Ruffin v. Warden, State Prison

Full title: Roger RUFFIN v. WARDEN, STATE PRISON

Court: Superior Court of Connecticut

Date published: Apr 12, 2018

CV134005076S (Conn. Super. Ct. Apr. 12, 2018)

Opinion

CV134005076S CV134005077S

04-12-2018

Roger RUFFIN v. WARDEN, STATE PRISON

Sferrazza, J.

UNPUBLISHED OPINION

OPINION

Sferrazza, J.

In the action denoted as CV 13-4005077, the petitioner seeks habeas corpus relief from a total, effective sentence of ten years imprisonment, followed by eight years special parole, imposed after a jury trial, for the crimes of sexual assault first degree, sexual assault fourth degree, and three counts of risk of injury to a minor. Our Supreme Court affirmed the judgment of conviction on direct appeal, State v. Ruffin, 316 Conn. 20 (2015); affirming, 144 Conn.App. 387 (2013). In the action denoted as CV 13-4005076, the petitioner seeks habeas corpus relief from a total, effective sentence of twelve years imprisonment, imposed after his guilty pleas to sexual assault first degree and risk of injury to a minor, concurrent to the sentence recited earlier. These two habeas cases were companionized for trial, which trial occurred on August 30 and September 18, 2017.

In the criminal case underlying CV 13-4005076, the victim was the petitioner’s daughter, A.R., and the police arrested him on April 29, 2009, for sexually abusing her during the period March 2003 to January 2006. That criminal case was designated as CR 09-631185. Attorney Carlton Hume represented the petitioner for that criminal matter.

The victim in habeas case CV 13-4005077 was J.F., a friend of the petitioner’s daughter. The police arrested the petitioner on May 6, 2009, for sexually assaulting her in January 2009, and that criminal matter became CR 09-0631346. The state tried the latter case before a jury in September 2010, resulting in the guilty verdicts described above, and Attorneys Kevin Joiner and Kevin Henry represented him at trial.

I

Habeas Case CV 13-4005077

In this file, the petitioner asserts that his defense counsel, Attorneys Joiner and Henry, provided ineffective assistance and that the prosecutor’s closing argument violated his right to due process.

A.

Ineffective Assistance Claims

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.

As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.

This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.

Specifically, the petitioner alleges that defense counsel failed to prepare adequately for his defense; failed to present expert testimony in the area of child sexual abuse; failed to present an adequate alibi defense or other exculpatory evidence; failed to object to improper testimony from the state’s expert witness; failed to object to improper constancy of accusation testimony; and failed to object to the prosecutor’s closing argument.

1.

Alibi Evidence

Attorney Joiner testified at the habeas trial that the defense team sought out potential alibi witnesses in preparing for the petitioner’s criminal trial. Other evidence adduced at the habeas trial confirmed that defense counsel conducted such investigation when preparing the petitioner’s defense.

At the habeas trial, the petitioner presented the testimony of Robin Whitley, Jennifer Peay-Wright, El Kanah Glover, and Bobby Craddock, Jr., bearing on the issue of the petitioner’s whereabouts in January 2009 and/or the location of his blue BMW. J.F. stated that her sexual assault occurred in that vehicle. All of these persons acknowledged that someone, on behalf of the petitioner, contacted them before the criminal trial, discussed their knowledge concerning the petitioner’s activities during the relevant period of time, and alerted them to the possibility that the defense would call upon them to testify at the petitioner’s criminal trial. In fact, Mr. Craddock attended the criminal trial, but he never testified at that proceeding.

None of these persons testified. Attorney Joiner explained that, because the state bore no legal burden to pinpoint the precise date and time of the sexual assault and instead alleged a broad time span for these offenses, the potential testimony of these " alibi" witnesses had greatly diminished probative value. Defense counsel made the tactical decision to decline to proffer this severely limited alibi evidence which failed to exhaust the possible dates when the sexual assaults may have occurred. Presenting gap-ladened alibi evidence could highlight the absence of such evidence for the other plausible dates and times. Instead, the defense relied on the testimony of the petitioner’s wife, Veeda Ruffin, to demonstrate that throughout January 2009, the blue BMW in question remained in North Carolina.

There is a presumption in ineffective assistance cases that counsel’s tactical decisions embrace " sound trial strategy," in the absence of contrary evidence. Streater v. Commissioner, 143 Conn.App. 88, 107, 68 A.3d 155 (2013). Unsuccessful tactical decisions which are the result of the reasonable exercise of professional judgment still constitute effective assistance despite the unfavorable outcome, Stephen S. v. Commissioner, 94 Conn.App. 288, 296, 892 A.2d 312 (2006).

The court finds that the petitioner has failed to prove, by a preponderance of the evidence, that defense counsel rendered ineffective assistance with respect to this specification of the alleged deficient investigation and preparation.

2.

Constancy of Accusation Witnesses

In State v. Troupe, 237 Conn. 284 (1996), our Supreme Court restricted constancy of accusation evidence to those details surrounding a sexual offense " necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator," Id., 304. The petitioner’s criminal trial in 2010 took place six years before the further modification to the admissibility of constancy of accusation announced in State v. Daniel W.E., 322 Conn. 593 (2016).

In the petitioner’s case, the constancy of accusation witnesses were the victim’s mother, Hartford police officer James Fierravanti, Hartford police detective Edward Foster, and Erin Byrne, a clinical child interview specialist. The court has carefully reviewed the trial testimony of these witnesses and detects no instance where the Troupe rule, as it then existed, was breached. The minimum level of reasonable competency cannot require clairvoyance.

It must be recalled that J.F. accused the petitioner of two, distinct violations of her person. One pertained to improper touching, and the other to forcible fellatio. The prosecutor limited examination of these witnesses to J.F.’s reporting of time, place, identity of the perpetrator, and the details needed to distinguish the two crimes. Indeed, this victim’s mother testified that she was unaware of the allegation of fellatio until her daughter disclosed that incident during a police interview.

Also, Judge Miano expressly reminded the prosecutor, beforehand, that he must confine constancy of accusation questioning to the guidelines set forth under Troupe . The judge cautioned, " you can’t get into a lot of the underlying details- only the incident, when it happened, who the alleged suspect is, things of that nature, and the fact that it was sexual in nature." The prosecutor acknowledged the Troupe limitations, and his examination of these witnesses comported with Judge Miano’s admonition.

The court concludes that there were no Troupe violations about which defense counsel ought to have objected or moved to strike under the rules of admissibility as they existed at the time of the criminal trial. Therefore, this specification of ineffective assistance also fails for want of proof.

3.

Failure to Object to Expert Testimony

The petitioner also contends that defense counsel should have objected to or moved to strike the prosecutor’s use of the testimony of Erin Byrne that purportedly bolstered J.F.’s credibility. As noted above, Ms. Byrne conducted the forensic interview of J.F. in her capacity as a clinical child interview specialist. Byrne responded to the prosecutor’s inquiry, on redirect, by noting that the victim " disclosed abuse" during the interview. Also, Byrne indicated that she recommended that the victim undergo a medical examination and obtain counseling.

The petitioner attempted to question the propriety of such testimony in his direct appeal, however the Appellate Court declined to address the claim based on the absence of any objection at trial to a purely evidentiary issue, State v. Ruffin, 144 Conn.App. 387, 397-99 (2013). The Supreme Court denied certification as to this issue for the same reason, State v. Ruffin, 316 Conn. 20, 26 fn.3 (2015).

First, the court has reviewed Byrne’s testimony and finds that the above-quoted responses likely referred to the notion that during the victim’s interview, J.F. spoke of events that, if true, constituted sexual abuse. The prosecutor’s examination proceeded thusly:

" And when you interviewed the person on State’s Exhibit One, did she disclose abuse?"

Ms. Byrne responded:

" Yes, she did."

Nowhere in that colloquy did Byrne vouch for the credibility of J.F.’s disclosure. Byrne’s testimony preceding the above exchange stressed that the interviewer does not compare the child’s disclosure with other evidence nor question the child about discrepancies. During direct examination, the prosecutor asked Byrne if she makes credibility judgments in her capacity as a diagnostic interviewer. Byrne replied, " It is not my role to decide if a child is credible or not credible."

Viewed in the light of her entire testimony, it appears to the court that Byrne simply reiterated that J.F.’s recounting of events described incidents of sexual abuse rather than that Byrne had determined that the abuse, so described, actually happened or that she believed J.F.’s version. In other words, Byrne’s comment was her report of rather than her conclusion about J.F.’s interview.

Toward the end of direct examination, the prosecutor asked if Byrne made any recommendations regarding J.F.’s future care. Byrne related that she recommended " counseling services as well as a medical." The petitioner laments his defense counsel’s lack of objection to this inquiry.

In isolation, it might appear that this line of questioning was irrelevant and objectionable. However, other testimony by Byrne eliminated any prejudicial impact. She remarked that, among the purposes of the interview, one is to recommend whether a child needs counseling or medical services. She also noted that she " typically" recommends a medical examination for every child she interviews. Thus, it was clear that her recommendation for J.F. was not predicated upon Byrne’s determination that sexual abuse occurred as J.F. described. Depending on age and other circumstances, a child whose story lacks credibility may need counseling because of that very shortcoming.

Also, J.F. had already testified that she underwent a medical examination right after the interview. The state never introduced the results of that evaluation, and the jury was free to infer that nothing probative resulted. The court finds that this testimony played no role in the jury’s verdict.

Of course, as noted earlier, the lack of objection precluded appellate review. However, the absence of prejudice undermines any inference that the Appellate Court would have reversed the petitioner’s conviction had such objection been made and overruled. Evidentiary " rulings will be overturned on appeal only where there was an abuse of discretion and a showing ... of substantive prejudice or injustice," State v. Megos, 176 Conn.App. 133, 147 (2017). The petitioner has failed to prove this specification of ineffective assistance.

4.

Failure to Object to Improper Argument

The petitioner also argues that his defense counsel ought to have objected to improper closing argument by the prosecutor. In particular, the petitioner avers that the prosecutor unfairly commented on the petitioner’s failure to testify and misrepresented the testimony of the state’s expert, Ms. Byrne, by indicating that her interview of J.F. was conducted for health reasons. The court finds that defense counsel had no reasonable basis for interposing such objections because the challenged remarks were within the broad ambit of proper argument.

a.

A prosecutor may not draw specific attention to an accused’s failure to testify by using language " manifestly intended to be, or ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify," State v. Rowe, 279 Conn. 139, 160 (2006), (emphasis added). The crux of such impropriety is that the prosecutor " impl[ied] that the defendant’s silence was evidence of his guilt," Id., 161, (emphasis in original).

The petitioner submits that the prosecutor’s reference to the fact that the victim’s testimony regarding the sexual assaults was internally consistent and uncontradicted by other evidence amounted to underscoring the petitioner’s silence at his criminal trial. The prosecutor urged the jury to consider the following:

No person’s testimony here gave you any reason to disbelieve [J.F.], nor were you given any reason why the facts that she described could not have happened the way she described them.

No person’s testimony pointed to any reason for [J.F.] to lie.

No person’s testimony pointed to why [her] mother would have [J.F.] make false accusations.

The context for these remarks was that the state was arguing that the evidence that was presented ought to lead the jurors to conclude that the victim’s accusations were credible. On the heels of these comments, the prosecutor reminded the jurors of their duty:

To assess the credibility of all the witnesses;

If you find inconsistencies, decide if they’re important to the substance of the claim.

Decide if they’re innocent mistakes or lapses in memory.

Decide if they can be reconciled.

Clearly, the prosecutor’s argument focused the jurors’ attention on their obligation to evaluate the believability of J.F. in light of all the evidence admitted. It is unreasonable to assume that this argument was aimed at flaunting the absence of testimony from the petitioner. If every instance of the state arguing the weight of the evidence favored conviction comprised a violation of an accused’s right not to testify, fair summation would be a very brief and barren affair. " The accused, by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which the comment is made," State v. Rowe, supra, 160.

In State v. Rowe, supra, our Supreme Court rejected a claim of prosecutorial misconduct under circumstances much more compelling than that presented at the petitioner’s criminal trial. There, the state commented multiple times that only two or three persons present at the crime scene testified. The single person at the scene who did not testify was the defendant. The Supreme Court determined that these repeated observations " merely constituted proper statements in support and explanation of the state’s case," Id. The high court noted that the prosecutor " made no explicit mention of the defendant’s failure to testify," Id., 161.

The Supreme Court also elucidated that it was important that the trial court instructed the jury to draw no adverse inference from the defendant’s silence, Id. Likewise, the trial judge in the petitioner’s case charged the jurors that they " must draw no unfavorable inferences from the [petitioner’s] choice not to testify."

The court finds that these remarks by the state in final argument were fair comments on the evidence and unobjectionable. Defense counsel’s lack of objection was, therefore, proper and correct.

b.

The petitioner also decries Attorney Joiner’s failure to object to the prosecutor’s characterization of J.F.’s interview by Byrne as one performed to address the victim’s medical needs. During summation, the prosecutor asked the jurors to consider that the interview by Byrne was " one that’s used for the health of the child."

To place that quotation in context, one must also consider the argument surrounding that characterization. Just before the challenged comment, the prosecutor stated:

Now, this is an interview, but it’s not an interview by a law enforcement agency. It’s an- it’s not an interview to determine credibility. It’s a diagnostic interview.

A few sentences later, the prosecutor noted that Ms. Byrne’s task was for the purposes of " rapport building, closure, safety of the child, making the child feel safe and protected."

Also, during her testimony, Byrne pointed out, " I’m not a medical provider, so I would just provide the information that the child disclosed to me." Later, she stated, " I conducted a diagnostic interview with [J.F.]" and " I conducted a diagnostic interview on March 31, 2009." As mentioned earlier, Byrne also noted that she recommended counseling and medical services.

It must have been obvious to all who heard the state’s argument that the prosecutor never claimed that Byrne was a health care provider nor that she performed any medical or psychological services for J.F., nor that she drew any particular health-related conclusions about J.F. Instead, the prosecutor’s apparent purpose was to differentiate Byrne’s interview from the type of interview conducted by the police investigators. Byrne’s role was to ascertain J.F.’s version of what happened to her whether true, false, or fantasized, while law enforcement interviewers would seek information to corroborate or disprove the victim’s claims.

Viewed within the totality of the state’s evidence and argument, the isolated mischaracterization by the prosecutor appears to be one of ambiguity rather than misrepresentation. The court finds that the prosecutor’s imprecision was minor and that the lack of correction by defense counsel caused no prejudice for the petitioner.

5.

Failure to Present a Defense Expert

The petitioner’s final specification of ineffective assistance against Attorneys Joiner and Henry pertains to the fact that they presented no expert, such as Dr. David Mantell, in the petitioner’s defense. Dr. Mantell did testify at the habeas trial, and the court finds him to be a highly trained and experienced clinical psychologist in the field of treating abused children. He is very knowledgeable in the practice of forensic interviewing of children.

Attorney Joiner testified at the habeas trial that, because he had handled several sexual assault defense cases previously, he had gained a great deal of familiarity with forensic interview techniques for children and had also read literature dealing with that topic. He was acquainted with the concept of delayed reporting by child, sexual assault victims. Consequently, Attorney Joiner felt no need to consult with a child psychologist regarding J.F.’s forensic interview and Ms. Byrne’s opinions concerning delayed and/or incremental reporting of sexual abuse by child victims.

Dr. Mantell reviewed J.F.’s forensic interview, the criminal trial transcripts, DCF reports, and police reports. He acknowledged that Ms. Byrne employed the RATAC protocol with respect to J.F.’s interview and that that protocol was the standard regimen used in Connecticut for such interviews at the time. He noted that the RATAC protocol is no longer used in Connecticut, and that the RATAC methodology utilized anatomical images to elicit responses from children.

Dr. Mantell also opined that Ms. Byrne properly complied with the RATAC protocol for the most part. He did take issue however, with some aspects of her interview of J.F. Dr. Mantell felt that Byrne spoke to J.F. too rapidly. He criticized her use of " forced questions" ; that is, where the interviewer poses questions that limit the interviewee to make a " this or that" choice in response. He also thought that Byrne ought to have explored J.F.’s memory more thoroughly using details gleaned from J.F.’s previous statements and police reports. He would have preferred that Byrne test J.F.’s understanding of the conversational rules more extensively, namely that J.F. was to confine her responses to actual events without embellishment or deletions. Finally, he felt that a better approach to such interviews would include giving the child the opportunity to divulge alternative explanations for an accused’s behavior besides sexual gratification.

As to Ms. Byrne’s testimony at the criminal trial, Dr. Mantell took issue with her understanding regarding the frequency and extent to which child victims of sexual abuse disclose such abuse incrementally. Dr. Mantell testified that a large amount of recent research has called into question the belief that partial or incremental reporting is common. He stated that later studies have shown that partial disclosures, retractions, and additional reports seldom occur. On the other hand, Dr. Mantell concurred that delayed reporting has been substantiated as a commonplace feature displayed by abused children.

However, despite the above-listed criticisms, Dr. Mantell rated Byrne’s interview with J.F. a grade of " C," rather than as a failure.

The petitioner also presented the expert testimony of Attorney Vicky Hutchinson. She is an experienced criminal defense attorney who has also represented several clients charged with sexually abusing children. She opined that every defense attorney should always consult with an expert in the field of forensic interviewing of children. She opined that if the consultant identified flaws in the forensic interview methodology, defense counsel could use that information to persuade the prosecutor or sentencing authority to reevaluate proposed dispositions.

The benefit of use of an expert, and, therefore, the prejudicial effect of the failure to consult with and present the testimony of an expert, such as Dr. Mantell, was greatly diminished in the present case, however. This is so because the state never offered the forensic interview into evidence. Byrne’s testimony about what J.F. reported to her was restricted by application of the Troupe rule to that testimony. Byrne only testified about the fact J.F. reported unspecified acts of sexual abuse and that abused children sometimes delay disclosure of such events or reveal them piecemeal.

As related above, Dr. Mantell agreed with Ms. Byrne’s information that sexually abused children often delay reporting that abuse for a variety of understandable reasons, such as youthful ignorance, embarrassment, or fear. Disclosure tends to accompany the development of feelings of safety about the incident by the child.

Of more concern is Dr. Mantell’s discussion regarding the former belief that it is common for sexually abused children to report the details of such incidents incrementally. Dr. Mantell acknowledged that piecemeal disclosure occurs, but it is rarer than once believed. He opined that a majority of abused children disclose the core facts in their earliest accounts of the incident.

On the other hand, Erin Byrne also had extensive training and experience concerning forensic interviewing. She had interviewed between 250 to 300 children before her trial testimony. She explained to the jurors that she encountered cases of partial disclosure, that is " when a child tells ... pieces of their abuse, but not all of it." She derived from her experience that " making a disclosure is more of a process than event." She states that sometimes a child will " test the waters" to see how adults will react to the disclosure.

Byrne also communicated a related concept which is that children interpret certain acts as worse than others in a way that differs from how an older child or adult would interpret such acts. For example, children may regard their touching of the private parts of an adult as more innocuous and less offensive than if an adult touched their private areas. Later reports may include details that, to the child’s eyes, seemed insignificant. Also, children tend to answer only what is specifically asked of them. Until the pertinent question is posed, the information remains unspoken.

As recited above, the habeas court must assess the reasonableness of defense counsels’ actions or inactions from the attorney’s perspective at the time, without the benefit and clarity of hindsight. Had defense counsel considered information similar to that provided by Dr. Mantell, counsel would have faced a dilemma. Dr. Mantell agreed with Ms. Byrne regarding delayed reporting. Presenting such testimony would have bolstered Byrne’s testimony on that point, for the limited purpose of educating the jurors about later studies that questioned the frequency but not the occurrence of incremental disclosure.

Dr. Mantell never addressed whether it is possible to discern whether the presence or absence of factors, such as described by Byrne regarding partial disclosure, made J.F. more or less susceptible to incremental disclosure. Dr. Mantell never discredited Ms. Byrne’s opinions concerning the factors which could contribute to those cases where incremental reporting does occur.

Also, in order to attack the efficacy of Byrne’s forensic interview of J.F., defense counsel almost certainly would have opened the door to the admission of the recording of that interview into evidence before the jury. Any benefit of the Troupe restrictions would evaporate, and the jury would have heard J.F. describe the petitioner’s alleged assault once again and in greater detail. The court concludes that the petitioner has failed to meet his burden of proving either prong of the Strickland test as to this specification.

B.

Due Process Violation Claim

Having addressed the issue of the propriety of prosecutor’s final argument in earlier sections and determined that the prosecutor’s comments fell with the bounds of fair argument, the petitioner cannot prevail on this claim.

II

Habeas Case CV 13-4005076

In this action, the petitioner asserts that his defense counsel, Attorney Hume, represented him ineffectively with respect to his guilty pleas to sexual assault first degree and risk of injury to a minor in CR 09-631185. Specifically, the petitioner alleges that Attorney Hume was deficient by failing to advise him regarding the availability of jail credits; by failing to inform him adequately regarding the strengths and/or weaknesses of the evidence for and against him; by failing to retain an investigator and prepare his defense properly; by failing to engage in meaningful plea negotiations; and by failing to advise the petitioner adequately as to the consequences of his guilty pleas.

A.

Pretrial Preparation and Negotiations

The petitioner’s guilty pleas preclude his attempt to raise preplea, constitutional defects, such as ineffective assistance of counsel for failure to retain an investigator, to prepare for trial properly, or to engage in different plea negotiations. " A guilty plea represents a break in the chain of events which has preceded it in the criminal process," State v. Hanson, 117 Conn.App. 436, 456 (2009), (emphasis added). An accused who unconditionally pleads guilty " may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea," Id. " [T]he only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction," Id. (emphasis added).

The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97; State v. Banks, 24 Conn.App. 408, 412. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. Reed v. Reincke, 155 Conn. 591, 597; State v. Baez, 194 Conn. 612, 616 (1984), McKnight v. Commissioner, 35 Conn.App. 762, 764 (1994); cert. denied, 231 Conn. 936 (1994); State v. Niblack, 220 Conn. 270, 277 (1991). This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343 (1971), Reed v. Reincke, supra 601; Cajigas v. Warden, 179 Conn. 78, 81 (1979).

A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea. Our Supreme Court has addressed this issue, also. In Dukes v. Warden, supra, 343-44, the court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of pre-plea, constitutional deficiencies. See also McKnight v. Commissioner, supra .

Several federal court cases have arrived at the same conclusions. In Siers v. Ryan, 773 F.2d 37 (CA.3, 1985), cert. denied, 490 U.S. 1026, a federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel. The petitioner later pled guilty to a robbery charge. The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness. Id., 42.

In U.S. v. Greene, 722 F.Supp. 1221 (E.D.Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity. At p. 1222, the U.S. District Court held the petitioner’s guilty plea " bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered."

In U.S. v. Winfield, 960 F.2d 970 (CA.11, 1992), a petitioner tried to attack his conviction, followed a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations. At p. 974, fn.2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.

In Wilson v. U.S., 962 F.2d 996 (CA.11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain pre-plea issues. The U.S. District Court refused to conduct a habeas hearing and dismissed the petition. The U.S. Court of Appeals affirmed the District Court stating, " the court did not err in dismissing [the petitioner’s] claim, as it involved pre-plea issues, without conducting an evidentiary hearing." Id., 997.

In Fields v. Maryland, 956 F.2d 1290 (CA.4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea. He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings. The U.S. District Court dismissed the petition. The U.S. Court of Appeals upheld the dismissal indicating, " [i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation." Id., 1294. The court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and was unrelated to it, the merits of the petitioner’s claims need not be reached. Id., 1296.

Finally, in Taylor v. Whitley, 993 F.2d 325 (CA.5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery, and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense. The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition. The Court of Appeals stated that a " voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later juridical decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant’s counsel were incorrect." Id., 327.

In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim. The Court of Appeals rejected this argument stating, " the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Id., 329 (emphasis added). The court went on to indicate that the absence of advice regarding the double jeopardy issue " does not affect the voluntary and intelligent nature of his pleas." Id., 331. The Taylor case, supra, is significant in that it points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea. What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielding by entering the plea, such as the right to confront and cross examine witnesses. There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of pre-plea defects.

The federal cases cited above are consistent with and bolster the holding of Dukes v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.

Therefore, the petitioner cannot prevail as to these specifications of ineffective assistance.

B.

As to the remaining allegations of ineffective assistance, it must be observed that the United States Supreme Court has set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57 (1995). Under these cases, the habeas petitioner must show that, but for counsel’s unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty. Id., at 151; Carraway v. Commissioner, 317 Conn. 594, 600, fn.6 (2015).

1.

Jail Credit Advice

The petitioner was arrested on April 29, 2009, for sexually assaulting his daughter A.R. As recounted above, he was later arrested for the charges involving J.F. However, the state tried the petitioner before the jury for the case involving J.F., CR 09-0631346, before the case pertaining to his daughter’s accusations, CR 09-0631185. The petitioner posted bond in both cases.

After the jury verdict in CR 09-0631346, the petitioner received a total, effective sentence of ten years imprisonment and eight years special parole on November 18, 2010. On April 21, 2011, the petitioner pleaded guilty to charges in CR 09-0631185. On May 13, 2011, Judge Gold imposed a twelve-year prison term, concurrent to the earlier sentence.

Because the second sentence involved a longer prison term, it became the controlling sentence by virtue of G.S. § 53a-38(b), Bigelow v. Commissioner, 175 Conn.App. 206, 221-22 (2017). For the petitioner, the result was that his twelve-year sentence commenced on the day of sentencing, May 13, 2011. Thus, he received no jail credit for time he spent incarcerated for the ten-year prison sentence imposed about six months before.

The petitioner avers that, had he known of this system for calculating his combined sentences, he never would have pleaded guilty. At the habeas trial, the petitioner testified that Attorney Hume neglected to discuss this calculation with him. Attorney Hume testified he had no recollection one way or the other if this circumstance was discussed.

However, the court determines that the petitioner’s testimony that he would have proceeded to trial but for his ignorance of the actual sentence he would need to serve, is unworthy of belief. His habeas testimony is utterly undermined by the fact that Judge Gold expressly enlightened the petitioner to this reality on March 4, 2011.

Evidently, the prosecutor, Attorney Hume, and Judge Gold expected that the petitioner would plead guilty on that date. Instead, the petitioner balked and expressed a desire to fire Attorney Hume. Judge Gold explained the possible options to the petitioner and allowed the petitioner more time to consider the proposed disposition. As part of that endeavor, Judge Gold warned the petitioner as follows.

" THE COURT: Now, you also understand that the proposal that’s been made to you to resolve your second case would be a twelve-year prison term concurrent with the ten-year sentence you’re now doing? It would be a sentence that would not begin to run- the twelve years won’t begin to run, until the day your sentenced on. And it will sort of trump- it will become your operative sentence. So if you’re inclined to take this, and I’m not saying you should be or shouldn’t be, but if you’re inclined to take this, and are simply delaying that decision till a later date, every day that you wait to do it lengthens the amount of time you have to stay in prison because you’re not getting credit against that other file. And that twelve-year sentence won’t begin to run till the day you are sentenced.

I’m not saying that you should take it or not. But just understand that if you’re waiting and just going to wait for another month, well, that’s fine. You can wait."

The petitioner responded that he " understood" this admonition, among other things.

On April 21, 2011, the petitioner pleaded guilty, under the doctrine of North Carolina v. Alford, 400 U.S. 25 (1970). Judge Gold reemphasized that the twelve-year sentence would begin upon imposition, and the following colloquy ensued:

THE COURT: Now, do you understand that I will be imposing, if I go along with this, if I decide that this is appropriate, a twelve-year concurrent sentence. But do you understand that the Department of Corrections is going to determine the extent to which you have any pretrial credit against this sentence and my understanding of the Department of Correction rules and regulations is as follows: That anytime that you have been in prison so far on either this case or the other case that you went to trial on, none of that time will be credited against this twelve-year concurrent sentence. And this twelve-year concurrent sentence will not begin to run until the sentencing date which we’re going to agree on and which may not take place for a couple of months. Do you understand that?

THE DEFENDANT: I understand.

THE COURT: So although it’s a concurrent sentence this sentence will cause you to serve what in effect is consecutive time. And what I mean by that is a far longer period than you are serving as a result of the first conviction. Do you understand that?

THE DEFENDANT: Yes.

The court holds that the petitioner has failed to satisfy his burden of proving the prejudice component of the Strickland-Hill standard; namely, that a reasonable likelihood exists that he would have pursued a trial rather than pleaded guilty but for Attorney Hume’s failure to explain the true effect of his concurrent sentences.

2.

Remaining Allegations of Ineffectiveness

The petitioner contends that Attorney Hume inadequately explained the strengths and weaknesses of the state’s case and his defense when he advised the petitioner to plead guilty in exchange for the proposed disposition. Attorney Hutchinson also testified as a legal expert regarding Attorney Hume’s representation of the petitioner. Again, Attorney Hutchinson has vast knowledge and experience in the practice of criminal defense.

In the present case, Attorney Hutchinson never reviewed Attorney Hume’s file nor spoke to him about his representation of the petitioner. She observed that defense counsel should only attempt to negotiate a disposition after having thoroughly investigated the evidence in the case. She suggested that the preferred practice is to convey plea offers to a client both orally and in writing and to discuss offers with the client other than at the courthouse, where the client is subject to feeling intimidated by being in the prosecutor’s domain and with a judicial authority waiting in the wings.

She also testified that, where a client faces adjudication of two files for which the client has different counsel, it is incumbent upon both counsel to consult one another to explore mutually beneficial approaches to resolving the cases. However, Attorney Hutchinson voiced no opinions as to whether the failure to adhere to any of the above principles in the petitioner’s cases had any impact on the petitioner’s ultimate decision to plead guilty or whether Attorney Hume’s purportedly negligent advice had any bearing on that decision.

The court finds that Attorney Hume consistently and strongly urged the petitioner to accept Judge Gold’s indicated disposition soon after the jury found him guilty in that case. It was the petitioner who resisted acceptance and wavered about whether to gamble on the outcome of a second, jury trial, a bench trial, or to accept the twelve-year concurrent sentence. While Attorney Hutchinson’s opinions regarding her general approach to a case like the petitioner’s were insightful and proposed a better practice of law, the court cannot find it reasonably probable that, had Attorney Hume engaged in the preferred actions, the petitioner would have rejected the plea disposition nor that a more favorable disposition would have become available.

No evidence was adduced that the trial judge or the prosecutor were willing to consider any lesser sentence for the petitioner. Indeed, the prosecutor offered to recommend a fifteen -year prison term.

The petitioner had already experienced a jury trial on similar charges with a bad result. It appears much more likely that his decision to accept the proposed guilty plea disposition was induced by the ominous prospect of imposition of another lengthy and possibly consecutive sentence rather than any supposed misadvice by Attorney Hume.

At his plea canvass, the petitioner affirmed that he had sufficient time to discuss the case with Attorney Hume and that his change of plea was voluntary. The petitioner was a college-educated mechanical engineer and a former Army officer.

For these reasons, the court denies habeas corpus relief.