Opinion
No. CV01-0807310
February 19, 2004
MEMORANDUM OF DECISION
The petitioner, Paul Williams, alleges in his petition for a Writ of Habeas Corpus initially filed on March 16, 2001 and amended on December 17, 2003, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently that his sentence should "be vacated and the matter remanded to the trial court for resentencing in accordance with the original 8 year offer." Attorney Brian Woolf represented the petitioner in the case that is the subject of this petition. The petitioner has alleged that his attorney was ineffective. For the reasons set forth more fully below, this court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
This is the verbatim claim from the petitioner's amended petition dated December 16, 2003 and filed with the Court on December 17, 2003.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel did not adequately advise his client in regard to parole eligibility. The petitioner argues that as a result the trial defense counsel did not perform his duties to his client in a professional manner and this led to the petitioner rejecting a pretrial settlement offer that might have been more favorable.
This matter came on for trial before this Court on February 17, 2004. The petitioner, trial defense counsel, Attorney Brian Woolf, as well as an expert witness, Attorney Dennis O'Toole all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing as well as several detailed letters from Attorney Woolf to his client into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact CT Page 2425
1. The petitioner was the defendant in a criminal case in the Judicial District of Hartford at GA-12 Manchester, under Docket Number CR99-168313 in which he was charged with: Possession of Narcotics in violation of CGS § 21a-279(a); Sale of illegal drugs in violation of CGS § 21a-278(b); operation of a drug factory in violation of CGS § 21a-277(c); and risk of injury to a minor in violation of CGS § 53-21.
2. The maximum sentence that could have been imposed had the petitioner been convicted on all of these charges was incarceration for a period of 57 years (13 of which would have been minimum mandatory sentences) and a fine of $215,000.00.
3. The petitioner had ten additional cases pending in the judicial District of Hartford, GA-14 at Hartford and the Judicial District of New Britain. His maximum exposure on these additional files was incarceration for 418 years (90 of which could have been a minimum mandatory sentence) and a fine of $1,844,000.00.
4. The petitioner was also facing a potential charge of sexual assault upon a minor as well as some unspecified charges in the federal District Court.
5. The petitioner has a long criminal history dating back to 1988 for numerous narcotics offenses, weapons charges, and immigration matters.
6. The petitioner is an illegal immigrant to the United States and had been deported once before in 1996 only to once again illegally return to the United States.
7. The petitioner was represented by Attorney Brian Woolf on these files that were pending in the various jurisdictions.
8. As part of the negotiating process to resolve this multitude of cases, Attorney Woolf laboriously negotiated a proposed pretrial plea agreement with the state in connection with the GA-12 case. The initial offer that was then conveyed to the petitioner required the petitioner to plead guilty in exchange for a sentence of eight years with a five-year minimum mandatory sentence.
9. The petitioner rejected this plea agreement because he did not want to accept a minimum mandatory sentence for what he characterized as a non-violent crime.
10. Thereafter, the state modified its offer to a ten-year sentence with no minimum mandatory sentence. The petitioner accepted this plea agreement.
11. On February 23, 2000, pursuant to this plea agreement, the petitioner entered a plea of guilty under the Alford doctrine, to possession of narcotics with intent to sell in violation of CGS § 21a-277(a). The Court, Smith, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas, entered a finding of guilty, and sentenced the defendant to ten years.
In exchange for his plea of guilty to a substituted charge of possession of narcotics with intent to sell in violation of CGS § 21a-277(a), the petitioner would receive an agreed-upon sentence of ten (10) years to serve.
North Carolina v. Alford, 400 U.S. 25 (1970).
12 The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court asking that the matter be remanded back to the trial court for sentencing in accordance with the initial offer of eight years to serve and a five-year minimum mandatory sentence. He is not seeking to withdraw his voluntary plea of guilty to the charge of possession of narcotics with intent to sell in violation of CGS § 21a-277(a).
The crux of the petitioner's complaint is that his counsel misadvised him as to the date upon which he might become eligible for parole if he were to accept the initial offer of an eight-year sentence with a five-year minimum mandatory sentence. The petitioner asserts that had his counsel properly considered the application of Public Act No. 99-196 that amended CGS § 54-125a by deleting subsection (b)(3) effective on October 1, 1999, he would have advised his client that he would have been eligible for parole after the service of four years of the eight-year sentence, notwithstanding the five-year minimum mandatory portion of that sentence. Instead, the petitioner contends that Attorney Woolf misadvised him that he would have to serve the five years minimum mandatory sentence before becoming eligible for parole. In reality, as a result of Public Act No. 99-196, the petitioner would have become eligible for parole after the service of four years of the eight-year sentence. Petitioner contends that it is Attorney Woolf's error that induced him to reject the initial eight-year offer from the state. Thereafter, the petitioner accepted an offer of ten years incarceration with no minimum mandatory sentence with parole eligibility coming after service of five years.
CGS § 54-125a does provide that non-violent offenders may be deemed eligible for parole after the service of fifty per cent of a definite sentence.
This complaint by petitioner is not borne out by his testimony at the habeas trial. The petitioner clearly testified that he rejected the initial eight-year sentence offer from the state because he did not want to receive a minimum mandatory sentence for a non-violent crime. By rejecting that offer, the petitioner thereafter obtained that for which he was looking, i.e. a sentence that did not include a minimum mandatory component. In return, he agreed to an additional two years to be added to the sentence. Now, the petitioner is unhappy with this "bargain" and seeks relief in the form of a petition for a writ of habeas corpus.
This leads to a consideration of the concepts behind plea agreements. The Constitutions of both the United States and the state of Connecticut provide a constitutional right to plead not guilty and require the government to prove the defendant's guilt. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct 853, 859, 122 L.Ed.2d 203 (1993). A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. There is, however, no constitutional right to a plea agreement.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient limes, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
Notwithstanding, this Court recognizes that "plea agreements are an essential and necessary part of the due administration of criminal justice." Medley v. Commissioner of Correction, 35 Conn. App. 374, 377 (1994). It is clear that "without this vital process, the overburdened wheels of justice would nearly grind to a stop. Disposition of charges after plea discussions is not only an essential part of the process but also a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned." State v. Nelson, 23 Conn. App. 215, 218, cert. denied, 216 Conn. 826 (1990), cert. denied, 499 U.S. 922 (1991). Moreover, since the plea agreement is essentially a contract between the defendant and the state, many of the principles of contract law apply when considering disputes involving plea agreements. Normally, a petition for a writ of "habeas corpus is the ultimate inquiry into the fundamental fairness of a criminal proceeding." Summerville v. Warden, 229 Conn. 397, 421 (1994). "The writ of habeas corpus, as a vehicle to challenge a criminal conviction, is reserved for convictions that violate fundamental fairness. In order to be successful, a habeas corpus petitioner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Thus, ordinarily a habeas corpus petitioner must establish some fundamental constitutional violation entitling her to relief." Safford v. Warden, 223 Conn. 180, 190 (1992). Here, of course, the petitioner is alleging that he was deprived of the effective assistance of counsel. If true, then there may well have been a deprivation of a fundamental constitutional right, specifically, the right to counsel embodied in the Sixth Amendment to the United States Constitution.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
In this case the petitioner has been convicted of the offense of possession of narcotics with intent to sell pursuant to his plea of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151. (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty plea is valid. Indeed, the petitioner does not even make a challenge to the finding of guilty. He is, however, displeased with the sentence, despite the fact that it is exactly that to which he agreed. The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, 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.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002).
It is difficult to find that the performance of Attorney Woolf was below the standards of a reasonably competent defense counsel. In this case, it is clear that Attorney Woolf was faced with a task of epic proportions in attempting to resolve the petitioner's legal difficulties. The petitioner has a lengthy criminal record both in the state and federal arenas. He is not a citizen of the United States, twice entering illegally with the second time following a deportation back to his home of Jamaica. He was heavily involved in drug trafficking in numerous locations around the state of Connecticut and faced the quite real prospect of spending the rest of his natural life incarcerated. While technically at the time Attorney Woolf wrote the letter that was introduced into the record as Petitioner's Exhibit 1, he was indeed correct in stating that the petitioner would have to serve the five-year minimum mandatory sentence on a day-for-day basis, that changed nine days later. Consequently, the advice that implied the petitioner would have to serve five years of the eight-year sentence before becoming eligible for parole was incorrect. In reality, as of October 1, 1999, the petitioner would have been eligible for parole after having served four years. Although at the habeas trial, the petitioner has focused on the parole eligibility as a crucial point his own testimony and actions when he pled guilty in February 2000 show that his true motivation was to avoid receiving a minimum mandatory sentence of five years for a non-violent crime. Had parole eligibility been the critical point in the petitioner's mind back in 1999-2000, then it is inexplicable as to why he would have rejected an eight-year sentence even if he was erroneously led to believe this would mean he would stay in jail for five years before becoming eligible for parole, only to accept a ten-year sentence that would mean he would stay in jail for five years before becoming eligible for parole. It is clear to this Court that during the plea bargaining process the petitioner was not concerned with his eligibility for parole but was rather, as he testified at the habeas trial, intent upon avoiding a five-year minimum mandatory sentence for a non-violent crime. Attorney Woolf's error in regard to parole eligibility cannot be the reason why the petitioner rejected the initial offer.
The effective date for Public Act No. 99-196 was October 1, 1999.
Moreover, this misstatement by counsel does not, in any way, undermine the reliability of the conviction. "The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with numerous serious charges. Had he elected to exercise his constitutional right to plead not guilty and gone to trial on these matters and been convicted, he would have faced a potentially long period of incarceration, likely for the remainder of his natural life. His total "exposure" was, therefore, high.
At the time he entered his guilty plea in February 2000, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a favorable sentence.
The petitioner has not raised any challenge to the plea, alleged actual innocence or otherwise challenged the validity of the conviction. He is complaining that because of his lawyer's ineffectiveness, he was unable to obtain the benefit of a plea agreement that he rejected and now feels he would have been better off accepting.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from tidal counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
"Although Stickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139 at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
Moreover, it is clear that the petitioner did not suffer any prejudice as a result of the misstatement by his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still 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." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain although he'd have been better off had he accepted the first offer rather than rejecting it; and was ably represented by counsel who did a superb job in attempting to resolve all of the petitioner's legal difficulties. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct 640, 7 L.Ed.2d 556 (1962); D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
The petitioner asks this court to remand the matter back to the trial judge for resentencing. Pointedly, the petitioner does not ask to have the conviction set aside. The petitioner does not allege illegal detention. The petitioner does not allege that he is actually innocent of the charges in this case. The petitioner apparently now feels that he made a bad decision in rejecting the initial offer from the state and wishes to have that offer reinstated although it was through his own actions that the offer went away. It is not the province of the habeas court to "turn the clock back" to allow the petitioner to seek something that he wishes he had done earlier. The mandate of the habeas court is to serve as a bulwark against injustice. "Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established." Johnson v. Commissioner of Correction, 258 Conn. 804 at 813 (2002). Here, it would seem that the proper remedy for the complaint of the petitioner is to seek a sentence modification from the trial court, not the issuance of a writ of habeas corpus.
The Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge