Opinion
No. CV02 081 90 95
November 4, 2003
MEMORANDUM OF DECISION
The petitioner, Allan Nicholson, alleges in his petition for a Writ of Habeas Corpus initially filed on August 20, 2002 and amended for the final time on October 23, 2003, that (a) he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and, (b) he is entitled to have an additional 611 days of jail credit subtracted from the sentence he received in Criminal Docket number CR99-0277475. Consequently the petitioner asserts that he should be allowed to withdraw his plea of guilty. For the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to properly advise him as to the meaning of the plea agreement and to perfect an appeal on the pro se motion to dismiss that had been denied by the trial court The petitioner argues that as a result the trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
This matter came on for trial before this Court on November 3, 2003. The petitioner, his trial defense counsel, Attorney Michael Moskowitz, and Records Specialist II, Michelle Deveau all testified at the trial. In addition, the Court received a transcript of the petitioner's May 9, 2002 plea and sentencing, the petitioner's Department of Corrections time sheets, the pro se motion to dismiss, and court records for Docket No. CR99-277475 and CR99-277467 into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact CT Page 13294
1. The petitioner was the defendant in two criminal cases in the Judicial District of Waterbury, to wit: (a) Docket Number CR99-277467 (hereafter "Docket One") in which he was charged with robbery in the first degree with a dangerous weapon in violation of CGS § 53a-134(a)(3) and with being a persistent serious felony offender in violation of CGS § 53a-40; and (b) Docket Number CR99-277475 (hereafter, "Docket Two") in which he was charged with four counts of robbery in the first degree with a dangerous weapon in violation of CGS § 53a-134(a)(3).
There apparently was a third criminal docket that pursuant to the plea agreement ultimately achieved in this case ended up with the state entering a nolle prosequi.
2. The petitioner was arrested on these cases on February 17, 1999 and was unable to post bail so he has remained in continuous custody from that date through the date of this decision.
3. On October 20, 2000, after having spent a total of 611 days in pretrial confinement, the Court) Doherty, J., following a conviction by the jury on Docket One, sentenced the petitioner to a term of incarceration of 25 years.
4. On June 4, 2001, Attorney Michael Moskowitz was appointed as a special public defender to represent the petitioner in connection with Docket Two by the Court, Damiani, J.
5. On July 19, 2001, following a canvass by the Court, Damiani, J., the petitioner was granted the right to represent himself in Docket Two with Attorney Moskowitz as standby counsel.
6. On April 23, 2002, the petitioner filed a motion to dismiss the charges in Docket Two on the grounds that the state had deprived the petitioner of his statutory right to a speedy trial as required by CGS § 54-82d.
7. On May 9, 2002, the Court reappointed Attorney Moskowitz as the petitioner's counsel on Docket Two. That same day, Attorney Moskowitz successfully negotiated a pretrial agreement of Docket Two in which the petitioner would plead nolo contendere to two counts of larceny in the second degree in exchange for which the Court would sentence him to two terms of confinement of 3 1/2 years to be served concurrent to each other and concurrent to the sentence in Docket One.
8. At the plea canvass, the Court made it clear to the petitioner that this was not a conditional plea of guilty that would permit him to appeal a denial of the motion to dismiss that he had filed on April 23, 2002.
"The Court: . . . We discussed in chambers, Mr. Nicholson, your wanting to plead nolo contendere to a charge of theft from a person, a larceny second degree, and you want to be a conditional plea having the right to take an appeal from my ruling on a motion to dismiss. I told Mr. Moskowitz and the state's attorney that I would not accept a conditional nolo plea . . . Do you understand that?
The Defendant: Yes sir" See Petitioner's Exhibit 4, pp. 2-3.
9. During the plea canvass, Attorney Moskowitz brought up the subject of what pretrial credit should be given to the petitioner on this Docket Two. Judge Damiani stated that that was a matter to be determined by the Department of Corrections. After some on the record discussion, the case was temporarily recessed so that the state and the petitioner could enter into further negotiations.
10. Upon return from this discussion, the agreement had been altered to concurrent sentences of two years instead of 3 1/2 year concurrent sentences. This charge was to give the petitioner "credit" for the time he had spent in pretrial confinement.
"The Court: Okay. We just talked in chambers now. Now the agreement is going to be for you to receive a sentence of two years flat which is sixteen months less than the forty months on each larceny second to run concurrently with each other, to run concurrently with the twenty-five years you got. Do you understand that?
The Defendant: Yes Sir.
The Court: That two years is being given to you today. I don't think you're entitled to any credit, but the state's attorney and your lawyer agreed that the fair thing to do would be to reduce it by that amount, but by accepting the two years, you're giving up any claim for any credit you think you may have which predates October 20, 2000 on this file. Do you understand that?
The Defendant: Yes, I do, sir.
The Court: Because you got the credit today, so you can't go back and fight with the Commissioner of Corrections and try to get double credit Do you understand that?
The Defendant: Yes sir.
The Court: So once you take the two years, that's already put in the mix, it's a done deal.
The Defendant: I understand" See Petitioner's Exhibit 4, pp. 8-9.
11. The Court, Damiani, J., thereafter thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas, entered findings of guilty and pronounced a sentence in fulfillment of the pretrial agreement.
10. The Court will discuss additional facts, as necessary.
Discussion I.
The petitioner now comes before this Court seeking to withdraw his voluntary plea of nolo contendere to the charges of larceny in the second degree in violation of CGS § 53a-123.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner . . . "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his pleas of nolo contendere, a plea that has the same effect as a guilty plea. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's plea of nolo contendere is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his plea is valid. A valid plea of guilty or nolo contendere will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
See P.B. § 39-18: ". . . A plea of nolo contendere shall be in writing, shall be signed by the defendant and, when accepted by the judicial authority, shall be followed by a finding of guilty."
Here, the petitioner entered his pleas by way of a plea of nolo contendere. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 23 at 33 (1970). The petitioner was charged with several serious charges. Had he gone to trial on this matter and been convicted, he would have faced a potentially long period of incarceration, as much as forty years. His total "exposure" was, therefore, high.
At the time he entered his plea in May 2002, it was prudent for the petitioner to agree to the settlement and waive his right to a trial. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See CT Page 13297 North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to accept a pretrial agreement, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a favorable sentence. Moreover, given that the petitioner was already serving a sentence of twenty-five years, the additional two-year sentences to be served concurrently did not affect his release date in any way.
Albeit subsequently reduced to ten years.
The ultimate decision as to which plea a criminal defendant enters in a case rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to offer his client proper counsel may well be providing ineffective representation.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into tie formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court seeking to set aside his plea of nolo contendere on the ground that his attorney failed to perfect his right to appeal the trial court's dismissal of his motion to dismiss. However, the evidence presented to this court clearly shows that the petitioner, at the time he entered his pleas was fully aware that by entering into the pretrial agreement he was waiving any such appeal. There has been nothing presented to this court that would permit a finding that Attorney Moskowitz was in any way deficient in his duties to his client when he did not file an appeal. Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 4267, 104 S.Ct. 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commisioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls `within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his representation and negotiation of a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorneys inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any failure by his trial defense counsel to file the appeal. First, the right to appeal in the first place was waived by the petitioner when he accepted the pretrial agreement. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did negotiate a resolution that had the practical effect of the petitioner not receiving any further punishment. The petitioner freely made the choice to give up his right to appeal in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
Additionally, this Court is convinced that even had the petitioner been able to appeal the denial of the motion to dismiss, the appeal was without any merit The petitioner was described as a street-wise individual with a lengthy history of felony convictions. It is true that a violation of the statutory speedy trial rules will lead to a dismissal of charges, see State v. McCahill, 265 Conn. 437 (2003). However, in order to avail himself of the protections of this statute, CGS § 54-82c, the defendant must as a mandatory prerequisite "cause to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information." The evidence adduced in the habeas trial is clear that this was never done. Consequently, there could have been no violation of the petitioner's statutory speedy trial rights. Given this fact, even if the performance of Attorney Moskowitz was found to be deficient (and it wasn't) the petitioner did not suffer any prejudice.
II
The petitioner has also raised a claim that he is entitled to have additional days of pretrial confinement credit added to the computation of his sentence in this case. As such, this would seem to present a factual situation similar to that addressed by this court in a previous habeas petition, Harris v. Warden, 2003 Ct. Sup. 7547, (June 24, 2003). In Harris, this court concluded that where an individual has been sentenced to concurrent sentences on different dockets on different days, the days of pretrial confinement that overlap may be counted on each docket without violating the provisions of CGS § 18-98d. At first examination, it would appear as if the instant case presents just such a situation and that this court should apply the Harris rationale here as well. There is, however, an additional fact that operates to prevent that.
In the instant case, the petitioner has bargained away his right, amorphous though it may be, to receive any Harris credit or similar consideration from the Department of Corrections. The original plea bargain between the state and the petitioner called for there to be two concurrent sentences of 3 1/2 years of confinement each. When the petitioner's trial defense counsel brought up the issue of credit for pretrial confinement, the trial judge noted that the petitioner would receive all credits to which he was entitled. As a result of the ensuing discussion, the state and the petitioner thereafter agreed to reduce the agreed-upon sentence to a flat two years in order to take into consideration any issue of pretrial confinement credit. In return, the petitioner expressly waived any right to seek additional credit. Unfortunately, the petitioner has overlooked his obligations in this plea bargain and is seeking to do precisely that.
It must be noted that this court's decision in Harris has been appealed and, at the time of the decision in the instant case is still pending before the state Supreme Court. Consequently, while the Harris decision is binding upon the Department of Corrections as regards to petitioner in that case, Mr. Randy Harris, the Department of Corrections is under no obligation to extend that ruling to any other inmate's situation. Indeed, it is the position of the Commission of Corrections that Harris is incorrectly decided so it is unlikely that the petitioner would have received any sort of credit from the Commissioner for the 611 days he spent in pretrial confinement. Nevertheless, as will he further discussed, it is apparent that, despite no requirement to do so, the state voluntarily agreed to allow credit in the agreed-upon sentence.
A plea agreement is in the nature of a contract between the state and a criminal defendant. "Plea agreements are an essential and necessary part of the administration of justice." Santobello v. New York 404 U.S. 257 (1971). Moreover, "the validity of plea bargains depends on contract principles." State v. Garvin, 242 Conn. 296 (1997). In the instant case, the state has fully performed all of the terms to which it had agreed. The contractual obligations of the state are, therefore, fully discharged. At this point, the state is entitled to specific performance by the petitioner of his part of the bargain. He did enter pleas of nolo contendere as required, but now seeks to renege upon his waiver of a claim for pretrial confinement credit. This is impermissible. Having received the "consideration" from the state of reducing the sentence from 3 1/2 years to two years, the petitioner is now contractually bound to honor his waiver of seeking pretrial confinement credit. Consequently, there is no relief that this court will afford to the petitioner on this count.
Conclusion
Here, the petitioner has been found guilty as a result of his own plea of nolo contendere. He enjoyed the representation of competent counsel and the Court has found that his plea was knowing, intelligent and voluntary. The petitioner has failed to prove ineffective representation of counsel and the guilty pleas will stand Further, while it is arguable that there should have been some credit for pretrial confinement allowed on the sentence, any right of the petitioner to receive such credit has been freely bargained away in consideration of a lower sentence. Consequently, there is no pretrial credit to be awarded to the petitioner on the two-year sentences.
The Petition for a Writ of Habeas Corpus is, therefore, denied.
S.T. FUGER, JR., JUDGE.