Opinion
No. CV 06 4001452
October 29, 2010
Memorandum of Decision
In this habeas corpus case, the petitioner claims that he received ineffective assistance of counsel and that there were other violations of due process when the trial court imposed and enforced a Garvin agreement; see State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997); at the time of his plea and sentencing.
"A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by the defendant's violation of a condition of the agreement." (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 3 n. 1, 895 A.2d 771 (2006).
I
The undisputed facts are as follows. On November 10, 2005, the petitioner, represented by Public Defender Christopher Cosgrove, entered a plea of guilty under the Alford doctrine; see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); to a charge of robbery in the first degree in the Litchfield Judicial District. The state indicated that the agreed-upon disposition was a sentence of seven years suspended after time served and five years of probation.
Testimony at the habeas trial revealed that the petitioner was arrested on October 4, 2004, and apparently detained until the time of plea. See also Respondent's Exhibit B (5/5/06 Tr.) at 1.
The trial court, Gill, J., then canvassed the petitioner. In doing so, the following dialogue occurred:
THE COURT: "The penalty for that particular crime is ten years in prison. You understand the crime and the possible penalties that you faced [sic]?
THE DEFENDANT: "Yes, sir."
[Assistant State's Attorney] FLETCHER: I'm sorry. If your Honor please, I believe it's a Class B.
THE COURT: It's a Class B felony.
MR. FLETCHER: Twenty years.
THE COURT: Twenty years. I'm sorry. It's a maximum of twenty years. You got that?
THE DEFENDANT: "Yes, sir."
(Respondent's Exhibit A (11/10/05 Transcript (Tr.) at 8.) After completing the canvass, the trial court accepted the plea.
Thereafter the court inquired whether counsel "wanted to be heard on bond" (11/10/05 Tr. at 12) and a discussion on the record ensued. Cosgrove proposed that the court release the petitioner on a promise to appear subject to conditions that the petitioner live with his aunt, obey her house rules, "that he stay out of trouble," and that he appear for sentencing on January 20. Cosgrove then added: "He understands if he were not to do that, he could face an additional charge of failure to appear, and that his plea bargain that we worked out will be null and void." (11/10/05 Tr. at 12-13.)
After recital of several other conditions of release, the following colloquy took place:
"THE COURT: Also, if he gets arrested for anything during this period of time with probable cause all deals are off.
[Assistant State's Attorney] FLETCHER: And he could be sentenced up to the maximum of the statute.
THE COURT: Up to twenty years.
[Defendant's Aunt] MS. BOYKIN: No. It's really serious.
THE COURT: Well, I'm going to release him on a written promise to appear, Ms. Boykin, in your custody really.
MS. BOYKIN: Okay.
THE COURT: And he's to understand if he gets in any trouble again, he can be arrested with probable cause and he's back in the yellow suit again and all deals are off. If he doesn't show up for the sentencing, all deals are off."
(11/10/05 Tr. at 13-14.) Without further comment from the petitioner, the court then set sentencing for January 20. (11/10/05 Tr. at 14-15.)
Sentencing actually took place on May 5, 2006. The state represented that, during the previous week, the petitioner had been arrested in Hamden on charges of robbery in the second degree, larceny in the sixth degree, and interfering with the police. The court responded that it had reviewed a police report and a typed witness statement and that it found probable cause for the arrest. The state indicated that it had supplied copies of those documents to Cosgrove and it entered the reports into the record as exhibits. (5/5/06 Tr. at 2-4.)
Testimony at the habeas trial confirmed that Cosgrove had received the reports. See Petitioner's Exhibits 1A, 2.
The State next made sentencing remarks and requested a sentence of twenty years. (5/5/06 Tr. at 5-9.) Cosgrove then made a motion to withdraw the petitioner's plea, as follows: "First of all, I am aware of the most recent State Supreme Court case on this matter of these Garvin plea canvasses. The Stevens case was just released this week, your Honor, and I do appreciate the import of that. But I believe that, still at this point, it's up to the Court — the Court has the discretion as to whether or not to proceed with a sentencing.
"I would ask the Court to consider today to allow Mr. Morrow to withdraw his plea and to proceed with this case, to increase his bond for sure but to — to withdraw his plea. And just a moment ago as we stood before you, Mr. Morrow asked me to ask you for a continuance so that he could obtain private counsel for that purpose, your Honor." (5/5/06 Tr. at 9.)
The state opposed the motion and the court denied it without further comment. (5/5/06 Tr. at 9-10.) The court then heard sentencing remarks from Cosgrove and the petitioner. The court thereupon imposed a sentence of eight years to serve followed by four years of special parole. The petitioner, at Cosgrove's request, received notice of his right to sentence review. There was no discussion of a right to appeal. (5/5/06 Tr. at 10-18.)
II
The amended petition is in two counts: ineffective assistance of counsel and violations of due process. These counts, in turn, encompass two themes: first, that there was no valid Garvin plea to begin with and, second, that there was an insufficient basis to find that the petitioner had violated the additional Garvin conditions.
In its return, the respondent alleges that the second, due process count is barred by the petitioner's procedural default in that the petitioner failed to raise these claims before the trial court or on direct appeal. See Crawford v. Commissioner of Correction, 294 Conn. 165, 179, 982 A.2d 620 (2009). Although the petitioner did move to withdraw in the trial court, he did not raise either of the themes that he now presses. While Cosgrove did cite State v. Stevens, 278 Conn. 1, 895 A.2d 771 (2006) — a Garvin case — he did not attempt to argue that there was no Garvin plea or Garvin violation. Essentially, then, the petitioner has procedurally defaulted.
Ordinarily, the petitioner could excuse his procedural default only by showing both cause and prejudice. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007). However, "a petitioner who has not moved to withdraw his guilty plea or challenged his plea on direct appeal need not establish cause and prejudice if he can fulfill the two-pronged test for ineffective assistance of counsel. See Johnson v. Commissioner of Correction, [ 285 Conn. 556, 570-71, 941 A.2d 248 (2008)]. 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." (Internal citations omitted.) Crawford v. Commissioner, supra, 294 Conn. 189.
Thus, both count one and count two collapse into a single inquiry of whether trial counsel rendered effective assistance. In this regard, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied, sub nom. Bryant v. Murphy, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 689).
The ineffective assistance theme emphasized in the petitioner's pretrial brief is the second of the two themes identified above, namely that there was an insufficient basis to find that the petitioner had violated the additional Garvin conditions. More specifically, the petitioner claims that counsel was deficient in failing to challenge the trial court's reliance on the probable cause standard to find a violation of the "no arrest" condition and in failing to challenge the court's finding that the police reports established a violation of that condition. The petitioner argues that counsel should have sought an evidentiary hearing at which the state would have had to prove not merely that the petitioner was properly arrested with probable cause, but rather would have had to prove by a preponderance of the evidence that the petitioner engaged in criminal conduct.
The respondent did not file a pretrial brief, which has hampered review of this matter.
This position is precisely the one taken by Justice Norcott in his concurring opinion in State v. Stevens, supra, 278 Conn. 13-14 (Norcott, J., concurring), which was decided only three days before the sentencing in this case. This view, however, was rejected by the majority, which decided, in Justice Norcott's own words, that "a showing of probable cause for the arrest is constitutionally sufficient" for a Garvin violation. Id. at 19 (Norcott, J., concurring). See also id. at 13.
The prosecutor in fact supplied the trial court with a copy of the decision. (5/5/06 Tr. at 2.)
The majority also rejected the position that a new arrest was something that was beyond the defendant's control and therefore an unreliable basis upon which to enhance a sentence. Id. at 10-12.
In response, the petitioner suggests that the majority decision did not rest on constitutional grounds. However, the petitioner does not identify the nonconstitutional grounds on which the majority's analysis supposedly rests and why a constitutional analysis would produce a different result. In fact, the Stevens majority mentions "due process" principles some twelve times in its opinion. Stevens faithfully applies the sentencing principle that "[a]s a matter of due process, information may be considered as a basis for a sentence only if it has some minimum indicia of reliability . . ." (Internal quotation marks omitted.) Id. at 10. Even Justice Norcott characterizes the majority's decision as resting on constitutional grounds. See id. at 13-14 (footnote omitted) (citing "the majority's conclusion that enforcement of the `no arrest' condition of the plea agreement in this case, pursuant to State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997) ( Garvin agreement), did not violate the due process rights of the defendant"); id. at 19 (citing "the majority's position that a showing of probable cause for the arrest is constitutionally sufficient.") Thus, under the principles set out in Stevens, when a sentencing judge in a Garvin case makes a finding that probable cause exists for a new arrest and that the defendant's sentence should therefore be enhanced, there is no violation of due process. Given this rule, there were no constitutional issues for Cosgrove to raise concerning the standard that applies for finding a Garvin violation.
Presumably, this information includes police reports. The majority observed that "a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come . . ." (Internal quotation marks omitted.) Id. (quoting State v. Eric M., 271 Conn. 641, 650, 858 A.2d 767 (2004)). Cf. State v. Small, 78 Conn.App. 14, 23-24, 826 A.2d 211 (2003) (finding of Garvin violation invalid when the court relied on a police report not made part of the record and the defendant had witnesses available who supposedly would contradict its content).
The petitioner also relies on cases such as Torres v. Berbary, 340 F.3d 63, 69 (2d Cir. 2003), in which the Second Circuit applied the rule that the preponderance of the evidence standard governs facts found at sentencing. There is no conflict between that rule and the decision in Stevens. It is permissible to read Stevens to hold that the state must prove by a preponderance of the evidence that there was probable cause for the defendant's new arrest.
Further, the petitioner has not presented any evidence that would contradict the trial court's finding that the petitioner had in fact violated the "no arrest" condition. The police report and witness statements that Cosgrove had at sentencing, and which are exhibits in this habeas case, firmly support a finding of probable cause to arrest. The petitioner did not introduce any evidence at the habeas trial that Cosgrove could have presented at sentencing to refute these reports. Thus, there was simply no basis for Cosgrove to challenge the trial court's finding that the petitioner had violated the "no arrest" condition of his Garvin plea. Accordingly, there was no ineffective assistance of counsel in this respect.
IV
The petition also alleges that Cosgrove was ineffective for failing to challenge, either by objecting in the trial court or recommending as a ground for appeal, the trial court's implicit conclusion that there was a valid Garvin plea to enforce. The petitioner's brief claims that the "no arrest" condition was imposed in exchange for releasing the petitioner on a promise to appear, not as part of the plea bargain.
It is true that during the November 2005 proceedings the trial court introduced the subject of the petitioner's post-plea behavior in the context of whether counsel "wanted to be heard on bond." Later in discussion, however, Cosgrove observed that the petitioner would have to "stay out of trouble" and that, if he did not, "his plea bargain that we worked out will be null and void." (Emphasis added.) The trial court then added that "if he gets arrested for anything during this period of time with probable cause all deals are off." (Emphasis added.) The court and the prosecutor next referred to his exposure at sentencing to the maximum sentence of twenty years. Finally, the court reiterated that "if he gets in trouble again, he can be arrested with probable cause . . . and all deals are off." (Emphasis added.)
The references to nullification of the "plea bargain" and the "deal" being "off" upon the petitioner's subsequent arrest are clearly not allusions to the question of bond, since plea bargains do not normally encompass bond agreements. Rather, these phrases refer to the issue of the petitioner's sentence, an issue that the plea agreement addressed. Similarly, it was in the context of the plea agreement, not bond, that the court and the prosecutor at that very time referred to the petitioner's exposure to the maximum sentence of twenty years.
Of course, as Cosgrove testified, Garvin pleas and bond are typically related. A Garvin plea is much more common when a defendant is released on bond between plea and sentencing.
It is also true that the trial court would have been clearer if it had stated that a provision of the plea agreement would be "enforced" if the petitioner were arrested with probable cause, rather than stating that the deal would be "off." As noted, violation of a Garvin condition calls for enforcement of, rather than nullification of, one of two binding provisions of the agreement. See note 1 supra. However, it is equally true that the court's lack of clarity did not confuse anyone. The petitioner acknowledged at the plea that the maximum penalty for the robbery he had committed was twenty years. Cosgrove stated at the plea that the petitioner "understands" that if he did not "stay out of trouble," then "his plea bargain that we worked out will be null and void." Indeed, this statement reflects Cosgrove's testimony at the habeas hearing, which the court credits, that he discussed the ramifications of a Garvin plea with the petitioner prior to court and that the petitioner understood them. Then at sentencing, Cosgrove reiterated that he was "aware of" the most recent case on Garvin pleas and "I do appreciate the import of that." Thus, the court's enforcement of the Garvin conditions came as a surprise to no one.
Given this understanding by both Cosgrove and the petitioner, there is nothing reasonable that Cosgrove failed to do. The petitioner argues that Cosgrove should have moved to withdraw the plea under Practice Book § 39-9 and, in general, objected to the imposition of a greater sentence than the petitioner had agreed to when entering the plea. That position, however, assumes that the petitioner had agreed only to a seven-year sentence suspended after time served. As the discussion above has established, however, all parties, including the petitioner, understood that the plea agreement encompassed Garvin conditions and that the petitioner faced up to twenty years if he violated them. Thus, there was no reason for Cosgrove to think that the trial court sought to impose a "different sentence from that embodied in the plea agreement" in violation of § 39-9.
Practice Book § 39-9 provides: "If the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his or her plea in accordance with Sections 39-26 through 39-28."
Similarly, there was no basis for Cosgrove to argue that the canvass was insufficient.
There is no Practice Book requirement that a defendant personally address the court to accept Garvin conditions. Practice Book § 39-19(4) does require that "[t]he judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands . . . [t]he maximum possible sentence on the charge . . ." But, as stated, the court correctly informed the petitioner that the maximum possible sentence for robbery in the first degree was twenty years and the petitioner replied that he understood.
Thus, the petitioner does not point to any case law rule or Practice Book authority that the court violated and that would have obligated Cosgrove to make a more specific motion to withdraw than the one he made. Further, Cosgrove was under no obligation to advise the petitioner to appeal from a guilty plea unless there were nonfrivolous grounds upon which to base such an appeal. See Shelton v. Commissioner of Correction, 116 Conn.App. 867, 878-79, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). The petitioner has shown none. In general, indulging in the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance"; Bryant v. Commissioner of Correction, supra, 290 Conn. 512-13; the petitioner has failed to prove that Cosgrove was ineffective.
V
In addition, the petitioner has failed to prove prejudice. The specific relief sought by the amended petition is that the court "vacate the plea [and/or] permit the petitioner to appeal the trial court's decision denying his request to withdraw the plea . . ." (Amended Petition, Conclusion.) As stated, to show prejudice resulting from ineffective assistance of counsel at a guilty plea, the petitioner must ordinarily establish "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." (Internal citations omitted.) Crawford v. Commissioner, supra, 294 Conn. 189. "[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." (Internal quotation marks omitted.) Shelton v. Commissioner of Correction, supra, 116 Conn.App. 879. The petitioner did not testify at the habeas hearing and thus there is no evidence establishing that the petitioner would have insisted on a trial or filed a timely appeal had he been advised to do so. Accordingly, he cannot show prejudice.
This court canvassed the petitioner concerning his willingness to have his plea vacated and risk exposure to a maximum possible sentence of fifty-five years, but the court did not address the issue of trial or appeal. The petitioner bore the burden on that issue and did not meet it.
VI
Thus, the petitioner has failed to prove ineffective assistance of counsel, either as cause for his procedural default or as a free-standing claim. Accordingly, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent Petitioner shall submit a judgment file within thirty days of the date of this decision. It is so Ordered.
Because there is no cause for the procedural default, the court need not consider the prejudice prong. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007). In any event, as established above, the petitioner has also failed to prove prejudice.