Opinion
CV164007793S
01-06-2020
Joshua Cruz v. Commissioner of Correction
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
MEMORANDUM OF DECISION
Bhatt, J.
The petitioner seeks habeas corpus relief on the grounds that his second attorney was ineffective at the time he entered his plea of guilty and his third attorney was ineffective at the time of sentencing. The petitioner cannot prove that he was prejudiced by any assumed deficient performance of either counsel and therefore, the petition is DENIED.
I. FACTUAL BACKGROUND
Joshua Cruz was arrested on August 14, 2010 and charged in Docket Number CR10-0108713-T with murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-28, and possession of a controlled substance in violation of General Statutes § 21a-279(c). He was also charged in a Part B information with a violation of General Statutes § 53-202k, which alleged that he was armed with a firearm during the commission of a Class A, B or C felony. He was assigned Attorney Thomas Farver, who represented him from sometime in September 2010 until October 31, 2012. His family hired Attorney William Gerace to represent him thereafter. While represented by Attorney Gerace, the petitioner entered a plea of guilty to the charge of murder before the trial court, Clifford, J., on December 18, 2012. On January 30, 2013, the petitioner wrote a letter to Judge Clifford indicating that he wished to withdraw his guilty plea. On February 22, 2013, a date originally scheduled for the petitioner’s sentencing, Judge Clifford appointed assigned counsel to represent the petitioner and continued the matter. Attorney Dean Popkin thereafter filed his appearance and represented the petitioner. Attorney Popkin filed a motion to withdraw the guilty plea on behalf of the petitioner on April 11, 2013. On May 30, 2013, the motion to withdraw the guilty plea was withdrawn and, represented by Attorney Popkin, the petitioner proceeded to sentencing. On that day, Judge Clifford sentenced the petitioner to thirty-eight years to serve.
The petitioner then filed the instant petition for writ of habeas corpus on January 21, 2016 and counsel filed the operative amended petition on June 29, 2018. The court heard evidence over the course of two days from Attorneys Farver, Gerace and Popkin. In addition, the court heard from Dr. Andrew Meisler, a forensic psychologist; Attorney Michael Pepper, the prosecutor in the petitioner’s case; and Attorney Pat Brown, the petitioner’s legal expert. The petitioner testified with the assistance of a Spanish speaking interpreter. The parties submitted various exhibits and both parties submitted post-trial briefs.
II. FINDINGS OF FACT
The petitioner is Spanish speaking and requires the assistance of a Spanish speaking interpreter. Attorney Farver received voluminous discovery from the state and discussed it with the petitioner. He had relevant documents translated into Spanish for the petitioner and reviewed with him a surveillance video of the parking lot which captures the incident. Attorney Farver had repeated and frequent contact with the petitioner during which they discussed the case. At the time the petitioner was represented by Attorney Farver, there had been no firm discussions about a plea offer.
A. The Incident
On August 14, 2010, the petitioner, along with Jose Ramos, William Rivera, Ignacio Bruno and Obryant Ruiz went to the Gotham Citi nightclub in New Haven. They drove down from Hartford in two cars: a Mazda and a BMW. Prior to going to the nightclub, they stopped at a convenience store, where Ramos observed the petitioner take a firearm from his waistband and put it in the trunk of the Mazda. Rivera told police that the petitioner placed two firearms in the trunk. Meanwhile, the victim Javier Cosme, his brother Justin and Justin’s girlfriend were also at the nightclub.
While at the nightclub, one of the petitioner’s friends said something inappropriate to Justin’s girlfriend, which caused a confrontation. Bruno "cold-cocked" Justin causing the victim to intervene on behalf of his brother. This incident inside the nightclub was captured on a video surveillance camera. The petitioner and his friends were ejected from the club and can be seen on another video surveillance camera walking back to their cars. An independent witness overheard Ramos suggest that the group retrieve firearms and shoot the victim and his brother. Rivera opened the trunk to allow access to the weapons. Ramos told police that the petitioner asked him to retrieve one of the guns and give it to him, which Ramos did. The petitioner retrieved one weapon and Ruiz the other. Bruno then ran across the parking lot when he saw the victim at the other end. Rivera, Ramos, Ruiz and the petitioner followed. A fight ensued and Rivera, Ramos and Ruiz all observed the petitioner shoot the victim several times even as the victim fell to the ground. There were other independent witnesses who also identified the petitioner as the shooter. The victim was shot five times. Most of this incident was also captured on a video surveillance camera. The weapon that fired the fatal shots was ultimately recovered and the petitioner’s DNA was found on its handle.
B. Representation by Attorney Gerace
Attorney Gerace began his representation of the petitioner on or about October 31, 2012. Attorney Gerace recalled next to nothing about his representation of the petitioner in this case. As of November 9, 2012, Attorney Gerace had not received the petitioner’s "entire file." There were three pretrial dates from the filing of Attorney Gerace’s appearance to the date of the petitioner’s plea: November 8, 2012, December 5, 2012 and December 18, 2012. The parties discussed the case with Judge Clifford on all three of those dates. Two members of Attorney Gerace’s office did meet with the petitioner at the correctional facility where the petitioner was being held to discuss the case with him. Attorney Gerace could not remember whether he met with the petitioner at the correctional facility or spoke to him on the phone at all. However, in a letter to the petitioner dated December 13, 2012, Attorney Gerace makes reference to lengthy discussions relating to the law as it applies to the petitioner’s case and his advice that proceeding to trial would not be fruitful given that a best case scenario would be a conviction for manslaughter with a firearm and the attendant firearms charges. He negotiated a sentence "in the range of [forty] years" and, in effect, advised the petitioner to accept the offer.
The offer negotiated by Attorney Gerace called for a maximum sentence of forty-two years’ incarceration with a right to argue down to twenty-five years’ incarceration in exchange for a guilty plea to murder.
C. Representation by Attorney Popkin
Attorney Popkin met with the petitioner at the correctional facility three times. On two of those occasions he was accompanied by a Spanish speaking interpreter; on the last occasion he was not. In addition to meeting the petitioner at the correctional facility, he met with the petitioner on several occasions at the courthouse. Each of these times he was accompanied by a Spanish speaking interpreter. During these meetings, he discussed the evidence in the case, which included police reports and witness statements, with the assistance of a Spanish speaking interpreter. He further discussed which course of action would be in the petitioner’s best interests. He reviewed the minimum and maximum punishments with the petitioner. He reviewed the state’s evidence and any potential defenses the petitioner might have. He discussed self-defense with the petitioner and told the petitioner that in his opinion it was not a successful defense based on the evidence. He discussed the defense of diminished capacity at length with the petitioner and similarly opined that it would not be a successful defense. He was aware of the petitioner’s contention that the petitioner, although admitting that he shot the victim, did not intend to kill him. He discussed this with the petitioner and explained that the evidence would make it difficult to convince a jury that he lacked the requisite intent.
He based this on the surveillance video that shows the petitioner running from the car he arrived in at one end of the parking lot, to the other end where the victim was and the fact that the petitioner was alleged to have shot the victim approximately five times. Attorney Popkin also discussed the other evidence the state would offer at trial: that the petitioner’s DNA was on the gun, that the gun matched the bullets recovered from the decedent, and witness statements from other individuals at the scene. Based on his review of the evidence, he advised the petitioner to proceed to sentencing and not risk a trial.
Although Attorney Popkin filed a motion to withdraw the guilty plea on behalf of the petitioner on April 11, 2013, he advised the petitioner that if the plea was withdrawn the petitioner would be facing trial on a murder charge. Attorney Popkin thought it "highly likely" that a jury would find the petitioner guilty, and was concerned that he would receive a significantly longer sentence than the plea offer contemplated. When he met with the petitioner the day before they were to return to court, he advised the petitioner to forgo the motion to withdraw the guilty plea and explained why he believed that was the best course of action. Although this conversation took place without a Spanish speaking interpreter, Attorney Popkin had no concerns that the petitioner did not understand him because the petitioner was able to converse in English and provide appropriate responses. On the morning of the sentencing, Attorney Popkin spoke to the petitioner with a Spanish speaking interpreter at the courthouse to confirm the petitioner’s decision.
Attorney Popkin attempted to negotiate a definite sentence of forty years in exchange for a plea to manslaughter with a firearm but this was unsuccessful because Attorney Pepper was adamant that he was not changing the charge from murder.
When it became apparent to Attorney Popkin that the petitioner would proceed to sentencing, he shifted his focus to the sentencing arguments. He spoke to the petitioner’s father, who resided in Puerto Rico, twice on the phone. He did not see the need to explore any mental health records of the petitioner because the petitioner did not present in a way that would raise concerns about his mental health. He relied on the extensive pre-sentence investigation (PSI), which detailed the petitioner’s school and work history. Attorney Popkin did not hire a social worker to prepare a mitigation report.
At sentencing, Attorney Popkin highlighted the petitioner’s acceptance of responsibility and pointed out that the petitioner had no prior criminal record and no previous involvement with the criminal justice system. He attempted to explain that alcohol and drug use that night may have caused the petitioner to act in a way that was incongruent with his entire life up to that point. He highlighted the petitioner’s difficult upbringing and alerted the court to domestic violence the petitioner observed in his household as a child. He told the court that the petitioner was so poor at times that the family did not have enough food to put on the table. He told the court that although the petitioner wished to continue his schooling, they family was too poor to afford that and the petitioner had to start working instead. He repeated the petitioner’s lengthy work history outlined in the PSI and made the argument that the split second actions of the petitioner were at odds with the rest of the petitioner’s life. He repeatedly expressed the petitioner’s remorse at his actions and his role in causing the death of the victim. He conveyed the petitioner’s father’s comments in support of the petitioner to the court. Attorney Gerace also spoke on the petitioner’s behalf at sentencing. Finally, Attorney Popkin urged Judge Clifford to impose a sentence of thirty-two years’ incarceration.
D. Attorney Pepper
Attorney Pepper prosecuted the petitioner’s criminal matter. He believed that the case against the petitioner was extremely strong and never considered changing the charge to manslaughter. He would not have changed the charge to manslaughter under any circumstances. He had hoped for a sentence in the forty-five-year range and at sentencing, urged the court to impose the cap of forty-two years as set by the terms of the agreement.
E. The Petitioner
The petitioner has never denied his involvement in the incident and admitted that he caused the death of the victim. He expressed heartfelt remorse for his actions when given the opportunity to speak at his sentencing. When he was eight months old, his mother Gladys Ofray took him and moved to Puerto Rico. There, she became involved with another man, Juan Rodriguez, who became the father figure in the petitioner’s life. He has two half-siblings. Mr. Rodriguez was sporadically employed due to his substance abuse. Despite his mother’s part-time employment, the family often had no food to eat at night. The petitioner witnessed several incidents of domestic abuse between Ms. Ofray and Mr. Rodriguez, which escalated into homicidal threats as the petitioner grew older. When he was six years old, he re-established contact with his biological father Juan Cruz. This drove a wedge in his relationship with Mr. Rodriguez, who neglected the petitioner in favor of his own biological children. When the petitioner returned to Puerto Rico after visiting his biological father in Hartford for a few months, at around the age of eight, his mother began to physically abuse him. At this time he walked in on his mother’s first suicide attempt. At the age of fourteen, he was sent to Hartford to live with his father. He found it difficult to pay attention in school due to his limited English proficiency and was bullied and beaten up for it. He took to smoking marijuana to fit in. A year later, he returned to Puerto Rico, where he took to smoking marijuana instead of going to class. He was accidentally shot in the leg when he and his friends found a gun belonging to the father of one of them. This prompted him to drop out of school, and after recovering, he went to work. A year later he decided to go back to school to pursue his education but he was unable to follow through due to a car accident. In 2009, he returned to Hartford to live with his paternal aunt. In Hartford, he soon found employment and also enrolled in adult education classes. In 2010, he moved into an apartment with his step brother and soon fathered a daughter.
The petitioner is someone who has experienced childhood abuse and trauma and turned to substances to compensate. Dr. Meisler’s report concludes that "it is likely with a reasonable degree of psychological certainty, that [the petitioner] was suffering from longstanding stress/anxiety/depressive symptoms preceding the offense in August 2010."
Most, if not all, of the above information was contained in the extremely detailed and positive PSI that was prepared for and reviewed by the court before imposition of the sentence. The PSI contained much the same recounting of the petitioner’s childhood and exposure to domestic violence, his shuttling back and forth between Puerto Rico and Hartford, his schooling and attempts to further his education and strong work history. The PSI recounts his trauma at observing the domestic violence and his casual use of substances. The petitioner denied any mental health diagnoses or even symptoms. The PSI included detailed statements extolling the petitioner’s virtues submitted by his father and his aunt. It also includes another heartfelt statement of remorse from the petitioner.
The petitioner had never been arrested before the murder.
III. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair" (internal quotation marks omitted); Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.
I. Two-Part Test
To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland . Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. In the context of a guilty plea, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversarial process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
2. Deficient Performance
The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
3. Deficient Performance in Regards to Mitigation at Sentencing
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments." Strickland v. Washington, supra, 466 U.S. 690-91. Thus, "counsel must first evaluate what ‘conceivable line[s] of mitigating evidence’ exist and then decide whether following any of those lines would likely lead to evidence that ’would ... assist the defendant at sentencing.’" Lampkin v. State, 470 S.W.3d 876, 911 (Tex.App. 2015), citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins v. Smith, "the United States Supreme Court held that although defense counsel was aware of certain aspects of the defendant’s background, counsel’s failure to compile a complete social history of the defendant was objectively unreasonable and, thus, counsel rendered deficient performance by failing to make a fully informed decision when deciding against presenting such mitigation evidence." Breton v. Commissioner of Correction, 325 Conn. 640, 669, 159 A.3d 1112 (2017). In deciding whether counsel’s actions in failing to investigate further mitigation were reasonable, courts "must take into account all of the information available to counsel that has informed his or her judgment ..." Doan v. Commissioner of Correction, 193 Conn.App. 263, cert. denied, 333 Conn. 944, 219 A.3d 374 (2019).
The ABA Standards for Criminal Justice: Defense Function, (4th ed. 2017), also highlight the importance of investigating mitigation information. Standard 4-8.3(d) directs defense counsel to "gather and submit to the presentence officers, prosecution, and court as much mitigating information relevant to sentencing as reasonably possible," and 4-8.3(e) directs that, where "a presentence report is made available to defense counsel, counsel should seek to verify the information contained in it, and should supplement or challenge it if necessary ... In many cases, defense counsel should independently investigate the facts relevant to sentencing, rather than relying on the court’s presentence report, and should seek discovery or relevant information from governmental agencies or other third parties if necessary."
4. Prejudice in the Guilty Plea Context
In order to obtain relief, petitioners must also show that they were prejudiced by counsel’s deficient performance. As noted above, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have proceeded to trial. Hill v. Lockhart, supra, 474 U.S. 52; Washington v. Commissioner of Correction, 287 Conn. 792, 835, 950 A.2d 1220 (2008); Carraway v. Commissioner of Correction, 144 Conn.App. 461, 472, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015).
When deciding whether the petitioner had demonstrated that he would have insisted on a trial and evaluating the credibility of that assertion, it is appropriate for the court to consider whether "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). A petitioner’s assertion that he would have insisted on going to trial "suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 488 U.S. 843, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988). The strength of the state’s case is often "the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial"; Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140, 122 S.Ct. 1092, 151 L.Ed.2d 990 (2002); in the face of an allegation of a legal claim or defense strategy not pursued. Carraway v. Commissioner of Correction, supra, 144 Conn.App. 475.
"The prospect of an acquittal, or a more favorable sentence after a trial, is clearly relevant in considering whether counsel’s advice with respect to a plea offer would have changed had he not performed deficiently; indeed, it may be the single most important consideration." Carraway v. Commissioner of Correction, supra, 144 Conn.App. 474; see Hill v. Lockhart, supra, 474 U.S. 60 (evaluation of whether counsel would have changed plea advice depends in large part on a prediction whether the evidence likely would have changed the outcome of a trial).
The petitioner’s credibility is to be "assessed in light of the likely risks that pursuing that course would have entailed." Carraway v. Commissioner of Correction, supra, 144 Conn.App. 476; see Miller v. Champion, supra, 262 F.3d 1074 ("strength of the case that could have been mounted against one pleading guilty to a crime is relevant only because it offers circumstantial evidence of what the petitioner would have done had his counsel not proved to be ineffective"). Nevertheless, the court must determine whether the petitioner, if not for any alleged deficient performance, would have insisted on a trial. An analysis of the strength of the state’s case and the viability of unpursued legal claims are factors to be considered, but they are not by themselves determinative. Cf. Ramos v. Commissioner of Correction, 172 Conn.App. 282, 307, 159 A.3d 1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017) (rejecting petitioner’s claim of prejudice for failing to properly investigate affirmative defense of mental disease or defect where there was a "low probability" of success at trial). While it is not dispositive, the strength of the state’s case against the petitioner is a factor in determining whether he would have, in fact, rejected the offer and insisted on a trial. Further, the petitioner was sentenced to four years’ incarceration, which is less than the mandatory minimum for the original offense. See Yerinides v. Commissioner of Correction, 156 Conn.App. 71, 111 A.3d 961 (2015) (plea bargained sentence well below maximum exposure undermines finding of prejudice).
5. Presumed Prejudice
In certain sixth amendment contexts, prejudice is to be presumed. This occurs: "(1) when counsel is denied to a defendant at a critical stage of the proceeding; (2) when counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing[’; ] and (3) when counsel is called upon to render assistance in a situation in which no competent attorney could do so. Notably, the second scenario constitutes an ‘actual breakdown of the adversarial process, ’ which occurs when counsel completely fails to advocate on a defendant’s behalf." Davis v. Commissioner of Correction, 319 Conn. 548, 555, 126 A.3d 538, 541 (2015), cert. denied sub. nom. Semple v. Davis, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016), quoting United States v. Cronic, supra, 466 U.S. 657. In order for there to be a complete breakdown in the adversarial process at sentencing, "counsel’s failure to advocate for the defendant during the sentencing proceeding must be complete, rather than at specific points." (Internal quotation marks omitted.) Id., 556, citing Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). If prejudice cannot be presumed, the Strickland standard applies.
6. Prejudice at Sentencing
"Sentencing by its nature is a discretionary decision that requires the trial court to weigh various factors and to strike a fair accommodation between a defendant’s need for rehabilitation or corrective treatment, and society’s interest in safety and deterrence." (Internal quotation marks omitted.) State v. Wade, 297 Conn. 262, 284, 998 A.2d 1114 (2010). In determining whether prejudice results from deficient performance at sentencing by way of failing to uncover and present mitigating evidence, the United States Supreme Court, at least in the capital felony context, has required courts to "evaluate the totality of the available mitigation evidence- both that adduced at trial, and the evidence adduced in the habeas proceeding [and reweigh] it against the evidence in aggravation." Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court has reaffirmed "the principle that punishment should be directly related to the personal culpability of the criminal defendant." Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); State v. Peeler, 271 Conn. 338, 449, 857 A.2d 808 (2004). In making an individualized assessment of the punishment to be imposed, "evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." (Citation omitted.) Penry v. Lynaugh, supra, 319. The sentencer must be told if a defendant has the "kind of troubled history [the Court has] declared relevant to assessing a defendant’s moral culpability." Wiggins v. Smith, supra, 539 U.S. 535. Of course, a defendant’s explicit instructions that mitigation not be pursued, interference with counsel’s efforts to investigate mitigation or failure to cooperate with investigative efforts are factors to be considered in determining prejudice. Breton v. Commissioner of Correction, supra, 325 Conn. 670, citing Cummings v. Secretary for the Dept. of Corrections, 588 F.3d 1331, 1358-59 (1Ith Cir. 2009), cert. denied sub. nom. Cummings-El v. McNeil, 562 U.S. 872, 131 S.Ct. 173, 178 L.Ed.2d 103 (2010). In Breton, our Supreme Court held that, in order to prove prejudice under Strickland, the petitioner must make two showings if, as a threshold matter, it is established that the petitioner made a knowing and intelligent decision not to present mitigating evidence. First, "the petitioner must show that if he had been advised more fully about the mitigating evidence, there is a reasonable probability he would have permitted trial counsel to present such evidence at trial." (Citations omitted.) Id., 680. "Second, the petitioner must establish that, if such evidence had been presented, a reasonable probability exists that the result would have been different." (Citation omitted.) Id., 681. Breton involved the death penalty.
However, the jurisprudence for determining prejudice stemming from a failure to present mitigating evidence at sentencing in a non-capital case is not well developed. See C.B. Hessick, "Ineffective Assistance at Sentencing," 50 B.C. L.Rev. 1069 (2009). This court has found no Connecticut case outlining factors to be considered in making that determination, even though our courts routinely have determined whether there was a reasonable probability that the outcome would have been different, see, e.g., Hilton v. Commissioner of Correction, 161 Conn.App. 58, 77, 127 A.3d 1011 (2015), cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016), and have rejected claims where the purported mitigating evidence could also have served to aggravate the sentence. Vega v. Commissioner of Correction, 103 Conn.App. 732, 735, 930 A.2d 75 (2007), cert. denied, 285 Conn. 906, 942 A.2d 416 (2008).
This area was analyzed at length recently by the Texas Court of Appeals in Lampkin v. State, supra, 470 S.W.3d 876. The court in that case identified and developed several factors to consider in making the prejudice determination. First, the court noted that "even a small increase in a defendant’s sentence is prejudicial." Id., 917, citing Glover v. United States, 531 U.S. 198, 200, 202, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (holding that defense counsel’s failure to object to the federal district court’s sentencing calculations that resulted in an "unlawful increase of anywhere between 6 and 21 months" to Glover’s sentence was prejudicial under Strickland); see also Ebron v. Commissioner of Correction, 120 Conn.App. 560, 582, 992 A.2d 1200 (2010), reversed in part on other grounds, 307 Conn. 342, 53 A.3d 983 (2012) (applying Glover in analogous context). In Glover, the United States Supreme Court rejected the position that in order to get relief, a petitioner must show that the increase in the sentence was significant or substantial, "because there is no obvious dividing line by which to measure how much longer a sentence must be for the increase to constitute substantial prejudice." Glover v. United States, supra, 204. However, at least one federal circuit appears to limit Glover to the federal sentencing context, instead requiring proof that, but for counsel’s deficient performance, the state court sentence would have been "significantly less harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). The Fifth Circuit rationalized this by distinguishing between the lack of discretion afforded federal judges in sentencing and the wide latitude given judges in state sentencing schemes. United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004) ("sentencing regimes tend to be more discretionary than the lock-step and predictable federal system"). Of course, the federal sentencing guidelines are no longer mandatory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). It appears, however, that the Fifth Circuit has not altered its standard post-Booker . Dale v. Quarterman, 553 F.3d 876 (5th Cir. 2008). On the other hand, at least one other federal circuit has recognized the incongruity of this approach with the rationale of Glover . United States v. Boultinghouse, 784 F.3d 1163, 1179 (7th Cir. 2015) ("One might be tempted to say that no explanation is needed to justify a sentence of 24 months versus 21 months. But this strikes us as a perilous path to go down. Even small differences in the sentence matter to the defendant, and we do not think that the district court’s obligation to explain its sentencing decision may be excused simply because the stakes may seem less significant to us," recognizing the abrogation of Martin v. United States, 109 F.3d 1177 (7th Cir. 1996), which followed Spriggs). See also Note, "Prejudice And Remedies: Establishing A Comprehensive Framework For Ineffective Assistance Length-Of-Sentence Claims," 119 Harv. L. R. 2143, 2149, 2151 (2006). The court agrees with the rationale of Glover and Boltinghouse, that any difference in an imposed sentence, no matter how small, has constitutional significance under the sixth amendment and the prejudice prong of Strickland . Cf. Dennis v. Commissioner of Correction, 189 Conn.App. 608, 208 A.3d 282 (2019) (remanding matter for re-sentencing to apply sixteen days of jail credit that were lost due to deficient performance).
The court in Lampkin then reviewed caselaw and summarized the factors as follows, taking care to note that its decision applied only to the determination of prejudice in "a non-capital case involving the question of Strickland prejudice during the punishment phase of trial in which the jury assessed punishment." Lampkin v. State, supra, 470 S.W.3d 919. The court stated "no opinion about whether they would be applicable or relevant to any other situation." Id. The court first identified factors to determine prejudice as a result of any type of deficient performance:
(1) whether the defendant received a maximum sentence;
(2) the disparity, if any, between the sentence imposed and the sentence(s) requested by the respective parties;
(3) the nature of the offense charged and the strength of the evidence presented at the guilt/innocence phase of trial;
(4) the egregiousness of counsel’s error- essentially, the relationship between the amount of effort and resources necessary to have prevented the error as compared to the potential harm from that error-; and
(5) the defendant’s criminal history.Id., 922. In cases where the deficient performance involves counsel’s failure to investigate and present mitigation, the court identified additional factors:
(1) whether mitigating evidence was available and, if so, whether the available mitigating evidence was admissible;
(2) the nature and degree of other mitigating evidence actually presented to the jury at punishment;
(3) the nature and degree of aggravating evidence actually presented to the jury by the State at punishment;
(4) whether and to what extent the jury might have been influenced by the mitigating evidence;
(5) whether and to what extent the proposed mitigating evidence serves to explain the defendant’s actions in the charged offense; and
(6) whether and to what extent the proposed mitigating evidence serves to assist the jury in determining the defendant’s blameworthiness.Id. While these factors were developed in the context of a jury’s determination of an appropriate sentence, and Glover was decided in the context of the federal sentencing guidelines, this court finds that the factors apply equally to a situation such as the one in this case, where the sentencing judge is faced with a range within which to sentence a defendant.
In essence, in order for a petitioner to demonstrate prejudice stemming from a failure to investigate and present mitigation evidence, the evidence must contain information that was not presented to the sentencing court through either the PSI or the comments of counsel or others speaking at the sentencing. It must be of a nature that courts routinely consider at the time of sentencing: evidence exploring and highlighting the defendant’s background, his moral and legal culpability, positive aspects of his character and other facts that show his ability to be rehabilitated and likelihood of rehabilitation and becoming a productive member of society. If the area the missing evidence touches upon is duplicative of information already provided to the sentencing court, then in order for it to have an impact on the prejudice analysis, it must be so significant that it demonstrates that the evidence already provided was so insufficient as to render its impact meaningless.
Thus, given Connecticut’s statutory sentencing scheme, the court identifies the following non-exclusive list of factors it will consider when determining prejudice stemming from counsel’s failure to investigate and present mitigation evidence at sentencing:
1. The range of sentence the petitioner was exposed to and whether the maximum sentence pursuant to that range was lesser than the maximum allowable by law;
2. How far below the maximum sentence the petitioner could have received was the sentence actually imposed;
3. The sentencing court’s reasoning for imposing the sentence it did;
4. The strength of the state’s case and the viability of any defenses;
5. Whether mitigation evidence was presented;
6. The nature of the mitigating evidence- in other words, whether the evidence serves to explain the petitioner’s actions or to demonstrate the petitioner’s diminished moral culpability for reasons including, but not limited to, his background;
7. Counsel’s reasons for failing to present the mitigating evidence at issue;
8. Whether the mitigating evidence not presented is cumulative of other mitigation presented at the time of sentencing;
9. The petitioner’s criminal history.
An analysis of these factors will permit the court to determine whether the missing information undermines the court’s confidence in the sentence actually imposed. The court will now apply the law to the facts of this case.
B. DISCUSSION
I. Attorney Gerace
For the purposes of this analysis, the court assumes that Attorney Gerace performed deficiently. Nevertheless, the petitioner cannot prevail because has not proven that he was prejudiced by any assumed deficient performance. In order to succeed, he would have to show that, but for Attorney Gerace’s deficient performance, he would have rejected the offer and proceeded to trial. The petitioner’s ability to prove this is critically undermined by the fact that he did seek to withdraw his plea, was appointed alternate counsel who reviewed the entire file with the petitioner and provided him with the same advice- that he should accept the offer and not risk a trial- and then based on that advice, the petitioner did indeed continue with his plea of guilty and eschewed a trial. There is simply no credible argument to be made that if Attorney Gerace had properly investigated and advised the petitioner, he would have gone to trial. As demonstrated above, the evidence against the petitioner was overwhelming. There were at least three witnesses who identified him as the shooter; his DNA was on the murder weapon and the victim was shot five times at close range. The petitioner has not shown self-defense to be a viable claim. Even if the petitioner were to be successful in convincing a jury that he did not have the specific intent to kill, a contention this court does not find plausible, he would still have been convicted of manslaughter with a firearm in the first degree and the accompanying weapons charge, thereby exposing him to a sentence greater than that he received pursuant to the plea bargain. There is no prejudice.
The respondent asserts the defense of waiver as a result of the petitioner’s guilty plea. The court does not agree. The petitioner’s claims of ineffective assistance of counsel are inextricably intertwined with his decision to plead guilty. See Dukes v. Warden, 161 Conn. 337, 343-44, 288 A.2d 58 (1971) aff’d, 406 U.S . 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972).
Finally, as to the allegation that Attorney Gerace failed to present favorable information to the state and the court in plea negotiations in an effort to obtain a lesser charge or sentence, the court finds that the petitioner has not proven any prejudice. It is clear that the charge was never going to change to manslaughter through the plea bargaining process. Attorney Pepper, the only individual with the authority to substitute a lesser charge at that stage of the proceedings, was adamant that manslaughter was not available as a potential disposition. The petitioner has also not proven that a lesser sentence would have been available. The evidence shows that the state wanted forty-five years’ incarceration and Attorney Gerace convinced Judge Clifford to offer a range of twenty-five to forty-two years. At sentencing, as discussed below, the court was made aware of pertinent mitigation and Judge Clifford ultimately imposed a sentence of thirty-eight years. There is no evidence showing that a lesser sentence could have been obtained through more effective plea bargaining in light of the strength of the state’s case.
2. Attorney Popkin
The petitioner specifically alleges that Attorney Popkin "failed to present any mitigating material and/or evidence to the court prior to sentencing Petitioner"; "failed in his duty to zealously advocate for ... the lowest sentence contemplated by the plea agreement"; and "failed to subject the prosecution’s case to meaningful adversarial testing and failed to present any mitigation, thereby constituting an actual breakdown in the adversarial process." The petitioner-argues prejudice should be presumed pursuant to United States v. Cronic, 466 U.S. 648, 655-57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), or, in the alternative, that he has proven prejudice. There is no deficient performance by Attorney Popkin and even if the court assumes deficient performance, prejudice cannot be presumed under the facts of this case and further, the petitioner has not proven prejudice.
First, the court finds that Attorney Popkin did present mitigation on the petitioner’s behalf at sentencing. He reiterated the petitioner’s lack of involvement with the criminal justice system, highlighted his trauma stemming from observing domestic violence at a young age and pointed the court to his strong work history. He conveyed the petitioner’s remorse and pointed out to the court that the incident was an aberration in the petitioner’s life; in essence an out of character split second decision that caused catastrophic results. This is not a case where Attorney Popkin offered no mitigation or argument in support of a lesser sentence, triggering the presumption of prejudice.
By way of comparison, in Davis v. Commissioner of Correction, supra, 319 Conn. 548, when given the opportunity to advocate on his client’s behalf, where the plea agreement called for a "real right to argue," defense counsel simply said the following: "Your Honor, I agree with everything that everybody said so far, and I don’t think there’s anything left to say from my part." Id., 551. In Davis, our Supreme Court found that counsel "entirely faile[d] to subject the prosecution’s case to meaningful adversarial testing"; United States v. Cronic, supra, 466 U.S. 657 and held that "[c]ounsel’s complete failure to advocate for a defendant, however, such that no explanation could possibly justify such conduct, warrants the application of Cronic." Davis v. Commissioner of Correction, supra, 556. The court so reasoned because defense counsel not only "fail[ed] to advocate for the petitioner at his sentencing hearing, but also [agreed] with the prosecutor’s recommendation of the maximum sentence." Id., 568. Defense counsel’s professed rationale of relying on the PSI was also not persuasive to the court because the PSI "did nothing more than reiterate the prosecutor’s recommendation [and] contained only recommendations for the maximum twenty-five-year sentence by the victim’s family members and the investigating probation officer." Id., 565. Attorney Popkin’s performance here does not come close to what is required for prejudice to be presumed. Thus, it is Strickland that is applicable, not Cronic .
Even if Attorney Popkin performed deficiently, the petitioner cannot prevail because he is unable to prove prejudice. This, admittedly, is not as straightforward. It is a difficult task for a petitioner to prove that there is a reasonable probability that the outcome of the proceeding would have been different, in that the sentencing judge would have imposed a lower sentence. This is a case where the petitioner does not claim that large swaths of mitigation evidence were left uncovered and the sentencing judge settled on a sentence oblivious to significant mitigating evidence. That would be an easy case to determine prejudice. Here, the evidence presented at the habeas trial demonstrates a claim of prejudice based on the degree or volume of mitigation evidence presented. This presents a difficult question: would Judge Clifford, had he been presented with a more detailed accounting of the petitioner’s trauma been moved slightly more and imposed a different, more favorable sentence? Does this court need to be satisfied that Judge Clifford would have lowered the sentence by six months, or a year, or more, in order to find that the petitioner has proven prejudice? The sentence in this case allowed Judge Clifford to impose a sentence anywhere between twenty-five and forty-two years. Judge Clifford chose to sentence the petitioner to thirty-eight years based on the facts of the case, the petitioner’s background and lack of criminal record, the impact on the victims and the severity of the offense. It stands to reason that Judge Clifford could have imposed a sentence of thirty-seven years or even thirty-seven years and six months, or any other variant. While it is certainly possible that Judge Clifford would have imposed even a slightly lower sentence, the standard the petitioner must meet is that of a reasonable probability.
Under the facts of this case, the court finds there is no reasonable probability that the outcome would have been different for several reasons. First, all of the information presented to this court during the habeas trial, was presented in sum and substance to Judge Clifford, either through the comments of Attorney Popkin, the petitioner or the PSI. Judge Clifford was aware of all the relevant circumstances of the petitioner, his upbringing, his trauma, his lack of criminal record, his genuine remorse and his acceptance of responsibility. Second, the court takes into account Judge Clifford’s rationale for imposing the sentence he did. At sentencing, Judge Clifford first indicated that he had read the PSI. Then, when imposing sentence, he explained that he relied on several factors in coming up with the period of incarceration. He mentioned the petitioner’s remorse and acceptance of responsibility. He stated that there were "some very good things in his presentence report" which he normally doesn’t see. He noted that the petitioner’s lack of previous record was "rare," and acknowledged that the petitioner was employed, had no mental health history and received no tickets while in jail. He was aware that the petitioner had some substance abuse issues and describe him as "somebody who had some goals and responsibility in life." He found the five entry wounds into an unarmed victim "hard to explain with the background [he] read." According to Judge Clifford, "nothing ... in this pre-sentence report ... would have predicted" this incident. The number he came up with was based on "all the circumstances here, the seriousness of this, the loss to the victims, looking at the background of the [petitioner] and he’s going to spend, obviously, the majority of his life in prison ..."
The petitioner argues that the mention by Judge Clifford of the lack of mental health history is at odds with the evidence presented to this court. The court disagrees. Several things are clear: the petitioner had no previously diagnosed mental health issues at the time of his plea, he did not report any symptoms or treatment for mental health and he did not appear to be suffering from any mental health issues. His trauma, however, was known. It was known to Attorney Popkin who referenced it in his sentencing remarks and it was known to the PSI writer who included the petitioner’s own recitation of that trauma in the PSI, which was read by Judge Clifford. Thus, the court is not convinced that there was mental health information that was not presented to the sentencing court. While the record is unclear just what Judge Clifford meant when he said that the petitioner had no mental health history, this court makes the reasonable inference that Judge Clifford was referring to the lack of any documented mental health disorder and treatment during the petitioner’s life.
Third, the petitioner was exposed to a maximum of forty-two years’ incarceration, which was significantly lower than the statutory maximum of sixty years’ incarceration for murder. The sentence ultimately imposed was even lower than that- thirty-eight years’ incarceration. Judge Clifford did depart downward from the maximum he could have imposed. Fourth, the state’s case was extremely strong and the petitioner did not have any viable defenses. Fifth, as recounted above, Attorney Popkin did present mitigating evidence that Judge Clifford explicitly took into account, including the lack of a criminal record. Finally, and most significantly, the information provided to this court does not add anything new into the equation- bar the fact that the petitioner was the victim of an accidental shooting- that would be reasonably likely to induce a sentencing judge to depart further downward. This evidence presented to this court "would barely have altered the sentencing profile presented to the sentencing judge." Strickland v. Washington, supra, 466 U.S. 700. Compare Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (where judge and jury at original sentencing heard almost nothing that would humanize petitioner or allow them to accurately gauge his moral culpability, prejudice demonstrated based on failure to present evidence of petitioner’s "heroic" military service in the Korean War, his "struggles to regain normality" upon return, childhood history of physical abuse, and "his brain abnormality, difficulty reading and writing, and limited schooling"), and Wiggins v. Smith, supra, 539 U.S. 534-35 (reversing sentence because mitigating evidence counsel failed to discover and present was "powerful" where petitioner "experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother" along with "physical torment, sexual molestation, and repeated rape during his subsequent years in foster care," in addition to his homelessness and "diminished mental capacities").
In other words, in order to prove a reasonable probability that the outcome would have been different, a petitioner must provide new, substantial mitigation that was not presented to the sentencing court and cannot rely on information that merely supplements or is cumulative to that which was presented to the sentencing judge. Since he has not done so in this case, the petitioner has not proven prejudice.
The court concludes that Attorney Popkin did not render deficient performance and, even if he did, the petitioner has not proven prejudice, as he must, in order to succeed.
CONCLUSION
The petitioner cannot prove prejudice as to any assumed deficient performance by Attorney Gerace and cannot prove deficient performance by Attorney Popkin or any resultant prejudice. The petition is denied.