Opinion
CV144006688S
07-23-2018
John MAHONEY (Inmate #252954) v. WARDEN
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kwak, J.
The petitioner, John Mahoney, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. The petitioner seeks an order from the court vacating his judgments and restoring the case to the criminal court docket for further proceedings. The court heard evidence on March 27, 2018. Having considered the credible evidence and the arguments of the parties, the court grants in part and denies in part the petition.
I
PROCEDURAL HISTORY
On May 15, 1998, in the matter of State v. Mahoney, Docket No. CR97-0125901-T, the petitioner pleaded guilty to larceny in the first degree in violation of General Statutes § 53a-122, and burglary in the second degree in violation of General Statutes § 53a-102. Thereafter, the court, Gormley, J., sentenced the petitioner to five years incarceration. On February 23, 1999, in the matter of State v. Mahoney, Docket No. CR97-0133067-T, the petitioner pleaded guilty under the Alford doctrine to attempted assault in the first degree in violation of General Statutes § 53a-59.1 Thereafter, the court, Thim, J., sentenced the petitioner to twenty years incarceration to be served concurrently with his five-year sentence imposed in Docket No. CR97-0125901-T. On February 23, 1999, in the matter of State v. Mahoney, Docket No. CR98-0136347-T, the petitioner pleaded guilty under the Alford doctrine to murder in violation of General Statutes § 53a-54a. Thereafter, the court, Thim, J., sentenced the petitioner to a total effective sentence of thirty-five years incarceration to be served concurrently with the sentences he received in his prior two cases. The petitioner was represented in all three cases by Attorney Jonathan Demirjian. The petitioner did not appeal his convictions.
The petitioner initiated the present habeas petition on October 1, 2014. In his amended petition, filed on September 27, 2017, the petitioner claims that his counsel, Attorney Demirjian, was ineffective in: (1) recommending a thirty-four-year sentence on a plea agreement with a maximum sentence of thirty-five years with a right to argue down to twenty-five years; (2) failing to present any mitigating evidence in support of the imposition of a lesser sentence after recommending a thirty-four-year sentence on a plea agreement with a thirty-five-year maximum with a right to argue down to twenty-five years; (3) failing to adequately consult with the petitioner prior to the plea about the sentencing range; (4) failing to investigate, retain and consult with a mitigation specialist for the petitioner’s sentencing; (5) failing to provide the sentencing court with mitigating evidence concerning the petitioner’s character through the petitioner’s family members and a mitigation specialist; and (6) failing to consult with and advise the petitioner regarding his right to sentence review and failing to pursue the same. The respondent filed a return on October 12, 2017.
The petitioner also alleged claims in his petition that counsel was ineffective in failing to adequately investigate and pursue a self-defense claim as to the murder charge in light of available evidence, failing to adequately investigate witnesses to corroborate the petitioner’s claim of self-defense as to the murder charge, failing to properly advise the petitioner regarding good time credit and failing to investigate and pursue a global disposition on all dockets or advise the petitioner of the effect of such on his sentence. These claims were withdrawn at trial. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
A trial was held on March 27, 2018, at which the petitioner called Mary Hunt, the petitioner’s mother, Attorney Demirjian, Jamie Seriani, Attorney Kenneth Simon, an attorney expert, and himself as his witnesses. The parties presented several exhibits to the court, including the petitioner’s presentence investigation report (PSI), the petitioner’s neuropsychological evaluation, police statements, transcripts and arrest reports.
II
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, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that "(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694.
"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]menolment.’ " Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. 687. "It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). 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, at 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). "The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, supra, 290 Conn. 522.
Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686.
A
The petitioner first alleges that Attorney Demirjian was ineffective in recommending a thirty-four-year sentence on a plea agreement with a thirty-five-year maximum with a right to argue down to twenty-five years. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
At the habeas trial, Attorney Demirjian testified that he had been a public defender for ten years when he represented the petitioner. He testified credibly that receiving a lesser sentence pursuant to a right to argue was next to impossible in a murder case, and that he requested a thirty-four-year sentence because he believed it was a reasonable and realistic offer that the sentencing judge would be more likely to accept. Attorney Demirjian further testified that the judge was not going to give the petitioner a sentence with significantly less time than thirty-five years to serve, so he believed he had a better chance of getting thirty-four years than if he had asked for significantly less time. "[W]ith regard to the performance prong of Strickland, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Martinez v. Commissioner of Correction, 147 Conn.App. 315, 82 A.3d 666 (2013), cert. denied, 311 Conn. 917, 85 A.3d 652 (2014).
The court finds that Attorney Demirjian’s recommendation for the thirty-four-year sentence was a strategic decision, and thus does not constitute deficient performance. The petitioner was facing eighty years to serve. Attorney Demirjian’s recommendation for thirty years to serve was reasonable in light of the plea deal the petitioner received.
Moreover, the petitioner failed to prove prejudice by indicating that the court would have likely accepted a lower offer. The petitioner did not demonstrate that had Attorney Demirjian requested twenty-five years to serve, the judge would have granted it, particularly in light of the fact that he denied counsel’s request for one year less than the thirty-five years to which the petitioner was ultimately sentenced. As a result, this claim must be denied.
B
The petitioner also alleges that Attorney Demirjian was ineffective in failing to present any mitigating evidence in support of the imposition of a lesser sentence at his sentencing hearing. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
At the habeas trial, the petitioner presented testimony by Mary Hunt, the petitioner’s mother, and Jamie Seriani, the petitioner’s former girlfriend, in support of his claim. Both witnesses testified as to the issues in the petitioner’s family home, including physical and verbal abuse by his father, and his father’s drinking problems. Seriani further testified that the petitioner was punctual and hardworking when they worked together for several months, and that he was compassionate and affectionate in their relationship.
The transcript of the petitioner’s sentencing hearing reveals that Attorney Demirjian did present mitigating arguments to the court. Attorney Demirjian referenced the petitioner’s family history twice, and discussed the petitioner’s use of drugs and alcohol at an early age. Attorney Demirjian indicated that the petitioner went to high school prior to his incarceration, and stressed the petitioner’s talent in the masonry field. Attorney Demirjian also indicated that the petitioner obtained his GED while incarcerated. The PSI also discusses the history of emotional and physical abuse in the petitioner’s household. The PSI further indicates that the petitioner’s mother was contacted to be interviewed, but she refused to do so. In light of the foregoing, the court finds that Attorney Demirjian’s performance meets the standard of effective representation.
As to the prejudice prong, the petitioner also has not demonstrated that, had his trial counsel presented the additional mitigating evidence, he would have received a lesser sentence. "Criminal defendants have a constitutional right to effective assistance of counsel during the sentencing stage ... To establish prejudice, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings ... A claimant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.) Davis v. Commissioner of Correction, 147 Conn.App. 343, 360, 81 A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d 467 (2014). While sentencing the petitioner, the court stressed that the petitioner had numerous charges and convictions on his record and was on probation when the crimes occurred, that the petitioner shot the victim four times and that the case had a traumatic effect on the victim’s family. The court concludes that the petitioner has failed to establish a reasonable probability that the sentence imposed would have been different, if his trial counsel had presented testimony by the petitioner’s own mother and former girlfriend as to the petitioner’s character and the petitioner’s family issues which were already before the court. Thus, this claim must fail.
C
The petitioner also alleges that Attorney Demirjian was ineffective in failing to adequately consult with him regarding the sentencing range prior to his acceptance of the plea deal. The petitioner has failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
The petitioner testified that Attorney Demirjian did not discuss the penalties he faced in depth with him, and the petitioner understood that the maximum exposure he could receive was high, but did not know the actual number of years. Attorney Demirjian credibly testified that while he cannot recall the specifics in the petitioner’s case because it occurred twenty years ago, it was his standard practice to ensure that his clients were aware of the maximum exposure they were facing. The transcript of the petitioner’s plea canvass indicates that the petitioner understood the potential range of sentences, including the maximum possible sentence of eighty years to serve. In light of the requirement that the habeas court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the court finds that Attorney Demirjian’s consultation with the petitioner regarding the sentencing range did not constitute deficient performance.
Moreover, the court finds that there is no credible evidence that had counsel consulted with him further regarding the sentencing range, the petitioner would not have accepted the plea deal. Thus, the petitioner has failed to prove that he was prejudiced thereby. As a result, this claim must also be denied.
D
The petitioner further alleges that Attorney Demirjian was ineffective in failing to consult with a mitigation specialist prior to the petitioner’s sentencing hearing. The petitioner also failed to prove this claim.
Attorney Demirjian testified at the habeas trial that he did not retain a mitigation specialist in the petitioner’s case because it was not the standard practice in the Fairfield judicial district at that time to do so in a murder case that did not involve the death penalty. Attorney Demirjian further testified that it was instead his standard practice to review the PSI with his client in preparation for sentencing. In light of the requirement that the habeas court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the court finds that Attorney Demirjian’s failure to retain a mitigation expert in the petitioner’s case did not constitute deficient performance.
Moreover, the petitioner did not call a mitigation specialist to testify at the habeas trial. The court therefore cannot determine what, if anything, a mitigation specialist would have contributed in this case. See Henderson v. Commissioner of Correction, 129 Conn.App. 188, 194-95, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011). Thus, the court finds that the petitioner has failed to prove he was prejudiced by Attorney Demirjian’s failure to consult with a mitigation expert. As a result, this claim must be denied.
E
The petitioner further alleges that Attorney Demirjian was ineffective in failing to advise the petitioner of his right to sentence review, and failing to file an application for sentence review pursuant to General Statutes § 51-195. The petitioner has sustained his burden in proving this claim.
"[T]he legislature passed the Sentence Review Act in 1957; Public Acts 1957, No. 436; to reduce the disparity in sentences meted out by different judges and, thereby, to quell prisoner discontent. The purpose and effect of the Sentence Review Act is to afford a convicted person a limited appeal for reconsideration of his [or her] sentence ... It thus gives him [or her] an optional de novo hearing as to the punishment to be imposed ...
"Under article first, § 8, of the Connecticut Constitution and the sixth and fourteenth amendments to the United States Constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review. [T]he sentencing process is a critical stage of a criminal trial ... Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review ... The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel ... It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue. The constitutional right to the effective assistance of counsel at sentence review is not diminished by the fact that the right to sentence review, like the right to a direct appeal, derives from statute rather than a constitution." (Citations omitted; internal quotation marks omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998). To establish prejudice in an ineffective assistance of counsel claim relating to sentence review, the petitioner must "provid[e] evidence that he would have wanted to file for sentence review had counsel engaged him in a meaningful discussion." Hilton v. Commissioner of Correction, 161 Conn.App. 58, 82, 127 A.3d 1011 (2015), cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016).
At the habeas trial, Attorney Demirjian testified that he has no recollection of reviewing the petitioner’s right to sentence review with him, or filing an application for sentence review. There is no indication in the record that a sentence review application was filed in the petitioner’s case. The petitioner testified at the habeas trial that he had no knowledge of the sentence review process, and had he discussed it with his attorney, he would have proceeded with the sentence review application. The petitioner’s attorney expert, Attorney Simon, testified at the habeas trial that it is the defense counsel’s obligation in a case involving an arguable sentence to discuss and pursue sentence review rights on behalf of his or her client.
The record reveals that Attorney Demirjian failed to engage the petitioner in a meaningful discussion as to whether to apply for sentence review, and failed to file an application for sentence review within the statutory time period. As a result, the court finds that the petitioner has proven deficient performance as to this claim. Moreover, the court credits the petitioner’s testimony that he would have filed for sentence review had his attorney discussed this option with him. Thus, the petitioner has also proven that he was prejudiced by counsel’s deficient performance. As a result, this claim must be granted.
III
CONCLUSION
Accordingly, the petitioner’s claim of ineffective assistance of counsel in seeking sentence review is hereby granted. The additional counts are hereby denied.
It is hereby ordered that the petitioner’s right to apply for sentence review be restored. The court additionally orders the appointment of an attorney from the office of the public defender to represent the petitioner in connection with his application for sentence review. An application for sentence review, if filed, must be filed no later than thirty days from the date of the court’s decision.