and advised the petitioner to accept the pre-trial offers that were made to him. The court fully credits the testimony of the attorneys who represented the petitioner and finds that petitioner's 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. Petitioner here has failed to undermine this court's confidence in the outcome of the underlying trial 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.
The petitioner requests as habeas corpus relief that he be resentenced to the sentence that was never negotiated because the defendant did not accept the appropriate advice of his counsel. That requested relief must be denied. The court notes that if the petitioner had prevailed on his first prayer for relief he would be entitled to a new trial and not a resentencing. The petitioner and the respondent do stipulate, however, that the court can restore the petitioner's right to sentence review. Because the parties have agreed to stipulate to the restoration of sentence review, the court will not address that claim on the merits.
Therefore, the petitioner's right to sentence review is ORDERED restored in accordance with the stipulation of the parties. The court additionally ORDERS the appointment of an attorney from the office of the public defender to represent the petitioner in connection with his application for sentence review. The public defender shall file the application for sentence review within 30 days from receipt of the court's decision. Accordingly, the writ of habeas corpus is denied in part and granted in part. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision