Opinion
No. CV 08 4002699
April 29, 2011
MEMORANDUM OF DECISION
On October 1, 2008, the petitioner, Clarence Patterson, filed a petition for a writ of habeas corpus, challenging his detention. In his amended petition, filed on August 13, 2010, he alleges that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and that his due process rights have been violated in that he is not receiving the benefit of his plea agreement. For reasons stated more fully below, the petition is denied.
The matter came to trial on January 13, 2011 and April 4, 2011. The court heard testimony from the petitioner, Attorney Tina Sypek D'Amato, the petitioner's trial counsel, and Joanne Leboeuf, a records specialist from the department of correction. The petitioner entered into evidence several documents, including, but not limited to, transcripts of his plea and sentencing hearing. The respondent entered into evidence certified copies of the petitioner's judgment files.
Having reviewed all the evidence, the court makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Stamford-Norwalk, geographical area number twenty, located in the city of Norwalk, under docket number CR07-117225. He was charged with burglary in the third degree in violation of General Statutes § 53a-103, larceny in the fourth degree in violation of General Statutes § 53a-125 and criminal mischief in the third degree in violation of General Statutes § 53a-117.
2. On March 31, 2008, the petitioner agreed to plead guilty to all the charges in exchange for a sentence of three years to run consecutive to his present sentence.
3. On that date, the trial court, Kaplan, J., thoroughly canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel. Thereafter, it sentenced the petitioner, as agreed, to a total effective sentence of three years to run consecutive to his present sentence.
Petitioner's Exh. 2, pp. 2-8.
4. At all relevant times, Attorney Tina Sypek D'Amato represented the petitioner. Ninety-eight percent of her practice is in the area of criminal defense.
5. The factual allegations underlying the charges to which the petitioner pleaded guilty are as follows: On November 2, 2004, "the complainant reported a burglary in her home located on Carter Street in New Canaan. She indicated she returned home . . . and found the wood frame kicked in . . . some things had been stolen from her house, including a computer scanner, a jewelry box, some wine, [and] a television set valued at five hundred and fifty dollars. They were able to recover a cigarette . . . from the residence, and [there] was a DNA analysis that revealed a match between . . . that and the [petitioner]."
Petitioner's Exh. 2, pp. 3-4.
6. At the time of his guilty plea, the petitioner was subject to undischarged terms of imprisonment stemming from matters disposed of in 2006 by way of guilty pleas.
7. On February 22, 2006, the petitioner pleaded guilty to burglary in the third degree and to the operation of a motor vehicle while under the influence in the judicial district of Stamford-Norwalk, geographical area number twenty, located in the city of Norwalk. He received a total effective sentence of three years.
Exhs. D and E.
8. On March 30, 2006, the petitioner pleaded guilty to burglary in the third degree in two separate cases in the judicial district of Stamford-Norwalk, geographical area number one, located in the city of Stamford. He received a total effective sentence of five years to run concurrent to his present sentence, the three-year sentence that he received on February 22, 2006.
Exhs. B and C.
9. On September 4, 2008, the petitioner pursued a motion to correct an illegal sentence. On that date, the trial court, Kaplan, J., found that the petitioner's sentence was not illegal and that "[he] got exactly what he bargained for . . ."
Exh. 3, p. 24.
10. Additional facts will be discussed as necessary.
DISCUSSION
In his amended petition, the petitioner alleges that his trial counsel, Attorney D'Amato, rendered ineffective assistance in that she failed to ensure (1) that the petitioner received the sentence that he agreed to and (2) that the record reflected the sentence that the petitioner agreed to serve.
"Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010). "To prevail on a constitutional claim of ineffective assistance of counsel resulting from a guilty plea, a petitioner must establish both that his counsel's performance was deficient and that the deficient performance prejudiced him . . . To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . To satisfy the prejudice prong, the petitioner must show a reasonabl[e] probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Citations omitted; internal quotation marks omitted.) Petty v. Commissioner of Correction, 125 Conn.App. 185, 188, 7 A.3d 411 (2010), cert. denied, 300 Conn. 903, 12 A.2d 573 (2011). Additionally, the petitioner must show that he likely would have fared better had he gone to trial. See, e.g., Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). "A reviewing court can find against a petitioner on either ground, whichever is easier . . . The petitioner cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer some demonstrable evidence in support of his claim." (Citation omitted; internal quotation marks omitted.) Petty v. Commissioner of Correction, supra, 188.
It is the petitioner's contention that in agreeing to accept a sentence of three years consecutive to his "present sentence," he agreed to accept a three-year sentence that would run consecutive to the three-year sentence that he received on February 22, 2006, as opposed to running consecutive to the five-year sentence that he received on March 30, 2006. At the habeas trial, the petitioner testified that he understood his "present sentence" to be the three-year sentence imposed on February 22, 2006 and his "current sentence" to be the five-year sentence imposed on March 30, 2006. Accordingly, he testified that, on March 31, 2008, he initially rejected the trial court's offer because it was three years consecutive to his "current sentence." After rejecting that offer, later that same day, the petitioner testified that Attorney D'Amato conveyed a "new" offer to him whereby the three-year sentence would run consecutive to his "present sentence," the three-year sentence imposed on February 22, 2006. The petitioner was unable to explain why the trial court and the state would have suddenly agreed to a different offer. In fact, at one point, he testified that the state and the trial court had no knowledge of his five-year sentence imposed on March 30, 2006, which belies his contention that Attorney D'Amato conveyed a "new" offer to him or that there was ever two different offers made on that date. In claiming that there were two different offers made to him on that date, the petitioner also argues that there is no reason why he would have accepted an offer that he initially rejected. It should be noted, however, that prior to rejecting the offer, the petitioner initially agreed to take it, and that after he rejected the offer, the trial court informed him that his case would be put on the firm trial list and that based upon his criminal history, the state would also be charging him as a persistent felony offender. Consequently, it is not inconceivable that petitioner would have changed his mind again and agreed to accept the offer after being reminded by the trial court that he would likely be charged as a felony offender which would have increased his total exposure. The petitioner acknowledged that he has a lengthy criminal history and that he has served fifteen or more sentences mainly stemming from burglary and larceny convictions.
Petitioner's Exh. 5, pp. 1-2.
Additionally, although the petitioner did not testify unequivocally that, but for Attorney D'Amato's alleged errors, he would have insisted on going to trial, he did testify that he believed he had some defenses to the charges. He testified that he believed that the DNA sample taken from him was unreliable and that the New Canaan police planted the cigarette butt found to have his DNA on it.
Attorney D'Amato testified at the habeas trial that she never told the petitioner that the three-year sentence would run consecutive to his three-year sentence imposed on February 22, 2006. She likewise never told him that it would run consecutive to his five-year sentence imposed on March 30, 2006. At the time of the habeas trial, Attorney D'Amato could not recollect whether she knew about the five-year sentence imposed on March 30, 2006. However, based on a review of some of her correspondence, she believes she was only aware of the three-year sentence imposed on February 22, 2006. Nonetheless, it is clear from her testimony that she was aware of the petitioner's lengthy criminal record. Attorney D'Amato further testified that she did an extensive investigation of the petitioner's case and that based upon her investigation, she believed that the state had a strong case against the petitioner and that the petitioner did not have any good defenses. As part of her investigation, Attorney D'Amato interviewed the victim, who informed her that she found the cigarette butt and pointed it out to the police. She also sought to have a confirmatory DNA sample taken from the petitioner.
There is no credible evidence before this court that the plea agreement accepted by the petitioner on March 31, 2008 contemplated that the three-year sentence would run consecutive to the three-year sentence that the petitioner received on February 22, 2006, as the petitioner contends. A review of the petitioner's plea canvass and sentencing reveal that the agreement was that the petitioner would receive three years consecutive to his "present sentence." As explained by the trial court at the hearing subsequently held on the petitioner's pro se motion to correct an illegal sentence: "[The petitioner] got exactly what [he] bargained for, three years consecutive to [his] present sentence, and that was whatever sentence [he] was serving . . . [He] did get three years consecutive to [his] present sentence, which in its common and ordinary language would be the maximum sentence [he is] serving . . ." Moreover, as testified to by Joanne Leboeuf, a records specialist from the department of correction, absent any indication that the sentence imposed was to be made consecutive to a specific sentence, the sentence would and was imposed by adding it to the petitioner's controlling sentence, the longest sentence he was serving, which was the five-year sentence imposed on March 30, 2006.
Petitioner's Exh. 3, pp. 24-25.
Based upon the above, the petitioner has failed to meet his burden in demonstrating deficient performance on the part of Attorney D'Amato. Even if this court presumed deficient performance on the part of Attorney D'Amato, the petitioner has likewise failed to meet his burden in demonstrating any resulting prejudice. There is no reasonable probability that had Attorney D'Amato clearly conveyed to the petitioner that his sentence would run consecutive to his five-year sentence imposed on March 31, 2006, thereby resulting in an additional 486 days of incarceration, he would have rejected the plea agreement and insisted on going to trial where he would have likely achieved a better result. The petitioner had twenty-seven prior convictions mainly for third degree burglary and third degree larceny. As noted supra, after he rejected the offer in the morning on March 31, 2008, the trial court reminded him that based upon his prior criminal history he would be charged as a persistent felony offender, which would have increased his exposure from six and one-half years to eleven and one-half years. Accordingly, the petitioner faced a much lengthier sentence had he gone to trial. Additionally, despite his testimony to the contrary, the petitioner did not have any good defenses to the charges. His contention that the police planted the evidence against him likely would not have held up against the victim's testimony that she found the cigarette butt and pointed it out to the police. Similarly, by the time the trial commenced, the state would have gotten a confirmatory DNA sample from the petitioner. After the petitioner initially rejected the offer, the trial court stated that "[t]he state should make sure that [the DNA] sampling's done." Consequently, the petitioner in all likelihood would have been convicted following a trial and would have received a lengthier sentence. The petitioner's ineffective assistance of counsel claim thus, fails.
Petitioner's Exh. 5, p. 1.
The petitioner's due process claim similarly fails. In count two of his amended petition, the petitioner alleges that his due process rights were violated because he is not receiving the benefit of his plea agreement. Specifically, he alleges that he agreed to a three-year sentence that would run consecutive to the three-year sentence that he received on February 22, 2006 and contrary to his expectations, the sentence is being run consecutive to the five-year sentence that he received on March 30, 2006.
"Several important constitutional rights are waived by a defendant entering a guilty plea; therefore, due process requires that the waiver be knowingly and voluntarily made, and that it be affirmatively disclosed in the record . . . Specifically, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea." (Citation omitted; internal quotation marks omitted.) State v. Claudio, 123 Conn.App. 286, 291, 1 A.3d 1131 (2010). "A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." (Internal quotation marks omitted.) Almedina v. Commissioner of Correction, 109 Conn.App. 1, 6, 950 A.2d 553 cert. denied, 289 Conn. 925, 958 A.2d 150 (2008).
A review of the plea transcript demonstrates that the trial court properly canvassed the petitioner prior to accepting his guilty pleas. The trial court inquired into whether the petitioner knew the elements of the charges, the maximum possible sentence that could be imposed and whether he knew that by pleading guilty he was giving up certain rights such as the right to be tried by a jury or a judge. In response to these inquiries, the petitioner indicated on the record that he understood. The trial court also questioned the petitioner regarding the agreed upon sentence. The following colloquy occurred during the petitioner's plea canvass:
Petitioner's Exh. 5, pp. 3-7.
"The Court: Your [sic] serving a sentence, is that correct?
"The [Petitioner]: Yes sir.
"The Court: And the understanding is that this sentence this [sic] your sentence on this file will be three years consecutive in addition to your present sentence is that your understanding?
Petitioner's Exh. 5, p. 5.
It is the petitioner's contention that his "present sentence" was the three-year sentence imposed on February 22, 2006. "[T]he reasonable expectations of the petitioner, when entering into a plea, are of great import because of the significance of the constitutional rights that are forfeited when choosing to plead guilty . . . The ultimate goal, however, in construing any plea agreement when there is a dispute as to its terms is the real intent of the parties . . ." (Citations omitted; internal quotation marks omitted.) State v. Dixson, 93 Conn.App. 171, 180, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006).
As discussed supra, there is no credible evidence before this court that the petitioner's "present sentence," as contemplated by the plea agreement, consisted of the three-year sentence imposed on February 22, 2006. The petitioner argues that the trial court and the prosecutor only knew about the three-year sentence imposed on February 22, 2006 and thus, that his five-year sentence imposed on March 30, 2006 could not constitute his "present sentence." There is no evidence before this court to that effect. There is no mention of either the previously imposed three-year or five-year sentence in the record. The only evidence to such effect is the petitioner's testimony that Attorney D'Amato specifically told him that the three-year sentence would be consecutive to his three-year sentence imposed on February 22, 2006. The petitioner's testimony is not credible, especially in light of the fact that during the hearing on his pro se motion to correct an illegal sentence, he represented to the trial court as follows: "The prosecution didn't know that that sentence [the five-year sentence] existed, Your Honor. Nobody knew that sentence existed, and I definitely didn't know." It is incredulous that the petitioner was unaware of the five-year sentence that he received on March 30, 2006, which by virtue of its length was his controlling sentence. That is, since the five-year sentence was imposed concurrent to the previously imposed three-year sentence it dictated his discharge date. See General Statutes § 53a-38(b) ("[i]f the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run"). Additionally, Attorney D'Amato credibly testified that she did not specify to which sentence the agreed upon sentence would run consecutively.
Petitioner's Exh. 3, p. 7
Furthermore, the petitioner's belief that his "present sentence" referred to the three-year sentence imposed on February 22, 2006 is not reasonable. Not only was there no mention of the three-year sentence anywhere in the record but this was not the petitioner's first experience in the criminal justice system. By his own acknowledgement, he has served fifteen or more sentences in the past. As noted by the trial court at the hearing on the petitioner's pro se motion to correct an illegal sentence, an inmate's present sentence "in its common and ordinary language would be the maximum sentence [he or she is] serving . . ." Moreover, as explained by Leboeuf, the department of correction calculates a sentence imposed consecutively to an inmate's present sentence by adding the terms to the inmate's controlling sentence, the longest sentence that the inmate is serving. In order to calculate it in any other way, the trial court or mittimus must provide such specifications. In light of the above, it is not reasonable that the petitioner would have believed, absent any specifications on the record, that his three-year sentence was to run consecutive to the three-year sentence imposed on February 22, 2006. It is also worth noting that although given the opportunity, the petitioner did not speak up at his plea canvass to clarify his sentence.
Petitioner's Exh. 3, p. 25.
The petitioner also argues that pursuant to General Statutes § 53a-37, the trial court had an obligation to state on the record the total effective sentence imposed. Specifically, he contends that if the three-year sentence was to run consecutive to the undischarged, five-year sentence, the trial court should have indicated that his total effective sentence would be eight years. The petitioner has not cited and this court knows of no authority interpreting § 53a-37 to require the trial court to calculate and state on the record at the time of sentencing the overall term of imprisonment when it sentences a person who is subject to an undischarged term of imprisonment to an additional term of imprisonment. Section 53a-37 merely requires that the trial court indicate whether such additional imprisonment is to run concurrently or consecutively to the undischarged term or terms of imprisonment.
General Statutes § 53a-37 provides in relevant part: "When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed . . ."
In short, the petitioner's due process rights were not violated. The trial court properly canvassed and sentenced him, and he knowingly and voluntarily pleaded guilty. Additionally, and more importantly, as the trial court subsequently stated: "[The petitioner] got exactly what [he] bargained for . . . three years consecutive to [his] present sentence, which in its common and ordinary language would be the maximum sentence [he was] serving . . ."
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.