Opinion
CV144006168
04-13-2017
Jonathan King v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Mulcahy, Judge Trial Referee.
The petitioner initiated this proceeding by way of a pro se petition for a writ of habeas corpus, filed on or about April 23, 2014, in which he challenges his convictions after guilty pleas. After the assignment of counsel, the petition was amended on July 15, 2016.
The petitioner pleaded guilty in several cases in the judicial districts of Hartford and Tolland. In the judicial district of Hartford, the petitioner pleaded guilty on November 2, 2012, to two counts of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a)(4) and one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). The court, (Alexander, J.), sentenced the petitioner to a total effective sentence of eleven years to serve, followed by four years of special parole. In the judicial district of Tolland, the petitioner pleaded guilty on January 4, 2013, to two counts of conspiracy to commit robbery in the second degree in violation of General Statutes § § 53a-48 and 53a-135(a)(2). The court, (Solomon, J.), sentenced the petitioner to a total effective sentence of ten years to serve. All sentences in both jurisdictions were ordered to run concurrently. The petitioner is in the custody of the commissioner of correction pursuant to these total effective sentences.
I.
The charges brought against the petitioner resulted from his participation in five armed robberies occurring from October 12, 2011 through October 19, 2011. The amended petition alleges charges brought in the Hartford Judicial District under three docket numbers: CR 12-0237893, armed robbery of a retail establishment in Manchester on October 12, 2011; CR 12-0261927, armed robbery of the Corner Store in Wethersfield on October 13, 2011; and CR 11-0237314, armed robbery of a 7-11 store in South Windsor on October 19, 2011. The petitioner was also charged in the Tolland Judicial District with robberies committed during the same time frame: CR 11-0100181, armed robbery of the People's Choice Restaurant in Vernon on October 17, 2011; and CR 11-0100180, armed robbery of a Subway in Vernon on October 19, 2011.
All of the above armed robberies were committed with a co-accused: Ronnel Hall. With respect to the armed robbery of the 7-11 store in South Windsor on October 19, 2011 (CR 11-0237314), the petitioner entered the store with a gun, demanded money, left with approximately $250, of which $100 was given to Hall who was the getaway driver. On all of the other armed robberies, the petitioner was the getaway driver and shared in the proceeds.
The petitioner and Hall were arrested in East Hartford on October 24, 2011. In view of the sequence of these armed robberies, the East Hartford and South Windsor police departments, having " pooled" their resources, were conducting surveillance in the area of the South Green Package Store on Main Street in East Hartford. In the late evening hours, the vehicle the police were watching approached the package store, Hall got out and went inside, and robbed a patron of her pocketbook. After a foot chase, Hall was apprehended with a gun. The petitioner was taken into custody a short distance from the scene, after attempting to flee in the car.
On the Hartford Judicial District cases, the petitioner was ultimately charged, and entered pleas of guilty, as follows: CR 12-0237893, Manchester establishment (October 12, 2011)--conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a), a Class B felony; CR 12-0261927, Corner Store in Wethersfield (October 13, 2011)--conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a), a Class B felony; and CR 11-0237314, 7-11 store in South Windsor (October 19, 2011)--robbery in the first degree in violation of General Statutes § 53a-134(a)(4), a Class B felony. The petitioner's maximum exposure on the pleas in the Hartford cases was sixty years.
On the Tolland Judicial District cases, the petitioner was ultimately charged, and entered pleas of guilty, as follows: CR 11-0100181, People's Choice Pizza in Vernon (October 17, 2011)--conspiracy to commit robbery in the second degree in violation of General Statutes § § 53a-48 and 53a-135(a)(2) (substitute information), a Class C felony; and CR 11-0100181, Subway in Vernon (October 19, 2011)--conspiracy to commit robbery in the second degree in violation of General Statutes § § 53a-48 and 53a-135(a)(2) (substitute information), a Class C felony. The petitioner's maximum exposure on the two pleas in the Tolland cases was twenty years.
The petitioner's maximum exposure on all five pleas (Hartford and Tolland) was eighty years. The total effective sentence on all five pleas was eleven years to serve, followed by four years special parole, consistent with the agreed recommendation negotiated by the petitioner's attorney and the State's Attorney's Offices in their respective Judicial Districts.
II.
The amended petition alleges claims in two counts: (1) ineffective assistance of trial counsel for failure to move to suppress the petitioner's statement, and (2) ineffective assistance of trial counsel for failure to investigate and raise an affirmative defense. Thus, the petitioner only claims ineffective assistance by trial counsel, albeit premised upon two distinct deficiencies in representation. The respondent's return denies that the petitioner received ineffective assistance of counsel.
The parties appeared before this court on February 16, 2017, for a trial on the merits. The court received testimony from Attorney Kevin Ferry, the petitioner's trial counsel; Attorney Dean Popkin, the petitioner's expert; Assistant State's Attorney Richard Rubino; State's Attorney Matthew Gedansky; and the petitioner. Additional evidence included the plea and sentencing transcripts from the underlying criminal proceedings, a copy of the statement the petitioner gave to the East Hartford Police Department dated October 25, 2011, and copies of East Hartford Police Department case property maintenance records, referring to the firearm seized as a " Facsimile Handgun." The parties presented oral summations.
III.
At the habeas trial, Attorney Kevin Ferry testified that he represented the petitioner as private counsel at all relevant times. He was admitted to the bar in 1991; criminal law comprised fifteen to thirty percent of his practice. In the course of his practice, the attorney had handled robbery cases. His firm consisted of two attorneys, the other being Attorney Monique Foley. Their representation of the petitioner on all files (Hartford and Tolland) commenced shortly after his arrest and continued through final resolution of the cases by guilty pleas and the imposition of concurrent sentences. The attorney testified that neither Hartford nor Tolland would agree to a transfer and/or consolation of the cases in a single Judicial District; thus, each set of cases proceeded to conclusion in its respective District.
The attorney testified that he (and/or Attorney Foley) appeared with the petitioner at his court appearances in the two Judicial Districts. The attorney met with the petitioner several times and discussed the cases and pending charges. The statement the petitioner had given to the East Hartford Police on October 25, 2011 (Exhibit #4) was obtained by the attorney through the pretrial discovery. The attorney testified he had " a lot" of discussions with the petitioner about the statement, its content, and about his involvement in the robberies. These discussions also included the petitioner's claimed " inconsistencies" in the statement and the nature of the firearm (starter pistol) as described in the police documentation. With regard to any inconsistencies in the statement, there were " a lot" of conversations wherein in it was explained that not much could be done about such inconsistencies short of proceeding to trial and his testifying. The attorney does not recall specifically discussing the filing of a motion to suppress the statement. The focus, from the beginning, was to negotiate " a deal" embracing all of the cases in both locations, and to do so as soon as possible.
The evidence reveals that Attorney Ferry was thoroughly familiar with the elements of the crimes charged and, most particularly, the affirmative defense contained in the robbery in the first degree statute. He was fully aware that the weapon used was a starter pistol, there was no dispute about its inoperable state, and he repeatedly discussed that with the State's Attorney. The lawyer explained to the petitioner that the State in the Hartford cases took the position that the affirmative defense could be raised at trial, if the petitioner wished a trial, rather than through negotiated guilty pleas with an agreed total effective sentence. The attorney testified, credibly, that all of the options were explained to the petitioner who made it clear he " did not want to go the route of a trial."
In negotiating pleas encompassing cases in both Districts, Attorney Ferry furnished extensive information regarding the petitioner's background, his relatively limited criminal history, supporting letters, sports awards, community and charitable service, etc. As stated, in Hartford, ultimately, the negotiated plea was concurrent sentences of eleven years (followed by special parole); in Tolland, concurrent sentences of ten years; the sentences in each District to be concurrent with the other.
Since the offer of a total effective eleven-year sentence to serve was available only prior to commencement of trial, Attorney Ferry explained to petitioner his options: plead guilty to the charges and receive a total effective sentence of eleven years (plus four years special parole), or persist in the not guilty pleas, go to trial, and run the risk of receiving a substantially greater total sentence. The attorney testified, credibly, that he did not urge the petitioner to plead guilty, but rather, told the petitioner it was his decision. Attorney Ferry testified that if the petitioner rejected the plea offer and wished to go trial, he was prepared to try the cases at both locations.
The petitioner testified he was initially represented by, and met with, Attorney Peter Billings. Very shortly thereafter, Mr. Billings left the firm and Attorney Ferry assumed the role as the petitioner's lawyer. Petitioner stated he was arrested October 24, 2011. In Hartford, he stated he originally faced charges of robbery in the first degree, conspiracy to commit robbery in the first degree, assault on an elderly person, and conspiracy to commit kidnapping. He testified that he was told by his lawyers that if he was convicted of all charges, he faced a maximum exposure in excess of one hundred years. The authorities and the attorneys knew that the firearm recovered was a starter pistol. Attorney Ferry discussed this with him and said " it didn't matter" as they would have to go to trial to assert the affirmative defense.
Concerning the affirmative defense, the petitioner testified he never talked to the attorney about having the firearm tested to determine if it was operable; it was known by the authorities to be inoperable. The petitioner maintains that if he knew of, and understood, the affirmative defense he would have elected to go to trial even though if convicted after trial, his maximum exposure would have far exceeded an agreed-upon eleven years. He stated his thinking was that these cases would be his first felony convictions and he felt like they " weren't going to give me much time anyway."
The petitioner acknowledged that following his arrest he gave the police a statement detailing the specifics of each armed robbery. He testified that the first time he saw the statement was when Attorney Billing visited him after the arrest. It was then, according to the petitioner, that he noticed " inconsistencies" between what he told the police and what is in the typed signed statement. He testified he was " out of it" because when taken into custody near the South Green Package Store, his head was banged against the hood when he resisted entering the police vehicle since " he had not been informed of his rights and the situation had not been explained." The petitioner stated he had a head wound, was bleeding, was given a bandage, and did not seek medical attention. At the police station, he went to intake, fell asleep, and was waking up periodically.
According to the petitioner, the officer typed the statement as he furnished information concerning the robberies. The officer would ask questions and then type. The petitioner now claims that at some point he asked for a lawyer but was ignored; he claims to have repeatedly informed the officers that he was only the driver.
The petitioner admits and acknowledges that he signed and initialed the statement (on all three pages), but says he did so without reading it. When asked why he would do so, he responded that he did not believe an officer would falsify what he was told--" when I was handed the statement, I signed it believing it was what I said." He stated that when he told Attorney Ferry about the claimed inconsistencies, he was told " it didn't matter." According to the petitioner, he was never informed about the filing of a motion to suppress. He now maintains that if he was so informed, he would not have accepted the plea agreement and entered the guilty pleas.
The petitioner called Attorney Dean Popkin, a practicing Bridgeport attorney, as an expert to testify to the standard of care for criminal defense lawyers representing defendants in various phases of criminal proceedings, including plea negotiations, pretrial motions and preparation, and trial. The attorney was admitted in 1993 and practiced in an office that engaged in considerable representation of criminal defendants. In the last fifteen years, Mr. Popkin practiced almost exclusively criminal law. The parties stipulated to the attorney's qualifications.
The attorney testified that in preparation for his testimony he reviewed a number of police reports in the King case, warrants, transcripts, and the statements of petitioner and the co-accused. He also examined the documentation relating to the description of the gun allegedly used in the commission of the robberies. Attorney Popkin testified as to his familiarity with General Statutes § 53a-134(a), the robbery in the first degree statute, and the affirmative defense. Based on his review of the documentation, the petitioner would have been entitled to assert the defense to the robbery in the first degree charges at trial; that is, to prove at trial, by a preponderance of evidence, that the firearm was not a weapon from which a shot could be discharged.
In such regard, General Statutes § 53a-134(a)(4) also provides: " Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree . . ." which is a Class C felony.
Attorney Popkin testified that it was his opinion that it was the defense lawyer's responsibility to advise the client of the statutory defense, and of its availability, prior to plea. This was necessary in order that an informed decision could be made on whether to accept the plea agreement and enter pleas of guilty. Such advice would assure a knowing and informed decision regarding pleading guilty, in light of the agreement for a specified sentence, or going to trial and asserting the defense.
As stated, the witness reviewed the statement the petitioner gave to the East Hartford police dated October 25, 2011. In his experience, Attorney Popkin has encountered situations where the client has claimed that a statement does not accurately set forth or reflect what was told to the police. In such situations, it would be appropriate for the defense attorney to weigh filing a motion to suppress. Further, it would be appropriate for defense counsel to discuss with the client the weight the statement would have at trial if the suppression motion proved unsuccessful. The client should be kept informed during the decision process regarding what evidence could be presented relative to the motion, and what legal arguments might be viable; failure of counsel to do so would leave the client unable to make a fair, reasoned decision.
Attorney Popkin testified that in the criminal practice, it is not unusual for the defense attorney to plea bargain for a lesser charge, or an acceptable sentence on the original charge, even though the client may feel he did not actually commit the crime charged. Thus, the witness could envision a situation where it would be advisable for a client to plead guilty to robbery in the first degree charges on a negotiated total effective sentence rather than go to trial on a series of robbery in the second degree charges and run the risk of receiving a substantially greater total sentence after trial. As the attorney acknowledged, " you could win the battle, but lose the war." The attorney stated that he has had clients who have disagreed with his explanation of the applicable law based on having conferred with other inmates while awaiting trial.
The petitioner testified that discussions with other incarcerated persons contributed to his dissatisfaction with the disposition in this case.
Attorney Popkin testified that in reading the warrants he became aware the weapon seized by the police on October 24, 2011, was mentioned in two separate paragraphs as a starter pistol. The witness, as stated, also read the petitioner's statement; the attorney acknowledged that to succeed on a motion to suppress there must be a legal basis and, further, even if the statement was partly incorrect, there may well have been other corroborating evidence of the petitioner's participation in the robberies. Therefore, Mr. Ferry had to assess the petitioner's credibility regarding the claimed inconsistencies. The witness does not know if Mr. Ferry and the petitioner discussed the statement, or if they did, to what extent. The witness did not notice that the petitioner signed and initialed the statement seven times. With reference to both the statement and the starter pistol defense, if Mr. Ferry did not discuss these issues with petitioner, prior to the entry of his guilty pleas, there could not have been a knowing and informed decision on whether to forgo a trial.
The witness stated that in the abstract it is better to plead to robbery in the second degree than to robbery in the first degree since the former is a class C felony a ten-year maximum. That should be discussed with the client before entry of any plea to the class B felony. An accused's request for a lawyer during the police interview and failure to provide counsel, followed by continuation of the interview, would be a ground for suppression. Other potential grounds might stem from, depending on the particular circumstances, an untreated head injury and/or extreme fatigue, all tending to place in question the reliability of the statement.
The petitioner testified that he never brought to Attorney Ferry's attention any information about his now claimed condition while giving the statement, his claimed request for a lawyer, or a continuation of the interview after requesting a lawyer. When asked why he did not so inform his attorney, his response was, " it never got that far." The statement given to the police, signed and initialed on each page, recites that the petitioner was giving the statement of his " own free will and accord without fear, threat, or promise." The statement recites, on each page, that the petitioner had " read . . . the above statement, and it is true and correct to the best of my knowledge."
Upon the petitioner's resting, the respondent called as a witness Assistant State's Attorney Richard Rubino, Hartford Judicial District. He testified the petitioner was charged with multiple robberies in the first degree. He had plea bargaining discussions with Attorney Ferry. He was working on the Hartford cases in conjunction with the State's Attorney in the Tolland Judicial District. Such coordination is not uncommon where, as here, there was an overlapping of a series of related crimes which occurred over a short period of time. The ultimate disposition of the Hartford cases was two guilty pleas to conspiracy to commit robbery in the first degree and one guilty plea to robbery in the first degree (as a principle). The agreement was eleven years to serve, followed by four years special parole. Mr. Rubino's pretrial offer was the result of plea bargaining with Attorney Ferry.
If the petitioner had wished to go to trial, he would have done so on all pending charges and run the risk, if convicted, of a far greater sentence. Because there were multiple robberies, the State was not willing in these cases to come off the robbery in the first degree charge. If the petitioner went to trial, not only would the State have proceeded on all pending charges, all pending Hartford cases would have been consolidated for trial. If the cases went to trial, the petitioner, then at that time, under the statute, could have raised the affirmative defense regarding the firearm. The Assistant State's Attorney had no hesitancy about taking the cases to trial; he felt there was ample evidence to sustain convictions. If convicted after trial on either the robbery in the first degree or robbery in the second degree charges, Class B or C felonies, the petitioner, on the multiple charges, faced in the State's view, a total effective sentence substantially exceeding eleven years.
The Assistant State's Attorney did not recall whether there was any discussion of a motion to suppress. This was a situation involving multiple robberies, with what was represented by the perpetrators to be a gun, and the State's plea offer was in lieu of petitioner's not proceeding further to trial.
The Tolland State's Attorney, Matthew Gadansky, testified that there were two pending files in his Judicial District involving the petitioner's participation in this series of robberies. As in Hartford, there were multiple charges in each of the two Tolland cases. As often happens when there are files pending against a defendant in more than one jurisdiction, plea negotiations focus on resolving all files, in all Districts, where feasible. Accordingly, " three-way" negotiations took place, and were coordinated, between the petitioner's attorneys, Mr. Ferry and Ms. Foley, and the two State's Attorney's offices. The purpose was to resolve the cases " globally."
In regard to time to be served, the State, in both Districts, ultimately arrived at a total effective sentence of eleven years, regardless of how that total was imposed--through consecutive or concurrent sentences. In Tolland, Mr. Gedansky, as the charging authority, charged petitioner, in each of the two files, under the robbery in the second degree (Conspiracy) provision. Mr Gedansky could not specifically recall knowing that the recovered firearm was inoperable, but if it was, he would proceed under the Robbery Second section. In Tolland, the State took into consideration, as mitigating circumstances, the petitioner's good family background, charitable work he had done in the past, his limited criminal record, and the fact that his role in the robberies was less than that of his co-conspirator. Mr. Gedansky has had cases where defendants have had the affirmative defense under the robbery in the first degree section and elected to waive that defense in advance of trial, and plead guilty based on a negotiated agreement as to the sentence.
IV.
To prevail on his claims, the petitioner must " . . . fulfill the two-pronged test for ineffective assistance of counsel . . . That test, as laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and modified for guilty plea cases in Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), requires petitioners to establish that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." Crawford v. Commissioner of Correction, 294 Conn. 165, 189-90, 982 A.2d 620 (2009).
" 'To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist . . . A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time . . .
" To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome.' (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721-22, 789 A.2d 1046 (2002). 'Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.' (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007)." Williams v. Commissioner of Correction, 120 Conn.App. 412, 416-17, 991 A.2d 705 (" a guilty plea is an admission of all the elements of a formal criminal charge" [internal quotation marks omitted]), cert. denied, 297 Conn. 915, 996 A.2d 279 (2010).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained that " [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citations omitted; internal quotation marks omitted.) Id.
V.
The petitioner's first allegation is that his trial counsel, Attorney Ferry, failed to move to suppress the petitioner's statement to the police. According to the amended petition, the petitioner gave a statement to the East Hartford Police on October 25, 2011, shortly after he was apprehended upon the scene of an East Hartford robbery. The statement encompassed all charged robberies. The statement was typed by detectives and ultimately signed by the petitioner, although the petitioner asserts that what is contained in the written statement is not the same information the petitioner told the detectives. The petitioner further alleges that he informed Attorney Ferry of these " inconsistencies, " but that counsel did not seek suppression of the statement premised thereon. The petitioner avers that Attorney Ferry's deficient performance prejudiced him in that there is a reasonable probability that a motion to suppress, if pursued, would have resulted in the suppression of the statement and the dismissal of the charges, or in the absence of such an outcome, a plea of nolo contendere and an interlocutory appeal.
According to Attorney Ferry, the petitioner informed him of the inconsistencies in the statement and the two of them had many discussions about the statement. Attorney Ferry testified that he pointed out these inconsistencies to the prosecutor. However, Attorney Ferry could not specifically recall if he discussed pursuing a motion to suppress. The petitioner's focus, and the defense objection, from the very beginning, was on resolving the multiple criminal charges without a trial and with the lowest possible sentence. Attorney Ferry did not believe that the petitioner would prevail on a motion to suppress and, accordingly, the focus of his efforts was to resolve all pending criminal charges via a global resolution in both jurisdictions.
The petitioner testified that he did not review his statement prior to signing it because he trusted the police. According to the petitioner, Attorney Ferry never discussed a motion to suppress with him, maintaining that the inconsistencies did not matter. The petitioner's expert witness, Attorney Popkin, noted that it is appropriate for defense counsel to discuss motions to suppress with clients. Attorney Popkin further noted it would be ineffective for defense counsel to not discuss the weight that would be given to the statement at trial if it were not suppressed. " In order to show ineffective assistance for the failure to file and proceed with a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn.App. 497, 514, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007), citing and quoting United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990); Williams v. Commissioner of Correction, supra, 120 Conn.App. 428.
The precise " inconsistencies" claimed were not expanded upon or fully explained in the evidence. An example of an inconsistency identified by the petitioner was that the statement included a robbery on which he was not charged.
This court's assessment of the evidence leads it to the conclusion that the petitioner has failed to prove deficient performance by Attorney Ferry. First, the court does not credit the petitioner's testimony that counsel never discussed the motion to suppress with him. The fact that Attorney Ferry could not specifically recall discussing a motion to suppress with the petitioner does not establish, or even suggest, that the attorney was oblivious to such motion, or without reason disinclined to file same; rather, it's indicative that the attorney in his professional judgment did not believe there were valid grounds for suppression. Indeed, the filing and pursuance of a suppression motion might well have resulted in the withdrawal State's pretrial offer regarding the total effective sentence. Both the petitioner and Attorney Ferry testified that the " inconsistencies" were discussed; in the court's view, it strains credulity that such " inconsistencies" would be discussed absent an awareness and assessment, on the part of counsel, regarding the viability of a motion to suppress. Discussion of the purported inconsistencies, which were never fully identified at the habeas trial, would not occur in a vacuum. Stated somewhat differently, weighing the advisability of a motion to suppress provides a context within which the statement's inconsistencies have meaningful relevance. Clearly, the attorney did not believe, and the petitioner has not demonstrated, that a motion to suppress would have been meritorious.
Even if this court were to assume that the petitioner had proven deficient performance, which he has not, there has been no showing of prejudice. The petitioner has not affirmatively demonstrated that he would have prevailed on a motion to suppress the statement. The petitioner and Ronnell Hall, his co-defendant, were arrested as they were getting ready to commit an additional robbery in their ongoing crime spree, and both of them gave statements to the police. The petitioner acknowledged he was involved in the robberies and took full responsibility at both sentencings for the crimes he committed. This court is not persuaded that the petitioner would have persisted in pleading not guilty, proceeding to trial, and thereby running the risk of more convictions and a far greater total effective sentence.
Accordingly, the count one claim is denied in that the petitioner has failed to meet his burden of proof by showing deficient performance and the resultant prejudice.
VI.
The second and only other claim of ineffective assistance by Attorney Ferry is that he failed to investigate and raise an affirmative defense pursuant to General Statutes § 53a-134(a)(4). The amended petition alleges that Attorney Ferry failed to advise the petitioner that the inoperative condition of a firearm was an affirmative defense to robbery in the first degree. Attorney Ferry's representation resulted in the petitioner pleading guilty in Hartford to robbery in the first degree and conspiracy. The charges are more serious charges than those the petitioner pleaded to in Rockville, where the petitioner pleaded guilty to conspiracy to commit robbery in the second degree, and more serious than if he had prevailed at trial on the affirmative defense, but was convicted of robbery in the second degree. The petitioner asserts that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and proceeded to trial, where the affirmative defense would have been successful. The petitioner also asserts that he would have been able to plead to a lesser offense had Attorney Ferry effectively used the affirmative defense during plea negotiations.
Regarding any factual basis for the first degree robbery plea, the evidence presented at the habeas proceeding indicated the weapon recovered when Hall and the petitioner were arrested was a facsimile firearm. East Hartford Police Department case property maintenance forms refer to a facsimile handgun received by the police on October 26, 2011 and disposed of on July 17, 2013. As stated, Attorney Ferry testified that there was no dispute that the firearm was a starter pistol and, therefore, he did not have it tested. Nevertheless, it is clear from the credible evidence that petitioner, after discussions with counsel, wished to resolve the cases, globally and short of trial, based on the agreed-upon sentence of eleven years.
Attorney Ferry testified, credibly, that he and the prosecutor discussed the fact that the recovered weapon was a starter's pistol. Because the petitioner did not want to proceed to trial, the affirmative defense was never presented and, at best, could only have been used during plea negotiations. According to Attorney Ferry, in the course of such negotiations, the prosecutor was unwilling to back off of the robbery in the first degree charge, which left the petitioner with the choice of pleading under that charge or proceeding to trial where he could present the affirmative defense. Proceeding to trial involved the risk of being convicted on more charges, as well as the risk of a substantially longer sentence; that is, even if the affirmative defense were successful, and brought all robbery in the first degree charges down to the second degree, there remained the realistic probability of receiving a much longer sentence. As stated, from the very beginning, the petitioner wanted to globally resolve all charges in Hartford and Tolland, and the prosecutors in those jurisdictions were coordinating their respective prosecutions and sentence recommendations, all of which ultimately resulted in the agreed-upon eleven years. The petitioner, nevertheless, now asserts that he would have gone to trial because these were the first significant charges he had and his prior criminal record did not involve felonies.
Attorney Popkin noted that the petitioner was entitled to an affirmative defense. The petitioner should have received advice from defense counsel on the mechanics of such a defense and its burden of proof. Had the petitioner received such advice, then he could make an informed decision of whether to proceed to trial or resolve the charges by way of a plea agreement. The affirmative defense would be asserted and proven at the criminal trial. Nevertheless, an affirmative defense can also be discussed with the prosecutor and used during plea negotiations. Attorney Popkin acknowledged that it might be appropriate for defense counsel to have a client plead guilty, as did the petitioner, instead of rejecting the sentencing agreement, proceeding to trial, presenting the affirmative defense, and running the increased sentence risk.
Assistant State's Attorney Rubino testified that the pretrial plea discussions in Hartford were coordinated with the prosecutor in Tolland. Mr. Rubino indicated that he would not have lowered the charges down to robbery in the second degree and would have insisted that the petitioner raise his affirmative defense at trial. If the petitioner prevailed on his affirmative defense, but was convicted after trial on robbery in the second degree charges, Mr. Rubino, given the number of robberies, would have requested that the petitioner receive a total sentence in excess of twenty years on the class C felonies.
State's Attorney Gedansky testified that there were multiple plea offers made to the petitioner in Tolland. He described the plea negotiations as taking place between the two prosecutors and Attorney Ferry. Initially, the two prosecutors together were working toward resolving all charges in both jurisdictions, with the petitioner receiving a global total effective sentence of either twelve years to serve, or a shorter sentence followed by special parole. Thus, by way of example, if the petitioner negotiated an eight-year sentence in Hartford, he would receive a four-year consecutive sentence in Tolland. If the petitioner negotiated a sentence in Hartford such as the one he in fact received, then the Tolland sentence would be ordered to run concurrently.
As acknowledged by the petitioner's legal expert, it was within the bounds of effective representation by Attorney Ferry to have the petitioner plead guilty, rather than proceeding to trial, presenting the affirmative defense, and thereby forfeiting the negotiated global total effective sentence. Although the petitioner testified that he would have proceeded to trial, the court concludes that the petitioner was not credible in such regard, especially given his significantly greater sentence exposure after a trial. The court further concludes that Attorney Ferry's representation did not fall below an objective standard of reasonableness. Attorney Ferry's representation and advice were well within that of a reasonably competent criminal defense attorney. Consequently, the petitioner has failed to prove both of the two prongs of the Strickland/Hill test, and his second basis for ineffective assistance by Attorney Ferry also must be denied.
VII.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Counsel for the petitioner shall prepare and file with the clerk, within thirty days of this decision, a judgment file.
It is so ordered.