Opinion
No. CV03-0473009
February 26, 2004
MEMORANDUM OF DECISION
Before the court is the amended habeas corpus petition of the petitioner Scott Winer dated August 15, 2003 as well as a purported second amended petition filed during the hearing on December 5, 2003.
On January 5, 1998, the petitioner entered three pleas of nolo contendere to charges consisting of two counts of Risk of Injury to a Minor, in violation of Connecticut General Statutes § 53-21 and one count of Risk of Injury to a Minor in violation of C.G.S. § 53-21(2). On March 26, 1998, the trial court (Byrne, J.) sentenced the petitioner to three concurrent terms of eight years of incarceration, suspended after two years and followed by five years probation. The total effective sentence, therefore, was eight years suspended after two years, followed by five years probation.
On May 1, 1999, the petitioner, pro se, filed motions in the trial court to vacate his sentence, withdraw his pleas and plead anew which motions were denied by Byrne, J. on December 15, 1999. Petitioner appealed the denial of said motions ( Winer I), which appeal was denied by the Appellate Court.
State v. Winer, 69 Conn. App. 738 (2002).
On March 24, 2000, petitioner completed his period of incarceration and was to begin his probationary period. On March 27, 2000, the petitioner reported to the office of adult probation and notified his probation officer that he would be residing in Massachusetts. The petitioner was informed that leaving the state would be a violation of his probation and that he could not leave the state of Connecticut until he received formal permission for said removal. The Commonwealth of Massachusetts subsequently denied the defendant's request for an interstate compact transfer. On March 28, 2000, the petitioner failed to report for a scheduled meeting with his probation officer, and, did further fail to contact the Office of Adult Probation, as required on March 29, 2000. Furthermore, the petitioner failed to contact the sex offender registry, as was required. Consequently, the petitioner was arrested for violating his probation.
The petitioner's violation of probation hearing before Espinosa, J. took place on May 8 and 9, 2001; the court concluding that the petitioner did violate probation. The court's sentence included revoking "the suspended sentence ordered by the court on March 26, 1998, and that (the petitioner) be committed to the custody of the Commissioner of Correction for the execution of sentence which is a period of six years." T. May 8 and 9, 2001, Espinosa, J. p. 177.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be utilized in the evaluation of 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 and prevailing upon such claims:
"The right of a defendant to effective assistance of counsel 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 this 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, 195 Conn. 636, 640 (1985); Chance v. Bronson, supra, 678. The assistance must be viewed in the 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, 59 A.2d 206 (1989)." Further, strategic or tactical choices or decisions of counsel are not subject to challenge. ( Strickland, supra.) The petitioner's claims must be evaluated in light of these standards.
The petitioner was originally charged in three separate cases with two counts of Risk of Injury to a Minor Child in violation of § 53-21; Sexual Assault in the Fourth Degree, in violation of § 53a-73a; Tampering with a Witness, in violation of § 53a-151; and Risk of Injury to a Minor, in violation of § 53-21(2). This last charge required that the offender be under the supervision of the Office of Adult Probation for a period of from at least ten to thirty-five years.
The petitioner was represented in all three cases by Attorney Peter Soulsby. The conviction of the petitioner on all counts could have resulted in incarceration for a period of up to forty-six years. Soulsby was able to negotiate nolo contendere pleas resulting in incarceration for a period of two years on charges calling for potential exposure of thirty years in prison. This accomplishment by counsel would appear to be far from evidence establishing deficient handling of petitioner's cases by his counsel. To the contrary, the petitioner's sentence would appear to justify the petitioner's election to plead rather than risk a far lengthier incarceration, and, further, evidence exceptional lawyering on the part of petitioner's counsel.
The petitioner is critical of counsel's performance in another respect, concerning petitioner's claimed surprise at the probation portion of his sentence, urging that he had no warning that probation would follow any period of incarceration. Soulsby's testimony, which the court finds credible, contradicts the petitioner in disclosing that the subject of probation was thoroughly discussed with petitioner prior to sentencing. Furthermore, the petitioner cooperated with the interview conducted by the Office of Adult Probation for both the PSI and the AIP. Nor did the petitioner express any objection or even surprise on March 26, 1998 when sentencing was imposed by Byrne, J. Thereafter, upon his release from prison on March 27, 2000, petitioner signed the standard "Conditions of Probation Form" thereby, attesting to his understanding and signifying his intention to abide by said conditions. The court is forced to conclude that the petitioner's claim of ignorance as to the probationary portion of his sentence does not hold up when his attorney's testimony together with his own action as disclosed by the record is examined. Finally, the fact that "probation" was a known component of the plea agreement is irrefutably demonstrated by the sentencing memorandum filed by the petitioner dated March 20, 1998: "A plea agreement has been negotiated between the state and the defendant as follows: Enter pleas of nolo contendere to three counts of Risk of Injury to a Minor with the understanding that the court would impose a suspended sentence after a maximum period of two years of incarceration with a five year period of probation." Emphasis added.
The petitioner urges that he is entitled to habeas relief because the Appellate Court found that Judge Byrne's sentence was "statutorily impermissible" in that "it did not satisfy the mandatory minimum requirement embodied in § 53a-29(e) which required that "the period of probation . . . shall not be less than ten years nor more than thirty-five years for conviction of a violation of subdivision (2) of § 53-21 . . ." State v. Winer, supra. The Appellate Court concluded that "by sentencing the defendant to a five year period of probation, as opposed to ten, the court imposed an illegal sentence on the defendant." Nevertheless, the Appellate Court in its opinion cited the case of Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), wherein the Supreme Court stated, "This court has rejected the doctrine that a prisoner, whose guilt is established . . . is to escape punishment altogether, because the court committed an error in passing the sentence." Id., at 166-67. Therefore, the petitioner cannot claim his freedom on the basis of his illegal sentence whose probationary portion was to be amended by the trial court in accordance with the direction of the Appellate Court.
Finally, the court must deny the petitioner's claim that the plea agreement "did not provide for a consecutive, revocable term of probation" under and because of the doctrine of issue preclusion, as the Appellate Court decision is unequivocal in stating: "It is clear that the defendant contemplated a period of probation when he entered into his plea agreement." State v. Winer, supra at 753.
The petitioner's present incarceration results from Espinosa, J.'s revoking of the petitioner's probation. The Appellate Court has reviewed the petitioner's claims with respect to Espinosa, J.'s revocation and has affirmed the petitioner's probationary revocation. State v. Winer, 75 Conn. App. 533, 538 (2003):
Once the court (trial) proceeded to the dispositional phase of the hearing, it found the beneficial purposes of the defendant's probation no longer was being served because he had not `made a reasonable attempt to alter [his] lifestyle, to be in compliance with the conditions of probation.' Additionally, the court found that the defendant was manipulative and that he interpreted directions given to him by his probation officer in a manner that suited him instead of complying with instructions. The court's determination to impose the remainder of the defendant's sentence, under those circumstances, was an appropriate exercise of judicial discretion.
The petitioner sought Supreme Court review of both of his Appellate Court decisions, which requests were denied. Once again issue preclusion requires that this court accept the decision of the Appellate Court, and therefore conclude that petitioner's present incarceration is legal and appropriate, absent a finding that petitioner was denied the effective assistance of counsel in the trial court. In this regard it is appropriate to once again return to Strickland where at pg. 669 the United States Supreme Court states:
The proper standard for judging attorney performance is that of reasonably effective counsel, considering all the circumstances. When a defendant complains of the effectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly differential and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.
Applying the Supreme Court's guidance, it is apparent to this court that the petitioner has not met his burden of proving ineffectiveness in the representation at plea of Attorney Soulsby. On the contrary, Attorney Soulsby is to be complimented at achieving the agreement as to sentencing in this case, and the court finds that Soulsby's representation did more than meet the standard of reasonableness and competency required of criminal attorneys.
In closing, the court would remind the petitioner that his present incarceration is not due to Judge Byrne's sentence, but rather to his own conduct resulting in revocation of his probation.
The Amended petitions of the petitioner are denied and Judgment may enter for the respondent.
David W. Skolnick, Judge