Opinion
No. CV00 044 64 72S
File Date: November 16, 2006.
MEMORANDUM OF DECISION
The petitioner has filed this petition for a writ of habeas corpus. The petition alleges in the first count that his defense counsel was ineffective in his representation and therefore he was denied his right of due process.
The second count claims his pleas were not made knowingly, intelligently and voluntarily because of his addiction to alcohol and drugs.
The allegations of the third count were withdrawn by Petitioner at the hearing on this matter.
The evidence has established that prior to the arrest of Petitioner on January 13, 1995, he had an addiction to alcohol and drugs, and he was known to the police. The Petitioner was charged with many offenses in Hartford and the surrounding towns. The charges included Robbery 1st, Larceny 1st, Burglary 2nd and kidnapping 1st with a firearm.
Superior Court Judge Joan Alexander who was the prosecutor in Hartford in 1995 testified regarding the course of events when Petitioner was presented for trial. The Petitioner had been incarcerated from his arrest until his trial commenced July 25, 1995. The trial judge, Judge Joseph Koletsky, had denied a Motion to Suppress and as trial started, Petitioner was represented by a public defender who is now Superior Court Judge Kevin Randolph. Petitioner was directed to appear before Judge Carmen Espinosa for a change of plea and the entry of guilty pleas on the various charges. Petitioner was canvassed as to his pleas of guilty and a total sentence of twenty-five years was ordered.
The cases the prosecution was prepared to prove were very strong and there was extensive evidence and witnesses because of the notoriety and media coverage of the various crimes committed by the Petitioner. The plea canvas extensively covered the actions of Petitioner in the commission of the crimes. The maximum exposure on all charges was approximately 200 years of incarceration.
After the Petitioner began to serve the time imposed, he filed a petition for writ of habeas corpus dated December 14, 2000 and on May 24, 2001, a public defender was appointed. His attorney then commenced efforts to obtain a transcript of the court proceedings. It was later determined the transcripts of Petitioner's change of plea were no longer available. A Motion to Reconstruct the Record was granted and a court order ordered Petitioner's attorney, and his public defender, as well as the judge who conducted the plea canvas to be available for the hearing. In compliance with that order, at the time of this hearing, Judge Alexander (former prosecutor), Judge Randolph (former public defender) and an affidavit from Judge Espinosa were available at a hearing on the merits in this habeas corpus proceeding.
Judge Alexander as the prosecutor when Petitioner was tried, stated the arresting officer concluded that he was not under the influence of alcohol or drugs when he confessed. His confession included the location of the gun involved in many of the crimes. The evidence at trial included videos from television crews that recorded the public spectacle. Many witnesses as victims and observers were also available to be presented by the State.
After a Motion to Suppress his confession and other evidence was denied by Judge Koletsky, the Petitioner reconsidered with this attorney the advisability of proceeding to a trial. His attorney, Judge Randolph, discussed the strength of evidence that would be presented and he advised him of the penalties for each of the numerous crimes that could be imposed. Petitioner communicated intelligently with this attorney. The attorney, under the Open File Policy existing in Hartford at that time, had obtained all the evidence available to prove the crimes charged. This was fully discussed with Petitioner who was left to make his own decision regarding a guilty plea and acceptance of a recommended sentence of twenty-five years.
After the Petitioner decided to plead guilty, he was canvassed by Judge Espinosa. Both Judge Alexander, the prosecutor at that time, and Judge Randolph testified Petitioner went through a standard plea canvas and the Petitioner responded intelligently during the canvas and he was aware of the penalties for each of the offenses. The Petitioner had been incarcerated from January 13, 1995 until his trial commenced, and his change of pleas was conducted on August 8, 1995.
The Petitioner was presented in this habeas hearing and he testified he did not understand the canvas by Judge Espinosa because he was under the influence of alcohol and drugs. He also stated illegal substances were available to him in prison and he was still a user at that time. However, the testimony of the prosecutor and his public defender rebuts his claim of lack of understanding the canvas by the judge who imposed his total sentence. His continual incarceration prior to the canvas also fails to support his claim of the inability to understand his responses to the questions asked by the judge because of his consumption of alcohol and drugs during his confinement.
The Petitioner has filed the Protected Health Records relating to his confinement after his arrest on January 13, 1995. The records indicate that prior to his guilty plea and canvas on July 25, 1995, he was examined at the institution where he was confined. In May 1995 his records state he was not under the influence of alcohol or drugs, and there were no signs of such addiction. There is nothing in this medical record to support his claim he was unable to understand the plea canvas because of his claims of alcohol and drug addiction.
Judge Kevin Randolph, who represented Petitioner at his trial and at the time of his pleas of guilty, also testified as a witness at this habeas hearing. His testimony established he had extensive experience representing criminal defendants as a public defender. He also testified he had investigated the charges against Petitioner and had obtained all of the information from the State which indicated a strong likelihood of a conviction. He discussed the evidence as well as the penalties for each offense with Petitioner. The Petitioner was left to decide his change of plea after he was advised of the exposure faced by him after a trial.
Petitioner cannot prevail on a claim of ineffective assistance of counsel based on failure to investigate unless he can show what "specific evidence any further investigation would have uncovered." United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Connecticut courts have stated that "a claim of habeas corpus relief based on ineffective assistance of counsel for failure to investigate cannot succeed where a petitioner fails to show what further investigation would have revealed and how it would have helped him." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148, 153 (2001). Furthermore, "it 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, 394 (1985). Moreover, advice to plead guilty is not necessarily "ineffective even though investigation was not complete." Bowers v. Commissioner, 33 Conn.App. 449, 454-56, cert. denied, CT Page 21211 228 Conn. 929 (1994).
"It is the defendant's burden to show that his counsel's conduct fell below the standard and that (the) lack of competency contributed to the conviction." State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167 cert denied, 425 U.S. 962, 96 S.Ct. 748, 48 L.Ed.2d 208 (1976). "Hindsight is irrelevant." Gentry v. Warden, 167 Conn. 639, 647, 356 A.2d 902 (1975). "(T)he issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time the defendant received effective assistance of counsel." State v. Ralls, 167 Conn. 408, 432, 356 A.2d 147 (1974).
Here, the Petitioner simply states that his trial counsel failed to undertake a thorough investigation, failed to organize a defense, and failed to investigate whether witness statements provided to the State were coerced. The Petitioner offers no additional support for his assertions. The Petitioner has failed to identify what "specific evidence any further investigation would have uncovered" as required. U.S. v. Green, 882 F.2d at 1003; see also Holley v. Commissioner of Corrections, 62 Conn.App. at 175. The Petitioner cannot prevail because his trial attorney represented the Petitioner based on information the Petitioner, himself, provided and the information provided by the State.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show "that his lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra 640; Chance v. Bronson, supra 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the Petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge ( Strickland, supra). The Petitioner's claims must be evaluated in light of these standards.
The evidence presented does not establish ineffective assistance of counsel. It also fails to prove that a lack of competency existed that contributed to deprive the Petitioner by the right to a fair trial. The Petitioner has failed to sustain his burden of proving counsel's representation fell below the standard of reasonableness or that there was a reasonable probability that, but for the performance of counsel, the result would have been different.
For the foregoing reasons, the relief sought by the Petitioner is denied, and the petition is dismissed.