Opinion
TSRCV134005640S
06-30-2016
Mark Henderson v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Mark Henderson, seeks habeas corpus relief from twenty years imprisonment following his guilty plea to robbery first degree as a persistent dangerous felony offender.
The court gleans from his serpentine amended petition that the petitioner asserts that Judges Keegan and Iannotti committed due process violations in refusing to allow the petitioner to continue to represent himself in his criminal case; in refusing to allow appointed defense counsel, Attorney John Drapp, to withdraw his appearance on behalf of the petitioner; in refusing to provide the petitioner, at state expense, with an investigator; and in refusing to recuse themselves from his case. He also alleges that Attorney Drapp provided ineffective assistance by declining to prepare and present a necessity defense; by failing to interview certain witnesses and evidence; by failing to remove himself as the petitioner's defense counsel; by failing to advise him of the sentence enhancement feature of being adjudged a persistent dangerous felony offender; and by failing to advise the petitioner concerning appeal. The court makes the following findings of fact and rulings of law.
The petitioner was arrested for the armed robbery of a bank. He readily admits robbing the bank. He also acknowledges a lengthy criminal history, including previous bank robberies, which qualified him for treatment as a persistent dangerous felony offender. Attorney David Egan, former Chief Public Defender for the Milford J.D., was appointed to represent the petitioner. On June 14, 2011, the petitioner requested that Attorney Egan be removed as counsel and that he be permitted to handle his own defense. At Attorney Egan's request, the court appointed Attorney Paul Carty to represent the petitioner on September 7, 2011.
The petitioner continued his quest to represent himself and moved for Judge Arnold to recuse himself. Attorney Carty urged the court to order a competency examination, and, pursuant to General Statutes § 54-56d, Judge Arnold granted that request.
On November 29, 2011, the requisite competency proceeding was held, and Judge Arnold determined that the petitioner was able to understand the nature of the charges against him, the proceedings in which he was involved, and to assist counsel in his own defense. Also, on that date, the petitioner demanded that Attorney Carty withdraw as his attorney. Judge Arnold denied that request and denied a recusal motion.
On January 12, 2012, the court granted the petitioner's request to appear for himself, and, eventually, Attorney Drapp became standby counsel. The petitioner asked for the assistance of an investigator, and Attorney Drapp engaged his customary investigator to help the petitioner. However, the petitioner refused to work with that investigator.
The petitioner, on April 30, 2012, requested new standby counsel based on a perceived conflict of interest with Attorney Drapp. Judge Keegan discerned no genuine conflict of interest and denied the motion. Jury selection was scheduled to begin on June 19, 2012. The Office of the Chief Public Defender allowed special public defender Drapp to retain a different investigator.
On June 7, 2012, Judge Keegan ruled that the petitioner forfeited his right to represent himself based on his persistent misbehavior in the courtroom. Attorney Drapp was then tasked with representing the petitioner in full. Judge Keegan filed a written memorandum on June 21, 2012, articulating her decision to revoke the petitioner's opportunity to represent himself.
In response, the petitioner moved for Attorney Drapp's disappearance and Judge Keegan's recusal. Attorney Drapp also moved to withdraw as counsel. These motions were denied, but the imminent jury trial was postponed.
Frustrated by these decisions, the petitioner engaged in a hunger strike. In the interim, Attorney Drapp thoroughly familiarized himself with the evidence in the case. Attorney Drapp suggested an emotional distress type defense, but the petitioner strongly disagreed with that strategy. Instead, he insisted that Attorney Drapp pursue the common-law defense of necessity based on the petitioner's claim that he had to rob a bank to obtain sufficient funds to relocate his mother. He perceived that his past activities as a government informant placed his and her life in danger should the targets of his assistance seek vengeance.
Attorney Drapp tried, in vain, to convince the petitioner that this doctrine was not a legitimate defense to the armed robbery he conceded he perpetrated. The petitioner obstinately refused to recognize this reality.
The defense of necessity has only been validated in Connecticut with respect to justifying an escape from custody. It is highly doubtful that this common-law defense extends to all crimes. For example, necessity is unavailable as a defense to illegal possession of a weapon, State v. Ramos, 271 Conn. 785, 803, 860 A.2d 249 (2004). No matter how sincere a perpetrator's subjective belief as to the need to commit crime to secure safety, the necessity defense only obtains when viewed by an objective evaluator, State v. Varszegi, 236 Conn. 266, 282-84, 673 A.2d 90 (1996).
More to the point, even if the necessity defense applies to excuse otherwise criminal behavior besides escape from confinement, the putative facts must satisfy the five conditions known as the Lovercamp criteria, Id., derived from People v. Lovercamp, 43 Cal.App.3d 823, 831-32, 118 Cal.Rptr. 110 (1994). Assuming, arguendo, that the circumstances of danger proposed by the petitioner existed, these assumed facts fail to pass muster.
Under Lovercamp, supra, 1. the actor must face a specific threat of death or serious injury in the immediate future. The petitioner proffered no such particularized and imminent threat.
2. The actor must show that any attempt to evade the threat by recourse to lawful means of assistance was futile. Although the petitioner avows that federal authorities wrongfully denied witness protection for himself and his mother, he made no attempt to seek safety from other law enforcement agencies through other means.
3. Court-ordered assistance was unavailable.
4. The actor cannot have employed force or violence toward innocent parties to achieve the goal. Here, the petitioner freely admits that he robbed a bank while carrying operable firearms and intentionally caused innocent bank employees to fear him so as to procure their cooperation.
5. The actor must immediately report his or her actions to proper authorities once safety is achieved. The petitioner's flight from the scene ended when he was rescued from the sea rather than by any voluntary reporting.
Nor would the petitioner's factual assertions justify the statutory defense of duress as set forth in General Statutes § 53a-14. In order to take advantage of that defense, the petitioner must prove by a preponderance of the evidence, that he " engaged in the proscribed conduct because . . . coerced by the use or threatened imminent use of physical force upon . . . a third person, which force or threatened force a person of reasonable firmness in [the] situation would have been unable to resist." Again, no one demanded that the petitioner rob a bank under threat of an imminent use of force against him or his mother.
The lack of financial wherewithal to extricate oneself from a vague and generalized fear of possible harm in the unspecified future simply provides no excuse to commit bank robbery under our system of criminal justice. As ardently as the petitioner may wish it were otherwise, Attorney Drapp's refusal to pursue such a fanciful defense was ethically and professionally mandated.
The petitioner's criminal trial was rescheduled to begin on April 30, 2013. A second competency examination was ordered, and the hearing resulting from that examination took place on April 12, 2013. Judge Iannotti found the petitioner competent to stand trial.
On April 29, 2013, the petitioner agreed to plead guilty to robbery first degree as a persistent dangerous felony offender in exchange for the prosecutor's nolle of other charges and a recommended ceiling of twenty-five years to serve and a floor of the mandatory minimum ten-year sentence. On July 16, 2013, Judge Iannotti imposed the twenty-year term noted above.
The petitioner's claims that pertain to alleged improprieties by the judicial officers or Attorney Drapp that are unrelated to the validity of his guilty plea on April 29, 2013, were forfeited by virtue of that plea of guilty.
The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97, 503 A.2d 136; State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. Reed v. Reincke, 155 Conn. 591, 597, 236 A.2d 909; State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984), McKnight v. Commissioner, 35 Conn.App. 762, 764, 646 A.2d 305 (1994); cert. denied, 231 Conn. 936, 650 A.2d 173 (1994); State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407 (1991). This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971), Reed v. Reincke, supra, 601; Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979).
A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea. Our Supreme Court has addressed this issue, also. In Dukes v. Warden, supra, 343-44, the Court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of preplea, constitutional deficiencies. See also McKnight v. Commissioner, supra .
Several federal court cases have arrived at the same conclusions. In Siers v. Ryan, 773 F.2d 37 (CA.3, 1985), cert. denied, 490 U.S. 1025, 109 S.Ct. 1758, 104 L.Ed.2d 194, a federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel. The petitioner later pled guilty to a robbery charge. The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness. Id., p. 42.
In U.S. v. Greene, 722 F.Supp. 1221 (E.D.Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity. At p. 1222, the U.S. District Court held the petitioner's guilty plea " bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered."
In U.S. v. Winfield, 960 F.2d 970 (CA.11, 1992), a petitioner tried to attack his conviction, following a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations. At p. 974, fn.2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.
In Wilson v. U.S., 962 F.2d 996 (CA.11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain pre-plea issues. The U.S. District Court refused to conduct a habeas hearing and dismissed the petition. The U.S. Court of Appeals affirmed the District Court stating, " the court did not err in dismissing [the petitioner's] claim, as it involved pre-plea issues, without conducting an evidentiary hearing." Id., at 997.
In Fields v. Maryland, 956 F.2d 1290 (CA.4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea. He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings. The U.S. District Court dismissed the petition. The U.S. Court of Appeals upheld the dismissal indicating, " [i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation." Id., at 1294. The Court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and was unrelated to it, the merits of the petitioner's claims need not be reached. Id., at 1296.
Finally, in Taylor v. Whitley, 933 F.2d 325 (CA.5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery, and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense. The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition. The Court of Appeals stated that a " voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later judicial decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant's counsel were incorrect." Id., at 327.
In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim. The Court of Appeals rejected this argument stating, " the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Id., at 329 (emphasis added). The Court went on to indicate that the absence of advice regarding the double jeopardy issue " does not affect the voluntary and intelligent nature of his pleas." Id., at 331.
The Taylor case, supra, is significant in that it points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea. What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielded by entering the plea, such as the right to confront and cross examine witnesses. There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of pre-plea defects.
The federal cases cited above are consistent with and bolster the holding of Dukes v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.
The court notes that the petitioner in Dukes v. Warden, supra, like the petitioner in the present case, contended that his attorney's supposed conflict of interest invalidated his later guilty plea, Id., 343. Unless the conflict rendered the plea itself involuntary or unknowing, a claim of conflict of interest by one's attorney is waived by virtue of a guilty plea and cannot be raised by way of habeas corpus attack, Id.
Indeed, in recognition of the legal principle that a later guilty plea washes away nonjurisdictional, pre-plea errors, our legislature enacted General Statutes § 54-94a, which statute creates a limited exception to this general rule. Under § 54-94a, one may enter a conditional plea of nolo contendere that preserves for appellate review certain types of issues. " By enacting § 54-94a, the 'legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere, '" State v. Turner, 267 Conn. 414, 424-25, 838 A.2d 947 (2004), (emphasis added). The appellate issues that retain vitality under § 54-94a are restricted to dispositive motions to dismiss or suppress.
Consequently, any alleged judicial errors regarding self-representation, recusal, access to investigators, and removal of appointed counsel were waived by the entry of the petitioner's guilty plea on April 29, 2013. Similarly, any claims of ineffective assistance by Attorney Drapp concerning lack of preparation, refusal to interview certain witnesses or to obtain certain documents, conflicts of interest, and the refusal to pursue a necessity defense were also forfeited by that plea.
Therefore, the only remaining ineffectiveness claims upon which habeas corpus relief can be based center on Attorney Drapp's advice and representation surrounding the petitioner's guilty plea. The petitioner has never alleged that Attorney Drapp failed to apprise him of the elements of robbery first degree and being a persistent dangerous felony offender. Nor has he averred that Attorney Drapp misinformed him as to the trial rights he gave up by pleading guilty nor as to the terms of the plea agreement. Also, a factual basis for the crime and status was conceded and obvious.
The petitioner also makes no claim that Judge lannotti's plea canvass impermissibly departed from the inquiry required under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that of Practice Book § § 39-19 and 39-20. Nor does he contend that he was misinformed as to the maximum and mandatory minimum imposable sentence by the judge or Attorney Drapp. Except for adverse immigration consequences, a trial court need not inform a criminal defendant of all possible ramifications which may flow from a plea of guilty, Ghant v. Commissioner, 255 Conn. 1, 14, 761 A.2d 740 (2000).
The particular deficiencies that the petitioner does assert are that his hunger strikes so affected his thought processes that he was unable to intelligently, knowingly, and voluntarily decide to plead guilty and forgo a jury trial. He further avers that this debilitation caused him to succumb to the coercion exercised by Attorney Drapp. The court finds this allegation unproven.
As mentioned earlier, the court ordered a second competency evaluation of the petitioner shortly before he entered his guilty plea. On April 12, 2013, Dr. Joseph Chien, a fellow in psychiatry at Yale University, testified that the petitioner understood the nature and attendant sentence for each crime of which he was accused; that he accurately recounted the roles of the various courtroom participants; and had a comprehensive knowledge of the legal proceedings in which he was enmeshed. Dr. Chien further opined that the petitioner was able to discuss possible plea dispositions rationally and even expressed a willingness to plead guilty in exchange for a ten-year prison sentence. Dr. Chien also felt, however, that the petitioner's deep distrust of attorneys, including Attorney Drapp, disabled him from meaningfully assisting counsel. The doctor acknowledged that the question of the petitioner's capacity to work with an attorney was a " close call." After the hearing, Judge Iannotti ruled that the petitioner was legally competent to stand trial.
Dr. Chien had reviewed the petitioner's medical records kept by the Department of Corrections which review encompassed the periods of hunger strike. The doctor related that, during these events, the petitioner continued to drink water and protein drinks and had only lost twenty pounds over his four-month abstinence.
Attorney Drapp testified at the habeas hearing. He recalled that the petitioner, if convicted after trial, faced a maximum, effective sentence equivalent to life imprisonment. The petitioner concurred that he was aware of this exposure. Attorney Drapp stated that he strongly recommended that the petitioner accept the state's offer, however, he never coerced or badgered the petitioner into changing his plea. The court finds Attorney Drapp's testimony credible on this point.
Dr. James Elderkin, a specialist in internal medicine at a facility that treats inmates at the University of Connecticut Health Center, monitored the petitioner's medical condition during the two hunger strikes and for some time after his guilty plea proceeding. In his assessment, the petitioner's hunger strike created no medical condition that had impinged on his ability to participate in that proceeding. He observed that the petitioner exhibited no altered mental state impairing his comprehension skills. Had he seen evidence of such impairment, Dr. Elderkin would have intervened by prohibiting the petitioner's trip to court.
Neither party introduced a transcript of the guilty plea hearing of April 29, 2013. However, Judge Iannotti rendered findings that were recorded as docket entries by the clerk. Judge Iannotti decided that the petitioner's guilty pleas " were . . . given freely and knowingly with advice of counsel." In the absence of credible evidence to the contrary, this court determines that the petitioner's restrictive diet did not diminish his ability to comprehend the terms of the plea agreement; the trial rights that he was yielding by pleading guilty; the elements and maximum and minimum mandatory sentences of robbery first degree as a persistent dangerous felony offender; and the advice Attorney Drapp gave him. The petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that his guilty plea was unknowing, involuntary, or the subject of coercion by Attorney Drapp.
His assertion that he was " forced" to plead guilty appears to be a metaphorical use of that word rather than a literal or legal one. Unquestionably, the petitioner faced unenviable circumstances and limited options. The evidence against him overwhelmingly and undisputedly demonstrated that he robbed bank employees in excess of $3,000 while armed with an operable firearm. His terrible and lengthy history of criminal convictions and prison sentences made the prospect of spending the remainder of his life behind bars quite likely if convicted, once again, for bank robbery. The pressure to accept the state's very reasonable proposal created by the weight of the above realities did not invalidate his guilty plea nor render Attorney Drapp's advice to do so deficient.
The petitioner also argues that his hearing impairment ought to justify overturning of his conviction. The court also rejects this contention. A review of the transcripts of the petitioner's many court appearances belies his claim. He exhibited little difficulty understanding the dialogue as it occurred. The doctors that interacted with him never found his diminished hearing to be so manifest as to require extended comment. Attorney Drapp observed no impediments in the petitioner's ability to understand and respond to oral communications. Although the petitioner complained that his hearing aid malfunctioned occasionally at the habeas hearing, the court discerned no instances in which the petitioner's hearing deficit significantly impeded his ability to comprehend what was being discussed in court. The court is very confident that the petitioner's hearing problem played no role in his voluntary and knowing decision to plead guilty.
The final issue the court must address concerns the petitioner's claim that Attorney Drapp never disclosed to him that he could appeal from the conviction that resulted from his guilty plea. However, unless the petitioner expressly inquired about taking an appeal or unless Attorney Drapp had reason to believe that a rational defendant in the petitioner's situation would want to appeal, Attorney Drapp had no " constitutionally-imposed duty to consult with the [petitioner] about an appeal, " Ghant v. Commissioner, supra, 9-10. Neither predicate circumstance existed in the present case. Therefore, the petitioner cannot prevail as to this specification of ineffective assistance.
For those reasons, the amended petition for habeas corpus relief is denied.