Opinion
No. CV 06-4001417-S
November 29, 2007
Memorandum of Decision
The petitioner was sentenced to nine years, execution suspended after four years, with five years probation, as a result of his guilty plea to possession of narcotics with intent to sell and larceny in the third degree. The petitioner now claims that his trial attorney, Michael Gannon, rendered ineffective assistance in investigating and defending the case and in advising him to plead guilty.
Gannon's license to practice law is currently suspended, in part because he did not have a written fee agreement in the criminal case.
I A
The petitioner's most significant claim is that Gannon rendered ineffective assistance by failing to attend court hearings. A somewhat detailed recitation of the facts, as the court finds them, is necessary to adjudicate this claim. The petitioner was arrested in December 2005, and January 2006, and charged in one case with criminal mischief in the third degree, in a second case with possession of narcotics with intent to sell, and in a third case with forgery in the second degree, larceny in the third degree, attempted larceny in the third degree, and possession of narcotics. Initially, a public defender and then a special public defender represented the petitioner. During this time, the state made an offer to resolve all of the cases by recommending a sentence of eight years suspended after three years, with five years probation, in exchange for the petitioner's guilty plea on some of the charges.
Gannon filed an appearance for the petitioner in late May. Gannon was on trial in another courthouse at the time, having been called to trial on short notice. For the May 24 and 31 scheduled court dates in the petitioner's cases, Gannon faxed requests for continuances. The court, Carroll, J., continued the case to June 1. On June 1, Gannon failed to appear and the court continued the case again. The case next came to court on June 16. Gannon did not appear but had attorney Robert Photos file an appearance and represent the petitioner on that date. The petitioner, in the meantime, was arrested in another case charging assault in the third degree. The state revised its offer to nine years (rather than eight), execution suspended after three years in prison, with four years of probation. Photos indicated in court that the petitioner was willing to accept the offer if he could have a continuance of sentencing until August. The court, however, stated that it was not privy to the discussions that led to the new offer and that it desired to set the matter down for another pretrial on June 27.
Gannon appeared in court with the petitioner on June 27. Gannon originally requested that the case be placed on the firm jury list. The court, however, passed the case so that further discussions could take place. As Gannon testified in court, the petitioner rejected the state's plea agreement offer. The case was then placed on the jury list and the court noted that all offers were withdrawn.
On July 18, Gannon appeared with the petitioner for a hearing on a motion to suppress he had filed and to start jury selection. Just prior to the beginning of the suppression hearing, the petitioner indicated that he would accept a revised offer of nine years suspended after four (rather than three), with five years probation if the state would drop the assault charge, so that he might be considered for parole without a conviction for a crime of violence. The petitioner then pleaded guilty to possession of narcotics with intent to sell, larceny in the third degree, and assault in the third degree with the understanding that the state would drop the assault charge at sentencing if it determined that it could not prove it.
Sentencing took place on August 18, 2006. Gannon did not appear. Attorney Ralph Crozier of the same office appeared instead. The court initially vacated the guilty plea to the assault charge and the state entered a nolle. The court then sentenced the petitioner in accordance with the plea agreement to nine years suspended after four with five years probation.
B
A habeas petitioner claiming ineffective assistance of counsel bears the burden of proving both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperty v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). In this case, Gannon's attendance in court was spotty at best. He missed court appearances on May 24, 31, June 1, 16, and August 18. Although Gannon received an order on short notice to appear for trial in another courthouse and requested continuances or had other attorneys cover for him, Gannon simply had more business than he could handle. He should not have taken the petitioner's case if he suspected that he might be unavailable due to other court commitments. Gannon's attendance record thus fell below that of a reasonably competent attorney defending a criminal case.
The more difficult question is whether Gannon's failure to appear in court prejudiced the petitioner. To prove prejudice, a petitioner must show "a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different." Id. In most of the court appearances missed by Gannon, nothing unexpected occurred. Although the case got older with each new continuance, the case was already old when it came to Gannon because the petitioner decided to change attorneys in midstream.
The only specific claim of prejudice is that Gannon's absence on June 16 cost the petitioner the opportunity to accept an agreement calling for the state to recommend nine years suspended after three years rather than nine years suspended after four. It is not clear, however, that Gannon's appearance on that date would have made a difference. The reason stated by the court for not going forward with the plea on that date was not Gannon's absence but rather that the court itself wanted an additional pretrial to discuss the state's offer in view of the petitioner's new arrest. Further, the petitioner did not establish that the offer of nine years suspended after three was no longer available on June 27 when Gannon returned to court. The testimony does show, however, the state made an offer of some sort on June 27 and that the petitioner rejected it. The petitioner had an opportunity at the habeas trial to clarify that the nine suspended after the offer was not available on June 27 and that he would have accepted if it were, but the petitioner did not do so. Indeed, the petitioner testified that, knowing what he knows now, he would not have pleaded guilty at all. Therefore, the petitioner has not proven that he was prejudiced by Gannon's absences and, particularly, by his absence on June 16.
II A
The petitioner's next claims focus on Gannon's handling of the motion to suppress and, ultimately, the plea agreement. The governing rule is that "[a]lthough [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." (Intemal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 150, 868 A.2d 787, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). Nonetheless, "[i]t is within the range of reasonably competent counsel for an attorney to advise his client to plead guilty even though defenses may conceivably exist." State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985).
The suppression issue arises from the fact that, on January 11, 2006, Bridgeport police observed the petitioner involved in what they suspected to be a drug deal at a housing project, followed a car containing the petitioner and one other suspect as it fled the scene, stopped the car, and then conducted a patdown of the petitioner, which extended to the petitioner's groin area. The police then seized a plastic bag tied to the petitioner's penis. The bag contained thirty smaller bags with a total of 7.6 grams of crack cocaine.
Gannon did little to prepare for the suppression hearing on July 18. Although he was aware that there were debatable suppression issues to be litigated, he did no legal research and had no particular legal theory. His strategy instead was, in his own words, to "question the police officers like I know how." This approach is deficient. Gannon should have done legal research, discovered some of the applicable case law, and devised a strategy for questioning witnesses that would fit within that legal framework. Gannon's approach, which was essentially one of "winging it," falls below that which a reasonably competent counsel would employ.
The petitioner, to be sure, did not help his own cause by failing to keep an appointment with Gannon on the weekend before the suppression hearing.
The suppression hearing never took place, however, because Gannon advised the petitioner to accept the state's offer to recommend a sentence of nine years suspended after four. The reason for this recommendation requires some examination. It is initially clear that the petitioner faced considerable prison exposure if he lost the motion to suppress. He was charged with possession of narcotics with intent to sell, possession of narcotics within 1,500 feet of housing project, and criminal trespass in the third degree. These charges alone carried a maximum total exposure of twenty-nine years. See General Statutes §§ 21a-278(b); 21a-278a(b); 53a-109. The state could also have charged the petitioner with conspiracy and with having a prior narcotics distribution offense, which would have added another twenty-five years to the maximum exposure, for a total of fifty-four years.
A conspiracy conviction would carry the same maximum penalty as the underlying offense which, putting aside the enhancement for narcotics distribution near a housing project, would be twenty years. See General Statutes §§ 21a-278(b); 53a-51. Subsequent offender status would add another five years. See General Statutes § 21a-278(b).
Regardless of the outcome of the suppression hearing, the petitioner faced charges of forgery in the second degree, larceny and attempted larceny in the third degree, and possession of narcotics, which stemmed from a second case involving bank fraud. It is true that Gannon incorrectly advised the petitioner that his exposure was thirty years on these charges. The petitioner could not have been convicted of both larceny and attempted larceny; see Practice Book § 42-29 and the evidence indicated that the petitioner in this case was not guilty ofpossession of narcotics, but rather only possession of less than four ounces of marijuana. Thus, the petitioner faced an actual maximum exposure of eleven years in these cases. See General Statutes §§ 21a-279[c]; 53a-139; 53a-124.
The petitioner contends that he could not have been found guilty of forgery in the Fairfield Judicial District, in which Bridgeport is located. The court disagrees. Although the stipulation of facts reveals that a check apparently forged by the petitioner in the amount of $4,100 was deposited into the petitioner's account through an ATM in Waterbury, which is outside of the Fairfield Judicial District, there was no evidence of where the actual forgery took place. The petitioner, who bears the burden in this case, did not prove that the forgery took place outside of the Fairfield Judicial District, where the other offenses in this case took place. The petitioner, in fact, told Gannon that he was guilty of all charges. Moreover, even if the forgery took place in Waterbury, dismissal of the Bridgeport forgery charges would only have led to being charged with the same offense in the Waterbury Judicial District.
Thus, in the simplest terms, the petitioner faced a maximum exposure of sixty-five years if he lost the motion to suppress and eleven years even if he won. Gannon correctly advised the petitioner that the motion to suppress would not necessarily succeed. He was also aware that, once he began the hearing on the motion to suppress, the opportunity for a sentence of nine years suspended after four would no longer be available and that the petitioner's sentence would be more severe. The petitioner had admitted his culpability on the charges to Gannon and thus, other than the suppression motion, there were no real defenses to the charges. Under these circumstances, and notwithstanding his lapses in preparation for the suppression hearing and miscalculation of the sentence in the bank fraud case, Gannon acted reasonably in advising the petitioner to plead guilty with a plea agreement calling for a sentence of four years to serve. See Calabrese v. Commissioner of Correction, supra, 88 Conn.App. 155.[page 7]
This calculation assumes, as would actually be the case, that the petitioner would not be prosecuted in the other cases charging him with assault in the third degree and criminal mischief in the third degree.
B
The petitioner has also briefed and argued the contention that he was prejudiced by Gannon's failure to prepare for and litigate the suppression motion. The court finds the following facts based on the testimony and the exhibits at the habeas hearing. At around midnight on January 11, 2006, Bridgeport police were conducting surveillance at the P.T. Barnum apartments, an area that was notorious for gun and drug crimes. They observed a person who they later identified as the petitioner along with four other individuals engaged in what they reasonably suspected was a drug deal outside one of the apartment buildings. The suspects apparently detected the surveillance and took flight onto a nearby highway in two different automobiles. Officers stopped one of the vehicles on a highway exit ramp several miles from the original scene. When the officers requested that the driver get out of the car, the driver at one point reached into his left waistband area with his left hand, a move that an officer reasonably believed was an effort to obtain a weapon. The driver then failed to comply with an order to place his hands behind his back and a scuffle with the officers ensued.
Unfortunately, the warden has not briefed the issue and has supplied the court no applicable case law. The warden's failure to brief or research the issue has hampered the court's review.
In the meantime, the police placed the sole passenger, who was the petitioner, in handcuffs outside the car. The petitioner was not under arrest at this point. An officer began a patdown and felt a hard item in the petitioner's groin area that was not consistent with normal male anatomy. The petitioner proceeded to lean forward to block the officer's vision. Because the police had experience with drug dealers from the P.T. Barnum area concealing drugs in their groin, a second officer thereupon pulled the petitioner's pants out and reached into them. He pulled out a plastic bag tied to the petitioner's penis. The bag, as mentioned, contained 7.6 grams of crack cocaine.[page 8]
The petitioner's only serious claim is that the seizure of the narcotics from the petitioner's groin area exceeded the scope of a permissible frisk. The governing standard provides that "[d]uring the course of a lawful investigatory detention, if the officer reasonably believes that the detained individual might be armed and dangerous, he or she may undertake a patdown search of the individual to discover weapons." State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997) (citing Terry v. Ohio, 392 U.S. 1, 24 (1968)). "Because a patdown search is intended to secure the safety of the investigating officer, it is strictly limited to a search for weapons. The officer cannot conduct a general exploratory search for whatever evidence of criminal activity the officer might find . . . Any inquiry into the permissible justification for, and boundaries of, a particular investigatory detention and patdown search is necessarily factbound." (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 224, 673 A.2d 1098 (1996).
It was reasonable in this case for the officers to extend the patdown for weapons to the petitioner's groin area. The fact of the matter is that the area below the belt and above the crotch in a man's pants is a pocket area that, like other pocket areas, could conceal a weapon. See id., 220-27 (patdown of front pocket of man's jeans was reasonable). The officers also knew that P.T. Barnum apartments was an area notorious for drugs and guns. The officers had just witnessed what they suspected to be a drug transaction and could rely on the fact that narcotics traffickers are often armed. Id., 226. The situation itself was volatile given the driver's resistance to detention. The driver had reached into his waistband area and the petitioner acted in a manner consistent with an effort to block the officer's vision of his midsection.[page 9] Under these circumstances, an officer should not be required to avoid a protective patdown of a man's groin merely because it may be unpleasant for the suspect. Thus, the patdown in this area was valid.
Once the officer felt the atypical bulge in the petitioner's pants, he was authorized to seize the item causing it. Under both the federal and the state constitutions, an officer may seize non-threatening contraband that he has detected by "plain touch" or "plain feel" during a lawful patdown search. Id., 227-34. In this case, the bulge was inconsistent with the normal male anatomy. The officers had just witnessed what they suspected was a drug transaction and they knew that drug dealers from this area had concealed narcotics in their groin area. Under these circumstances, it was immediately apparent that the item was contraband. The officers therefore had authority to seize it. See id., 228. The petitioner thus has not proven that he was prejudiced by any ineffective assistance of counsel in failing to prepare for or litigate the motion to suppress.
Petitioner "concedes the officers were justified in initiating the search after suspecting that there were narcotics tied to his penis." Petitioner's Brief at 10. Contrary to the petitioner's argument, however, the officers did not then strip the petitioner and conduct a strip search. See generally State v. Jenkins, 82 Conn.App. 111, 123, 842 A.2d 1148 (2004) (strip search permitted when officers have reasonable suspicion of a weapon or contraband following felony arrest).
III
The petitioner's final claim is that his guilty plea was not voluntary and intelligent. The facts belie this claim. As the testimony established, the petitioner admitted his guilt to Gannon on the offenses to which he pleaded guilty. The petitioner's main concerns were not his guilt, but rather that he avoid conviction on a crime of violence and that sentencing take place in August. The state met both of his concerns. Prior to the actual plea, the petitioner spoke to a friend and then agreed to accept the state's offer. The court canvassed the petitioner thoroughly and his answers to the court's questions were unequivocal. The petitioner's decision reflects a rational election to accept a sentence of four years rather than risk a sentence with a maximum exposure ranging from eleven to sixty-five years. The petitioner's choice "represents a voluntary and intelligent choice among the alternative courses of action open to the [petitioner]." (Internal quotation marks omitted.) State v. Parker, 67 Conn.App. 351, 354, 786 A.2d 1252 (2001), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.
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