Opinion
No. CV04-0004606 S.
December 1, 2006.
MEMORANDUM OF DECISION
The petitioner initiated the instant matter by filing a pro se application for a writ of habeas corpus on June 28, 2005. After the appointment of counsel, the petition was first amended on August 24, 2005, and again on December 1, 2005. The second amended petition raises claims in two counts: first, that the petitioner received ineffective assistance by trial defense counsel; second, that newly discovered evidence is sufficient to prove actual innocence. As relief the petitioner requests that he be allowed to withdraw his nolo contendere plea. The respondent's return denies the petitioner's material allegations and that he is entitled to the relief he seeks.
The matter came before this court on June 5, August 31 and September 1, 2006, for a trial on the merits. Testimonial evidence was presented by the petitioner, Attorney Dennis McDonough, Euclides Campos, Marlene Bermudez, and Valerie Bermudez. Documentary evidence comprised two transcripts and several documents relating to the underlying criminal matter. The court has reviewed all the evidence and, based on that review in addition to the allegations admitted to by the respondent, makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case, docket number CR-02-0179686 (hereinafter 'assault case'), in the Judicial District of Fairfield at Bridgeport. The petitioner also was the defendant in two additional criminal cases, docket numbers CR-02-0177374 and CR-02-0178216 (hereinafter 'narcotics cases'), in the Judicial District of Fairfield at Bridgeport.
2. The charges in the assault case arose from a shooting incident that occurred on May 2, 2002, at approximately 10 p.m. Bridgeport Police Department Detective Vincent L. Ingrassia applied for an arrest warrant application, which he signed and dated on May 12, 2002. On May 17, 2002, a judge found probable cause for the issuance of a warrant to arrest the petitioner for the charges of attempt to commit murder, criminal possession of a firearm, carrying a pistol without a permit and reckless endangerment in the first degree.
3. On May 28, 2002, the petitioner was arrested and gave a statement to Detective Ingrassia. The petitioner denied being at the place of the shooting at the time the shooting occurred. Instead, the statement indicates that the petitioner told the detective that he was with his father.
4. The petitioner was initially represented by Public Defender Gerety, who filed a series of motions in July of 2002. On November 4, 2002, a motion to appoint Attorney Dennis McDonough as a special public defender was filed and granted. Attorney McDonough filed his appearance for the petitioner on November 8, 2002. At all times relevant to the instant petition, the petitioner was represented by Attorney McDonough.
5. Attorney McDonough testified that he has been admitted to practice since late 1977. He has represented defendants in criminal matters since 1978 and has been involved in approximately five or six murder cases and taken about twenty cases to trial. After his appointment, Attorney McDonough received the petitioner's entire file from the Public Defender's Office, which included the police reports. Whatever information the petitioner provided to Attorney McDonough was passed on to the investigator for purposes of the investigation.
6. Attorney McDonough met several times with the petitioner. Based on information the petitioner provided to Attorney McDonough, which included the petitioner's assertion that he did not commit the shooting and that he was with his father at the time of the incident, McDonough hired a private investigator to investigate the matter. The private investigator did investigate the matter, but after speaking with the petitioner's father it became evident that the petitioner had lied to Attorney McDonough. It was determined through the investigation that instead of being away from the scene and with his father, the petitioner was dropped off by his father in the immediate vicinity of the incident just fifteen minutes before the shooting. Attorney McDonough testified that the petitioner's misinformation resulted in wasted time and efforts and undermined the defense's investigation.
7. The petitioner and McDonough both testified that the petitioner wanted to proceed to trial. According to McDonough, though, the petitioner had not provided any information that led to the petitioner having witnesses to call in support of any defense. To the contrary, the petitioner's lies to McDonough undermined the defense efforts.
8. The petitioner further complicated McDonough's preparation for trial by filing a motion for a speedy trial on March 27, 2003. The petitioner filed the speedy trial motion pro se even though Attorney McDonough had indicated to him that he needed more time to investigate and prepare the petitioner's defense. The petitioner asserts, however, Attorney McDonough was not prepared for trial, pressured him to take the state's offer and later withdraw his plea and go to trial. Through these machinations the petitioner hoped, as he testified before this court, to buy several weeks time so that Attorney McDonough would be prepared for trial.
9. The petitioner ultimately was charged in the assault case by way of substitute information, filed on March 31, 2003, with one count of attempt to commit murder in violation of C.G.S. §§ 53a-54a(a) and 53a-49, one count of assault in the first degree in violation of C.G.S. § 53a-59(a)(5), one count of criminal possession of a firearm in violation of C.G.S. § 53a-217(a), and one count of carrying a pistol without a permit in violation of C.G.S. § 29-35(a).
10. According to McDonough, the state had offered twenty years, suspended after the service of twelve years, with five years probation, that had been open for at least a month or two prior to April 2, 2003. A judicial pretrial with Judge Damiani eventually resulted in an offer of twelve years to serve. On April 2nd, when jury selection was ready to begin, McDonough and the petitioner met in lockup and discussed the various plea options, including a nolo contendere plea and a plea under Alford. Attorney McDonough also reiterated the state's offer of twelve years to serve, as well as a nolle to all other pending charges in the three dockets. Attorney McDonough testified that he spoke at length with the petitioner about the offer. However, the petitioner still was not interested in accepting the offer. McDonough then informed the prosecuting attorney that the petitioner wanted to proceed to trial and they informed the court that jury selection would go forward. The petitioner was brought into court and, before jury selection began, informed Attorney McDonough that he would accept the offer and change his plea. Upon the advice of Attorney McDonough, the petitioner entered a written plea of nolo contendere to one count of assault in the first degree.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). "Pursuant to [Alford], a criminal defendant has the right to plead guilty to the state's charges without admitting that he committed the crimes in order to take advantage of a plea bargain, to avoid the risk of conviction and possibly a more severe sentence after a trial." Smith v. Commissioner of Correction, 86 Conn.App. 163, 164 n. 1, 860 A.2d 295 (2004), cert. denied, 272 Conn. 918, 866 A.2d 1288 (2005).
11. The prosecuting attorney put on the record the following factual basis for the plea:
On May the 2nd of 2002 at Bridgeport, in the vicinity of Pembrook and Shelton Streets, approximately 10:13 p.m., the police responded to a report of shots fired. At that time they came upon the victim, one Baby Ray Gillcrest (phonetic), who had been shot and was found lying in the doorway of a home on Shelton Street. At that time he had sustained two gunshot wounds to the chest, a gunshot wound to his lower body, and was transported by American Medical Response medics to the Bridgeport Hospital Emergency Room, where he was treated. He also spent some time in the hospital; subsequently he has been released and is alive.
. . . Mr. Gillcrest was able to give a description of the person who had shot him. He indicated that the dispute had arose over Mr. Gillcrest complaining to the defendant that the defendant's pit bull had been defecating on the lawn of Mr. Gillcrest's residence. Mr. Gillcrest was able to positively identify the defendant in a photo array. Additionally, Officer Uliano (phonetic) whose post was in that area, was able to provide information that the defendant, whom he recognized from prior circumstances, was in the vicinity of Shelton Street on that evening and had seen him there. Also the police had, in the execution of a search and seizure warrant in an unrelated narcotics case, entered the defendant's home, whereupon they encountered two pit bulls who attacked the police officers, and one of the pit bulls actually was of the same description: it was white in color, same species as the animal complained of by Mr. Gillcrest, thus providing some corroboration to the actual motive for the shooting." Petitioner's Exhibit 1 (Tr. April 2, 2003), at 3-4.
12. Judge Lawrence L. Hauser thereafter thoroughly canvassed the petitioner regarding his plea and found it to be knowing, intelligent, voluntary, with the full understanding of the crime charged and after adequate effective assistance of counsel, Judge Hauser additionally found there was a factual basis for the plea. The petitioner waived a presentence investigation report. The petitioner was then sentenced by Judge Hauser to a term of twelve years to serve. The state entered a nolle to other remaining counts in the assault case and the two narcotics cases.
The sentencing court also terminated the prior probation. The sentencing transcript shows that the petitioner's exposure on the prior sentence for which probation was terminated was four and one-half years. Petitioner's Exhibit 1 (Tr. April 2, 2003), at 1 and 10.
13. The petitioner then sought to withdraw his plea. On April 21, 2003, Judge Hauser accepted the petitioner's withdrawal of his plea. However, on April 24, 2003, Judge Hauser revoked his acceptance of the petitioner's withdrawal of his plea because the petitioner had already been sentenced by the court, thereby depriving the court of jurisdiction over the motion to withdraw the plea. See Petitioner's Exhibit 2 (Tr. April 24, 2003).
"On April 14, 2003, the [petitioner] filed a motion to withdraw his plea on the ground that his trial counsel had rendered ineffective legal assistance and pressured him into entering the plea." State v. Perez, 85 Conn.App. 27, 29, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004). The Appellate Court went on to note that ". . . [t]hese claims stand in contrast to the [petitioner's] specific representations, made during the plea canvass, that the plea was being made freely and voluntarily, and that the [petitioner] was satisfied with his attorney's advice and review of the case with him . . ." Id., at 38.
14. The petitioner appealed from his conviction. On appeal, the petitioner raised two claims: " . . . that the court improperly (1) accepted his plea and (2) concluded that it did not have jurisdiction to grant his postsentencing motion to withdraw his plea." State v. Perez, 85 Conn.App. 27, 29, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004). The Appellate Court affirmed the judgment of conviction.
15. The petitioner presently is in the custody of the respondent as a result of the sentence imposed on April 2, 2003 in docket number CR-02-0179686.
16. Additional facts will be discussed as necessary.
DISCUSSION
The petitioner first claims that he received ineffective assistance of trial counsel More specifically, the petitioner alleges that Attorney McDonough failed to: adequately advise the petitioner concerning his options of various potential defenses; conduct an adequate investigation; obtain statements from any witnesses for the defense that might possibly demonstrate exculpatory evidence; present the defense available to support actual innocence through witnesses; and appropriately prepare for trial. The petitioner does aver that ". . . but for the trial counsel's acts and omissions, the petitioner would have elected a jury trial and the outcome would have been different." Second Amended Petition, at 2. The legal standard the court must apply, of course, is the standard applicable to ineffective assistance of counsel claims arising from guilty pleas.
The Appellate Court's decision on the petitioner's direct appeal shows that " . . . in his brief to [that] court, [the petitioner] recognize[d] that he has the right to petition for a writ of habeas corpus concerning issues with regard to his trial counsel's representation of him in this case. The [petitioner] assert[ed] that any attempt to obtain relief in a habeas proceeding is (1) not likely to succeed and (2) likely to cause him delay in obtaining relief with regard to his claims. These unsupported assertions ha[d] no bearing on [the Appellate Court's] analysis of the issue presented." State v. Perez, supra, 85 Conn.App. 38 n. 3.
This court would like to note that someone in the petitioner's position need not ". . . await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal. An appeal by the state or the defendant from the determination of the incompetency of counsel question may also be joined with a pending appeal from the judgment of conviction, thus allowing a single resolution on appeal of all the claims of error that have been raised." (Emphasis added.) State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d. 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). Examples of such consolidated appeals admittedly are infrequent, but include, for example, State v. Brown, 279 Conn. 493, 903 A.2d 169 (2006), and State v. Silva, 65 Conn.App. 234, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).
The petitioner also states that "[b]ut for trial counsel's errors and omissions . . . it is reasonably probable that the proceedings in the appellate court would have been different." Second Amended Petition, at 2. Attorney McDonough did not however, represent the petitioner on appeal and the petitioner has not raised a claim of ineffective assistance of appellate counsel.
"To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must establish both (1) deficient performance, and (2) actual prejudice . . . Thus, he must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, ([ 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court applied the two-pronged test set forth in Strickland to guilty plea negotiations, focusing on the application of the second prong requiring prejudice to be shown. The second, or 'prejudice,' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . ." (Internal citation and quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 205-06, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). "A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . A different result must be sufficiently probable to undermine confidence in the actual outcome . . ." Falby v. Commissioner of Correction, 32 Conn.App. 438, 443, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993).
The petitioner provided a statement to police on May 28, 2002. Petitioner's Exhibit 4. In that statement, the petitioner indicated that he was not familiar with the incident that led to the charges and that he was with his father at the time of the shooting. The petitioner testified before this court that he told Attorney McDonough the police officer on the scene falsely gave information to the investigating detectives. This false information pertained to where the arresting officer apprehended the petitioner and the information received from a confidential informant who provided false information. The petitioner initially told Attorney McDonough that he did not commit the shooting and that he was with his father at the time of the shooting. Subsequently, however, it became evident that the petitioner had lied to his attorney. The petitioner's father dropped the petitioner off close to the shooting location about fifteen minutes before it occurred.
The petitioner's dishonesty toward his own trial defense counsel undercut the defense efforts. Attorney McDonough credibly testified about the investigative efforts undertaken after the petitioner provided false information. Essentially, the petitioner was never able to provide his trial defense counsel with any information that led to discovery of information helpful to the defense or witnesses who could testify for the defense. At the habeas trial, the petitioner testified that he told Attorney McDonough about one Tulio Figueroa, a potential witness. According to the petitioner, he met Tulio Figueroa on May 29, 2002, the day after the petitioner was arrested for the instant offense. Tulio Figueroa told the petitioner while they were in lockup at the court that he was the individual who was with Valerie Bermudez and had an argument with the victim regarding the dog defecating on the victim's lawn. The court finds the petitioner's fantastical tale, as well as much of his other testimony before the habeas court, to be not credible.
Here, the petitioner undermined his own advocate's defense efforts, employed a Machiavellian scheme to plead guilty to buy time with the intent to later withdraw the plea, but nevertheless proceeded with the sentencing, and now claims his trial defense counsel was ineffective. This court cannot find, based on the credible evidence presented, that Attorney McDonough somehow failed to adequately advise the petitioner concerning his options of various potential defenses. The petitioner denied involvement but was never able to provide McDonough with any useful information. Simply put, there were no potential defenses aside from the petitioner's mere assertion that he did not commit the offense.
It is clear that the petitioner himself damaged the defense efforts and hampered counsel's attempts to conduct an investigation and cannot now claim counsel was deficient. As to any statements counsel should have obtained, the petitioner neither gave Attorney McDonough viable leads nor has he presented anything remotely exculpatory to this habeas court. Having failed to show both deficient performance and the resultant prejudice, the claim of ineffective assistance of counsel must fail.
Given the foregoing, the court need not expend much effort addressing the petitioner's second claim, that of actual innocence. "In Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997), our Supreme Court held that 'the proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.' . . ." Thompson v. Commissioner of Correction, 91 Conn.App. 205, 220, 880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509 A.2d (2006). The petitioner here has neither presented any evidence that remotely is clear and convincing, nor has he established that no reasonable fact finder would find him guilty of the crime.
Accordingly, the petition for a writ of habeas corpus is denied. The petition shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.