Opinion
No. CV01-0805097
February 18, 2004
MEMORANDUM OF DECISION
The petitioner, George Frank, alleges in his petition for a Writ of Habeas Corpus initially filed on January 26, 2001 and amended on November 14, 2003, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently that he should be allowed to withdraw his plea of guilty. There were two attorneys who entered appearances on behalf of the petitioner in this case. The first was Attorney John Watson, a Public Defender; and the second was Attorney Todd Fernow, the head of the University of Connecticut law clinic. The petitioner has alleged that each of these attorneys was ineffective. For the reasons set forth more fully below, this court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that both of his trial defense counsel failed to properly conduct a pretrial investigation, failed to adequately communicate with the petitioner about the plea bargaining procedure and exerted undue pressure upon the petitioner to accept the plea agreement. The petitioner argues that as a result, the trial defense counsel did not perform his duties to his client in a professional manner such that his guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
This matter came on for trial before this Court on February 10, 2004. The petitioner, both of his trial defense counsel, Attorneys John Watson and Todd Fernow, as well as the petitioner's mother, Ms Deborah Legette all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal case in the Judicial District of Hartford, under Docket Number CR98-520758 in which he was charged, inter alia, with murder in the first degree in violation of CGS § 53a-54(a).
2. On January 19, 2000, pursuant to a plea agreement, the petitioner entered a plea of guilty under the Alford doctrine, to Manslaughter in the first degree with a firearm in violation of CGS § 53a-55a, conspiracy to commit assault in the first degree in violation of CGS §§ 53a-48 and 59, and position of a weapon in a motor vehicle in violation of CGS § 53a-29-38. The Court, Clifford, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered a finding of guilty as to the count of manslaughter.
In exchange for his plea of guilty to a substituted charge of manslaughter in the first degree with a firearm in violation of CGS § 53a-55a, the petitioner would receive an agreed-upon sentence of twenty-five (25) years to serve.
North Carolina v. Alford, 400 U.S. 25 (1970).
3. The petitioner came back before the Court for sentencing on February 25, 2000. At that time, in accordance with the plea agreement the Court, Clifford, J., proceeded to sentence the petitioner to the agreed-upon sentence of twenty-five years to serve.
4. The following facts were recited by the prosecutor at the time of the guilty plea and are found to be provable in connection with the December 20, 1997 incident.
a. On December 20, 1997, the petitioner conspired with Michael Spike and Torian Williams-Bey to cause serious physical injury to the victim, Malik Shannon. The petitioner came into possession of a stolen motor vehicle and armed himself and his co-conspirators with revolvers. Mr. Williams-Bey was in possession of an assault rifle. While being driven in the van, the trio sighted the victim at a pizza shop on Blue Hills Avenue in the city of Hartford. They pulled on to a side street, waited for the victim to turn the corner and then all three exited the van and commenced firing at the victim. The petitioner fired the first shot and struck the victim in the pelvis. Williams-Bey fired the fatal shot from the assault rifle. The victim died as a result of the injuries inflicted upon him from these shootings.
5. All three participants in this shooting were subsequently arrested and charged with murder.
6. Defendant Spike was tried first, found guilty and received a sentence of fifty years.
7. Defendant Williams-Bey was the next to be tried, convicted, and received a thirty-five year sentence.
8. The petitioner's counsel were finally able to get the state to agree to reduce the charge to manslaughter and a twenty-five year sentence.
9. The petitioner finally agreed to this disposition and the matter was resolved.
10. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary plea of guilty to the charge of manslaughter in violation of CGS § 53a-55a.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial." Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his pleas of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty plea is valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with serious charges. He was nineteen years old when sentence was imposed. Had he gone to trial on this matter and been convicted, he would have faced a potentially long period of incarceration, likely for the remainder of his natural life. His total "exposure" was, therefore, high.
At the time he entered his guilty plea in January 2000, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 NW 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a favorable sentence.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper counsel may well be providing ineffective representation.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court seeking to set aside his plea of guilty on the ground that his attorneys did an inadequate job of pretrial preparation and coerced him into accepting the plea agreement. However, the evidence presented to this court clearly shows that the trial defense counsel did do an adequate job of preparing for trial. Moreover, while the acceptance of this plea bargain may have been forcefully argued by the counsel, it is clear that there was no coercion involved and that the entreaties to accept this agreement were for the long-term benefit of the petitioner. There has been nothing presented to this court that would permit a finding that the plea of guilty was induced by any sort of substandard performance of the trial defense counsel. Indeed, the exact opposite is true. Both of the petitioner's attorneys did an outstanding job for a young man who had made a tragic choice in his life.
Even the petitioner's mother asked him to accept the plea agreement. Given the strength of the government's case, the known results of his co-conspirator's trials, it is clear that this petitioner, even though equally culpable, received the lowest sentence of the trio. In saying this, the Court is ever mindful that a sentence of twenty-five years incarceration is indeed a lengthy sentence. The petitioner will spend a significant portion of his life deprived of freedom. As astutely noted by Judge Clifford at sentencing. "You know, Mr. Frank, you will be home with your family. You're gonna (sic) get a twenty-five year sentence, if you did every single day of that you get credit and you've been in since you've been age sixteen you'll be out, if you did every day of it, age forty-one. That may sound old to you, but from where I'm sitting, that sounds pretty young, so that's something the victim's family's never going to have. `Cause (sic) they're never going to see their son or loved one again." See petitioner's Exhibit 1, transcript of February 25, 2000, page 11.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from tidal counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an. attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances to counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of die claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962); D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61. Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
Additionally, this Court is convinced that had the petitioner elected to plead not guilty and take his case to trial, it is extremely likely that he would have been found guilty of the greater charge of murder. It is also extremely likely that he would then have received a sentence to incarceration much longer than the twenty-five years he did receive. Accordingly, there is no prejudice for having accepted the plea bargain.
Here, the petitioner has been found guilty through his own plea. He enjoyed the representation of two competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. Here, there simply is no basis upon which to set aside the guilty plea, and even had there been a basis to do so, the available evidence pointing to the petitioner's guilt is strong. In light of all of this, the petitioner has failed to meet his burden of proving his entitlement to a writ of habeas corpus.
The Petition for a Writ of Habeas Corpus is denied.
S.T Fuger, Jr., Judge