Opinion
No. CV 05 4000266 S
March 16, 2009
MEMORANDUM OF DECISION
The petitioner, Stanley Foote, filed a petition for a writ of habeas corpus on December 13, 2005, challenging the legality of his detention. He was charged with transportation of narcotics with the intent to sell by a non-drug-dependent person in violation of General Statutes § 21a-278(b) and possession of narcotics in violation of General Statutes § 21a-279(a). Upon pleading nolo contendere, the petitioner was convicted on November 13, 2002 of transportation of narcotics with the intent to sell by a non-drug-dependent person. The petitioner was represented throughout the criminal proceedings by attorney Leonard Crone. Attorney Crone filed a motion to suppress the narcotics evidence, which was denied by the court, Holden, J., on April 11, 2002. The petitioner's nolo contendere plea preserved his right to appeal this decision; see General Statutes § 54-94a, which he did; the Appellate Court upheld the trial court's decision. See State v. Foote, 85 Conn.App. 356, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 43 (2005). The petitioner was represented by attorney David Bachman on appeal.
The respondent had filed a cross-appeal from the Appellate Court's opinion, which was similarly denied. State v. Foote, 273 Conn. 937, 875 A.2d 44 (2005).
In a second amended petition filed August 28, 2008, the petitioner alleges that his convictions were the result of ineffective assistance of counsel in that attorney Crone (1) failed to conduct adequate pretrial investigation, (2) failed to present evidence to the court of the fact that the petitioner was drug-dependent and have the petitioner sentenced as a drug-dependent person, (3) failed to present, argue and brief the motion to suppress adequately, (4) failed to investigate the strengths and weaknesses of the state's case and properly inform the petitioner of the likely outcome or range of sentences he faced, and (4) failed to request a probable cause hearing prior to the plea agreement. He also alleges that he received ineffective assistance from his appellate attorney in that Bachman failed to adequately brief or argue the trial court's error in denying the petitioner's motion to suppress.
The respondent filed an amended return on February 15, 2008, in which it denied the material allegations of the petition and that the petitioner was entitled to relief per order of the court, Santos A., J., the return was deemed to be responsive to the second amended petition even though filed before.
The matter came before the court for a trial on the merits on April 2, 2008, August 7, 2008 and August 28, 2008. Testifying were the petitioner, attorney Crone, Sonia David, an acquaintance of the petitioner, attorney Lori Welch-Rubin, and Dr. Ralph Balducci, a psychology expert. Both parties submitted exhibits including transcripts of the criminal proceedings, police reports detailing the petitioner's arrest, attorney Crone's motion to suppress and the trial court's memorandum of decision on the motion.
Pursuant to General Statutes § 51-183b, judgment must be entered within 120 days of the completion of trial. In the absence of objection, however, the court may file a decision in excess of this 120-day deadline. "If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied . . . Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these cases do not support the [notion] that § 51-183b invariably requires the prior consent of both parties in order to waive the time limits the statute imposes.
"These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object . . . Such consent may be implied from the conduct of the parties or their attorneys, in proceeding without objection with the trial or argument of the case, in remaining silent until the judgment has been rendered or in failing to object seasonably after the filing of the decision." O.J. Mann Electrical Services, Inc. v. The Village at Kensington Place, L.P., 99 Conn.App. 367, 372, 913 A.2d 1107 (2007). Because no objection was filed by either party, the court now issues this decision despite exceeding the statutory deadline.
FACTS
The following underlying facts are taken from the Appellate Court's opinion in State v. Foote, supra, 85 Conn.App. 356. "In its ruling on the defendant's motion to suppress, the court found the following facts. At around midnight on November 18, 2000, while conducting his routine patrol southbound on Route 8, Trooper Matt Comeau of the state police noticed a disabled vehicle on the northbound shoulder of the highway near exit nineteen. Comeau continued his patrol, turning around at exit eleven in Trumbull. As he returned northbound on Route 8, he observed the same disabled vehicle on the shoulder of the highway with its hazard lights on and people standing outside of it. Comeau activated his overhead lights for safety reasons and pulled onto the shoulder in order to see whether assistance was needed. As he approached, he observed the driver and two passengers get into the vehicle. The defendant then started the vehicle and attempted to drive away; however, the vehicle bucked and came to a halt.
"Comeau pulled in behind the vehicle and, to provide safety and to light up the scene, he activated his police cruiser's spotlight. The defendant, who was the driver, exited the vehicle and walked toward the back of the car. Comeau told him to return to his vehicle because it was unsafe for him to be walking on the shoulder so close to the travel lane. As the defendant returned to his vehicle, he threw his keys onto the roof of the vehicle. Comeau observed the passenger seated in the front seat of the vehicle rocking forward and from side to side. Comeau radioed his troop and requested a license plate check on the vehicle. The check indicated that the license plate matched the vehicle. The defendant again exited his vehicle and walked toward the rear of the car. Comeau yelled to the defendant to get back into his vehicle. The defendant gestured with his hands and then advanced toward Comeau. Comeau observed that the defendant, who was taller and bigger than Comeau, was sweating and appeared to be nervous or confused. The defendant returned to his vehicle.
"Comeau radioed for backup and, shortly thereafter, two Seymour police officers and a state trooper arrived on the scene. Once the backup arrived, Comeau approached the defendant's vehicle, asked the defendant what was wrong with the car and requested the defendant's license and registration. The defendant said that he had left his license at home. He could not produce the registration. Comeau learned that the defendant and his passengers were coming from Bridgeport and going to Waterbury and that they had run out of gasoline. The defendant told Comeau that they had just filled up their tank with gasoline obtained from across the highway. Comeau noticed a gasoline container in the back seat of the vehicle.
"Comeau asked the defendant to exit the car and walk to the rear of the vehicle. Comeau patted the defendant down but found nothing. He then asked the defendant if there was anything in the car and whether he could search it. According to Comeau and Trooper Steven Ruspis, who observed and heard the conversation between the defendant and Comeau, the defendant nonchalantly responded that Comeau could search the car. During the encounter, the troopers and police officers did not raise their voices, threaten anyone or have their service weapons drawn. Although there was a police dog present at the scene, it was not used to menace or frighten anyone.
"Comeau searched the interior of the vehicle and discovered two brown packages. He noticed that the packages smelled like mustard. The contents of the packages tested positive for the presence of cocaine.
"On November 13, 2002, the defendant entered a conditional plea of nolo contendere as to the count charging him with possession of cocaine with intent to sell by a person who is not drug-dependant, reserving his right to appeal to challenge the denial of his motion to suppress. The state nolled the remaining charges against him. The court sentenced the defendant to eight years incarceration and five years special parole." Id., 358-60.
The petitioner testified that he did not give Trooper Comeau permission to search his car. He also testified that he had informed attorney Crone of his substance abuse problems at their first meeting, and that he had received inpatient treatment for drug use in 1990-1991. At the time of his arrest, however, he was not in treatment for drug abuse. He testified that he did not specifically discuss the issue of getting tested for drug dependency with attorney Crone and could not recall discussing drug dependency with regard to sentencing. He testified that Crone simply told him that "it was either take the offer or proceed to trial that day," and could not recall discussing minimum or maximum sentences with Crone.
Sonia David testified that she knew the petitioner through her brother, William David. She had seen the petitioner high and drunk constantly, and testified that he was always under the influence. She was not contacted by attorney Crone, but would have testified in the petitioner's criminal proceeding that he was drug-dependent.
Attorney Crone testified that he met the petitioner four or five tines outside of court. Although the petitioner appeared to have been drinking alcohol prior to two court appearances, Crone had no reason to believe he had illicit substance abuse problems. The petitioner did not raise the issue with him, and there was no indication of drug dependency in his file. Crone also testified that there was no indication that the petitioner's interview with the police had been videotaped. Crone felt that there was no viable defense to the actual criminal charges, and that the motion to suppress was dispositive of the case. Finally, Crone testified that he did not seek a probable cause hearing because this could open up a potential life sentence for the petitioner and was not likely to have yielded any valuable discovery.
Attorney Welch-Rubin testified that there were discrepancies between the police report and Trooper Comeau's testimony that attorney Crone failed to elicit during the suppression hearing. She also testified that a defense attorney has an obligation to look at a defendant's conviction history.
Finally, Dr. Balducci testified that, based on the petitioner's medical history and his interview with the petitioner, there was a high probability that the petitioner was abusing drugs at the time of his arrest in November of 2000. He also testified that his prison report listed the petitioner as using cocaine and alcohol.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant'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 . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, CT Page 5104 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .
"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 factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008). "[U]nder the test in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008).
A. Motion to Suppress 1. Attorney Crone
The petitioner contends that attorney Crone was ineffective in failing to argue the motion to suppress adequately. Attorney Welch-Rubin testified that there were discrepancies between the police report and Trooper Comeau's testimony that Crone failed to elicit. A review of the record reveals little in the way of material discrepancies that would have significantly undermined Comeau's testimony at the suppression hearing.
First, attorney Welch-Rubin testified that attorney Crone did not bring out the fact that the police report made no mention of what Trooper Comeau testified to at the suppression hearing: that he was driving southbound on Route 8 when he first saw the petitioner's vehicle, then saw it in the same spot when he returned northbound on Route 8. While this difference is not entirely irrelevant, characterizing it as a "discrepancy" is somewhat overzealous; it more reasonably is seen as simply an unimportant omission in the police report. Questioning Comeau about this was not likely to have led anywhere productive for the petitioner, and certainly was not likely to have changed the court's ruling on the motion to suppress.
Secondly, Welch-Rubin testified that attorney Crone should have probed the fact that Comeau's report states that one passenger was getting into the car when he pulled up behind it, whereas his testimony was that all three occupants were outside the car as he approached. She testified that this was relevant both to the totality of circumstances involved in establishing reasonable suspicion. This court disagrees that this was such a material discrepancy that the failure to cross-examine Comeau about it constituted deficient performance. Certainly it could be used to attack Comeau's credibility or to show that his recollection of the events in question was faulty, but whether one person or three people were out of the car had little bearing on whether reasonable suspicion for a stop was present, and in the overall context of Comeau's testimony would likely have proven trivial. At least, the petitioner has failed to demonstrate to this court that it would have swayed the trial court to rule differently.
Attorney Welch-Rubin next testified that attorney Crone should have emphasized the second time Comeau told the petitioner to get back in the car when he had his feet out the door, as this illustrates that the petitioner did not have a reasonable belief that he was free to leave and establishes that the seizure occurred before the other officers arrived, as the trial court found. This evidence was plainly before the trial court, however, and there is no deficiency on Crone's part for "failing to emphasize" this fact. If the trial court did not find it important or relevant enough to warrant suppressing the evidence, attorney Crone stressing the point was unlikely to have achieved a different result.
Furthermore, both attorney Crone's written motion and the transcript of the suppression hearing indicate that Crone vigorously and ably argued the motion to suppress. He cited relevant case law in which courts found vehicle stops that yielded illicit drugs to be unconstitutional. He argued that the seizure began as soon as Comeau pulled up behind the petitioner with his lights on. He emphasized that the petitioner's story at all points checked out, and that there was little in the way of suspicious activity on which Comeau could have justified a stop. He elicited several inconsistencies between Trooper Comeau' s report and testimony, including the exact sequence of events when Comeau first pulled up behind the petitioner, and effectively emphasized the lack of obviously suspicious activity engaged in by the petitioner and the car's passengers. He questioned the officers as to why they did not have the petitioner sign a consent form to have the vehicle searched despite having them available at the scene, but several hours later had the owner of the vehicle sign such a form. He established that none of the officers read the petitioner his Miranda rights. As Crone testified at the habeas trial, credibility was a crucial factor in the suppression hearing; the officers testified that the petitioner gave his consent to search the vehicle while the petitioner denied this. The court expressly found the officer's testimony more credible and found that consent had been granted. This determination is unchallengeable in this court. See State v. Azukas, 278 Conn. 267, 277, 897 A.2d 554 (2006) (trial court's factual findings surrounding motion to suppress "revolve principally around the credibility of the witnesses who appeared before the trial court, the evaluation of which is left to the trial court's sound discretion because of its function to weigh and interpret the evidence before it").
As attorney Welch-Rubin noted, even a consensual search could have been tainted by an initially illegal stop. Ultimately, however, the court was presented with all the evidence Welch-Rubin cited as relevant yet still reached the conclusion it did. Minor variations in attorney Crone's emphasis or examination of witnesses were not likely to have altered the outcome of the trial. In short, Crone's representation was able and more than adequate; the trial court simply did not find his arguments or evidence persuasive. The petitioner has failed to show either that Crone was deficient or that he was prejudiced by Crone's representation in his pursuit of the motion to suppress.
Finally, Welch-Rubin testified that attorney Crone should have determined whether there was a videotape made of the incident, and the petitioner makes much of the value of a hypothetical videotape in his argument, but no evidence was presented that any such videotape actually exists. Welch-Rubin also testified that it would have been beneficial to review the audio or transcripts of the police dispatch call, but there was equally a dearth of evidence relating to the substance of this call or how it would have been beneficial to the petitioner. "[A]lthough it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities." Crawford v. Commissioner of Correction, 285 Conn. 585, 598-99, 940 A.2d 789 (2008). In the absence of such evidence, the petitioner cannot establish either deficient performance or prejudice.
The petitioner finally contends that attorney Crone testified that there would have been no benefit to a probable cause hearing because it would have opened up the petitioner to a possible life sentence and would have offered no practical benefit, discovery or otherwise. This is a reasonable tactical decision that must not be second-guessed by a habeas court. "[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . Furthermore, a court will not second guess the tactics and strategy chosen by trial counsel after reasonable investigation and research." (Citations omitted; internal quotation marks omitted.) Copas v. Warden, 30 Conn.App. 677, 689, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993). The petitioner has failed to demonstrate ineffective assistance on this basis.
2. Attorney Bachman
The petitioner presented very little evidence regarding attorney Bachman's representation. Although attorney Welch-Rubin testified that Bachman should have focused more on the issue of when the seizure first occurred rather than the consensual nature of the search, there is no indication that attorney Bachman's argument regarding the time of the seizure suffered within the overall context of his brief. Hampering the court's ability in this regard is the fact that Bachman's appellate brief was not submitted into evidence, providing scant basis on which to review Bachman's performance. In any event, the Appellate Court's opinion squarely addresses the issues raised by attorney Welch-Rubin, and there is no indication that Bachman was at all deficient in pursuing the appeal. Attorney Welch-Rubin also recognized that attorney Bachman would have been "limited by the existing record"; thus, he would have no opportunity to raise the issue of drug dependency.
The petitioner also asserts that Bachman was ineffective in failing to petition for certification to the Supreme Court. It is apparent, however, that the petitioner was subsequently granted permission to file a late petition for certification, which was denied by the Supreme Court. State v. Foote, supra, 273 Conn. 937. It is impossible to conceive how the petitioner expects to establish prejudice given the fact that the Supreme Court was presented with a petition for certification, permissibly filed late, and denied it, when there is no indication that the Court's decision would have been different had it been timely filed in the first place. Therefore, the petitioner has not met his burden of demonstrating ineffective assistance of counsel on this ground.
B. Drug Dependency
The petitioner's next claim is that attorney Crone was ineffective in failing to adduce evidence of the petitioner's drug dependency and have him sentenced accordingly. Both the petitioner and Sonia David testified that he was using drugs heavily around the time of his arrest. Dr. Balducci testified that, based on an interview with the petitioner and series of tests conducted several days before the final day of this habeas trial, he concluded that the petitioner was very probably drug-dependent around the time of his arrest. The petitioner also testified that he informed attorney Crone that he used drugs during their first interview, and that he "assumed" Crone knew about his dependency based on his statement and prior criminal record. Attorney Crone, however, testified that he had no indication that the petitioner was drug-dependent over the course of his representation, either from his personal observation of the petitioner or from the petitioner's file. He testified that the petitioner never told him that he was drug-dependent, although he did recall discussing the issue of drug dependency with the petitioner prior to the plea hearing, and advised the petitioner that drug dependency would be a fact that needed to be proven, and that even if they were successful in proving it at trial but he were convicted, he was better off taking the eight years offered by the state.
The petitioner's claims of inadequate investigation are logically subsumed by this claim.
The petitioner's prior history did contain several convictions for the general sale of narcotics under § 21a-277(a) rather than sale of narcotics by a non-drug-dependent person under § 21a-278(b). The petitioner had also been convicted on at least one occasion under § 21a-278(b), however, and the past convictions under § 21a-277 would not necessarily indicate to attorney Crone that the petitioner was likely to have been drug-dependent at the time of the arrest in the present case.
Turning aside the issue of whether the petitioner was drug-dependent at the time, and the additional issue of whether attorney Crone was aware of his drug dependency and deficient for not putting on evidence of it at sentencing, the petitioner cannot establish prejudice resulting from any such assumed deficiency. The petitioner admitted that it was his decision to accept the nolo contendere plea bargain, and that if he had known they were going forward with a claim of drug dependency he "maybe" would have proceeded to trial. This in itself casts doubt on the petitioner's claim of ineffective assistance, which requires that he prove by a preponderance of the evidence that he would have refused the plea bargain and instead gone to trial. Washington v. Commissioner of Correction, supra, 287 Conn. 833. More daunting for the petitioner, however, is the second requirement that he demonstrate he would have received a more favorable result had he in fact taken the case to trial. Brandy v. Commissioner of Correction, 89 Conn.App. 387, 393 n. 5, 873 A.2d 1061 (2005) ( Hill's "successful at trial" aspect requires that petitioner prove he could have obtained "a more favorable outcome than that achieved in the pleading process"). Even if the petitioner could demonstrate drug dependency and, therefore, be sentenced under § 21a-277 rather than § 21a-278, he still faced a sentence of up to thirty years incarceration and up to a two-hundred-fifty-thousand dollar fine. Thus, the eight-year sentence he pleaded to was still decidedly favorable given his potential exposure. This conclusion is buttressed by the petitioner's extensive criminal history involving narcotics, which was not likely to have engendered a lenient sentence were the petitioner convicted after trial.
Finally, there is no indication whatsoever that the petitioner would have been successful in avoiding conviction altogether had he gone to trial. As attorney Crone correctly recognized, the motion to suppress was dispositive of the case. Based on the present factual record and once the drug evidence was allowed, no reasonable jury would have found the petitioner not guilty. The petitioner has not demonstrated that he was prejudiced even if attorney Crone were deficient. Moreover, this court credits the testimony of attorney Crone that he discussed drug dependency briefly with the petitioner prior to acceptance of the plea agreement. "Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist." Leatherwood v. Commissioner of Correction, 105 Conn.App. 644, 647, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008). Because of the indisputable risks of going to trial and the comparatively favorable offer of eight years incarceration, Crone's advice to accept the plea offer was sound and this court does not find any deficiency therein.
Additionally, because the petitioner voluntarily chose to plead nolo contendere in exchange for a fixed sentence, he cannot reasonably challenge his attorney's failure to put on evidence of drug dependency, which would have little value in light of the state-recommended sentence and the inconsistent charge to which the defendant voluntarily pleaded. He has failed to demonstrate either deficient performance or prejudice in this regard.
CONCLUSION CT Page 5110
The petitioner has failed to demonstrate that his trial or appellate attorneys were ineffective and, therefore, his petition is denied. The petitioner shall submit a judgment file to the clerk of this court within thirty days.