Opinion
No. CV03 000 40 17
August 23, 2005
MEMORANDUM OF DECISION
On June 30, 2003, the petitioner, Alvin Wilson, filed a petition for a Writ of Habeas Corpus. In accordance with General Statutes § 51-296(a), the court appointed a public defender to represent the petitioner in this matter. Subsequently, the petitioner sought the dismissal of his court-appointed counsel, which was granted on July 2, 2004 following a hearing by the court (White, J.), upon which the petitioner, as was his request, represented himself pro se. On March 8, 2005, the petitioner filed an amendment to the first page of the initial pro se petition.
The petitioner raises a number of clams: that he was denied the effective assistance of trial and appellate counsel; that his case was one of "malicious prosecution and abuse of process;" that false documents were provided to the Office of Adult Probation, which in turn relied on those documents in applying for an arrest warrant for a charge of violation of probation; and that the petitioner is actually innocent of the violation of probation charge. As such, he claims that his conviction for Violation of Probation should be vacated.
State v. Wilson, 74 Conn.App. 912 (2003) cert. denied, 263 Conn. 904 (2003) (trial court's decision was affirmed in a per curiam decision).
The matter came on for trial before this Court on May 18, 2005 at which time testimony was received from: the petitioner and various exhibits were received into evidence, including the transcripts of the petitioner's violation of probation hearing, the petitioner's plea at the Superior Court of the Judicial District of Hartford at Hartford under Docket No. CR01-0552361, the arrest warrant application for the violation of probation, the copy of the Electronic Monitoring Systems fax to probation officer, Julie Bilyak, and a portion of the petitioner's appellate brief. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition is denied.
Having reviewed the testimony and evidence, this Court makes the following findings of fact. CT Page 11768-dr
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Hartford at Hartford under Docket Number CR-96-0162162. On May 15, 1997, the petitioner was sentenced by the court (Espinosa, J.) to a term of twelve years, suspended after one year, with ten years probation. Pet. Ex. A (Tr., Feb. 8, 2002), at 55. On January 13, 1998, the petitioner was arraigned on a charge of violation of probation and on May 15, 1998, was sentenced in Docket Number CR-96-0162162 by the court (Fasano, J.) to a term of eight years, suspended after two years, with three years probation entailing special conditions; Id., at 56; see also Pet. Ex. D. Among the special conditions of probation were that the petitioner had to successfully complete any program assigned. Pet. Ex. D.
2. On or about February 10, 2000, the petitioner again transformed to probation. On January 28, 2000 and February 14, 2000, i.e., both prior to and after release to the community, the petitioner signed conditions of probation forms.
3. On February 25, 2000, the Office of Adult Probation made a referral to Electronic Monitoring Systems, Inc., (EMS) to place the petitioner on electronic monitoring beginning February 28, 2000. This referral was made under the broad supervisory authority granted under the general and/or specific probation conditions.
4. Between February 28, 2000 and March 7, 2000, several attempts by the probation officer and EMS to have the petitioner placed on electronic surveillance failed and resulted in the Office of Adult Probation applying for an arrest warrant for the charge of Violation of Probation.
5. The petitioner, who was represented by Public Defender Michael Isko, appeared before the court (Miano, J.) on February 8, 2002, for a hearing on the Violation of Probation charge. At that time, the CT Page 11768-ds court received testimony from Julia Bilyak, the probation officer who supervised the petitioner starting February 2000, as well Walter Bachelor, a former monitoring systems installer and then accounts manager with EMS. Attorney Isko cross-examined Ms. Bilyak, but did not do so with Mr. Bachelor. The petitioner did not call any witnesses on his behalf. Attorney Isko indicated to the court that he and the petitioner had discussed the petitioner testifying, but that the petitioner did not wish to take the stand. Pet. Ex. A (Tr., Feb. 8, 2002), at 46. The court specifically canvassed the petitioner on his decision not to testify and whether or not he was satisfied with the advice of his attorney. When he was asked whether he had any questions about his right to testify, the petitioner indicated that" I'm straight."
6. Judge Miano found the state's witnesses to be credible and that the state had met its burden of proof of showing by a fair preponderance of the evidence that there was a violation of probation. Judge Miano indicated that the original sentence imposed by Judge Espinosa, as subsequently modified by Judge Fasano as a result of a prior violation of probation, warranted a thorough review of everything that had brought the matter before Judge Miano. The matter was continued to March 1, 2002, to allow Judge Miano to review the matter and enable the petitioner to submit documentation for Judge Miano to consider prior to the second phase (i.e., revocation of probation and/or sentencing).
7. On March 1, 2002, the matter resumed before Judge Miano for a determination whether probation should be continued or revoked. Although the petitioner did not testify, he was given the opportunity to address the court in extended remarks at that time. After the court considered all the evidence it deemed reliable, it found that continued probation was no longer warranted and imposed in Docket Number CR-96-0162162 the full unexecuted portion of the petitioner's sentence, i.e., six years, to serve.
8. Additional facts shall be discussed as necessary. CT Page 11768-dt
Discussion
The standard which the court must apply to the petitioner's claims of ineffective assistance of counsel is well established. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, cert. denied, 268 Conn. 907, cert. denied sub nom., Toccaline v. Lantz, U.S. 125 S.Ct 301, 160 L.Ed.2d 90 (2004).
"To establish the first prong of the Strickland test the petitioner must first establish that his attorney's performance was 'not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . .' The court must be mindful that '[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; CT Page 11768-du that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
"Turning to the prejudice component of the Strickland test, '[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt . . . A court 'hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.' Strickland v. Washington, supra, 466 U.S. 695-96." (Internal citations omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56 (2005).
"A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . In this context, a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome." (Internal citations and quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, cert. denied, 248 Conn. 905 (1999).
It is inappropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too CT Page 11768-dv tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for, a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, supra, 466 U.S. 688.
It became clear at the habeas trial that while the petitioner has averred a great many potential issues, the focal points of the petitioner's claims are essentially to challenge the sufficiency of the evidence, take issue with the admission of documents, and allege that there was a conspiracy between the probation officer who testified, the state's attorney and his public defender. Additionally, the petitioner testified at the habeas trial that his due process rights were violated, although the record at the violation of probation hearing indicates that he exercised his right to counsel and never expressed his dissatisfaction with counsel, despite the opportunity to address the court.
As to the claim that appellate counsel rendered ineffective assistance, which is based on appellate counsel failing to raise issues on appeal, the court finds that the petitioner did not adequately address this claim at trial and presented no evidence in support of that claim. Consequently, that claim is deemed abandoned. And though the petitioner alleges that there was a conspiracy between Probation Officer Bilyak, Attorney Isko and Assistant State's Attorney Mahoney, the record before the habeas court is entirely devoid of evidence in support of this allegation. That claim must CT Page 11768-dw therefore, also fail.
As to the claim that false documents were provided to the Office of Adult Probation and inappropriately were the basis for that office's arrest warrant application, the petitioner has not presented any credible evidence that bears on the authenticity of either the documents or their contents. Even if this court were to treat that claim as one of ineffective assistance of trial counsel premised on counsel's failure to challenge such evidence, the petitioner has failed to rebut the strong presumption that Attorney Isko's conduct fell within the wide range of reasonable professional assistance. The petitioner also has not shown that the result of the proceeding would have been different. Simply put, the evidence does not support the petitioner's assertions.
The last claim the court will address is the challenge to the sufficiency of the evidence. While a claim challenging the sufficiency of the evidence is usually raised on direct appeal from the criminal conviction, a habeas court may address such a claim in the absence of the respondent affirmatively raising the defense of procedural default, Milner v. Commissioner of Correction, 63 Conn.App. 726, 730-34 (2001). The respondent here has not raised procedural default as a defense. Thus, it would be appropriate for this court to address the sufficiency of evidence claim.
The court at this juncture acknowledges that the petitioner also claims that he is actually innocent of the violation of probation charge. The petitioner has not however, presented any evidence remotely approaching the "clear and convincing" standard enunciated in Miller v. Commissioner of Correction, 242 Conn. 745, 794 (1997).
". . . [U]nder 53a-32, a probation revocation hearing has two distinct components. The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf. General Statutes 53a-32(a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the CT Page 11768-dx defendant's probationary status should be revoked. On the basis of its consideration of 'the whole record,' the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes 53a-32(b). In making this second determination, the trial court is vested with broad discretion." (Internal citations and quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90 (1994).
The Davis court held that "the state has the burden of establishing a violation of probation by a fair preponderance of the evidence under 53a-32." Id., at 295. This burden of proof ". . . best furthers the interests of the probationer and the state in the revocation proceeding. Of course, the probationer is interested in maintaining his or her liberty. Nevertheless, one of the primary purposes of probation is to promote the rehabilitation of the probationer. Because both society and the probationer share an interest in a successful rehabilitative process, the state, as well as the probationer, has an interest in a reliable determination of whether probation has been violated." (Internal citations and quotation marks omitted.) Id., at 296-97.
"The important interests in the probationer's liberty and rehabilitation must be balanced, however, against the need to protect the public. Accordingly, probation is granted subject to conditions meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. Therefore, the government's interest is not confined to unnecessarily interrupting a successful effort at rehabilitation. The government also has an important interest in not imprudently prejudicing the safety of the community." (Internal citations and quotation marks omitted.) Id., at 297.
The Davis court went on to note that they were "requir[ing] proof by a preponderance of the evidence to establish the wholly retrospective factual question . . CT Page 11768-dy . of whether a condition of probation has been violated. In the second component of revocation proceedings, trial courts will continue to have broad discretion to determine whether the ends of probation are best served by revocation." (Emphasis added.) (Internal citations and quotation marks omitted.) Id., at 301.
After a thorough review of the evidence and applying these standards to the instant matter, the court finds that the petitioner has failed to show that there was insufficient evidence to find a violation of probation.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
N. Elgo, Judge