Opinion
No. CV 980417904
April 16, 2003
MEMORANDUM OF DECISION RE RESPONDENT'S PETITION FOR CERTIFICATION
Before this court is the respondent's Petition for Certification. In this Petition for Certification, the respondent seeks approval to appeal the decision of this Court issued on January 15, 2003 granting the petitioner's request for habeas relief.
In his Petition for Certification, the respondent states the questions presented for review:
I. Whether the habeas court's finding that trial counsel failed to meaningfully convey to the petitioner the State's Plea offer is clearly erroneous?
II. Whether the habeas court erred in finding that the petitioner established that his trial counsel's performance was deficient?
III. Whether the habeas court erred in finding that the petitioner established prejudice as a result of his trial counsel's deficient performance?
IV. Whether the habeas court erred in finding that the petitioner was denied the effective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ?
V. Such other claims as may be revealed upon an examination of the habeas trial transcript.
In light of certain arguments advanced by the respondent in its opposition to the petitioner's Motion for Bond, this court treats this memorandum as a decision regarding the Petition for Certification and as an Articulation of its original January 15, 2003 ruling. Specifically, this court addresses the respondent's contention, re-argued in its opposition to the petitioner's Motion for Bond, that this court applied the incorrect legal standard in determining that the petitioner had proven "prejudice."
For reasons more fully set forth in this decision, the court grants the petition for certification.
Connecticut General Statutes 52-470b provides that:
(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.
The Petition for Certification was timely filed, pursuant to General Statutes § 52-470 (b). Therefore, the sole question before this Court is whether certification should be granted because there is or are a question or questions involved in the decision of this case which ought to be reviewed by the Appellate Court.
Under Connecticut law, this court is required to thoughtfully consider a Petition for Certification. This requires more than simply "rubber stamping" the certification issue. Rather, a "searching inquiry" should be made by the Court to determine whether there is a question involved in the decision of this Court which ought to be reviewed by the Appellate Court.
In Copas v. Commissioner of Correction, 234 Conn. 139, 150-51 (1995), the Connecticut Supreme Court held that "[i]n enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals." See also, Simms v. Warden, 230 Conn. 608, 616. The test for determining whether a habeas appeal is frivolous is the one set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). An appeal is not frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. "Thus, if an appeal is not frivolous, the habeas court's failure to grant certification is an abuse of discretion." [Citations omitted; internal quotation marks omitted.] Id.
In the underlying habeas petition the petitioner's claim in the First Count that he was rendered ineffective assistance of counsel in the underlying criminal trial because his attorney failed to meaningfully convey to him the state's second plea bargain offer; and in the Second Count that he was rendered ineffective assistance of counsel after he was convicted in the underlying trial because his counsel failed to advise him of his right for sentence review and failed to apply for sentence review.
Though there were other grounds claimed as the basis for this assertion of ineffective counsel, the only one upon which the petitioner prevailed, in the First Count, was the one based on a failure to meaningfully convey the plea offer.
The respondent does not challenge the court's findings or conclusions regarding the Second Count.
The court granted the petitioner's request for relief relying on factual findings noted in the Memorandum of Decision. The respondent questions whether two of those factual findings were erroneous and whether two of the legal conclusions reached by the court predicated upon those factual findings were similarly erroneous. The court addresses the respondent's queries in the order in which they were presented.
Whether the court erred in finding that petitioner's trial counsel failed to meaningfully convey to the Petitioner, the state's plea offer
This is the central issue contested by the respondent during and after the hearing. The respondent believes, apparently and predictably, that the court is mistaken in reaching its factual conclusion that the petitioner's trial counsel failed to meaningfully convey to the petitioner the state's second plea offer. This is, however, a finding of fact. Therefore, unless it is wholly unsupported by the record, the appellate court is required to accept it. "A habeas court's findings of fact will not be disturbed unless they are clearly erroneous." Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147 (2000). As the Appellate Court described its role in evaluating whether a finding is clearly erroneous: "we are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion . . ." Evans v. Commissioner Of Corrections, 37 Conn. App. 672, 677 (1995).
Applying this standard, the question is: is there support in the record for the factual conclusion reached by the court? This Court has made a searching inquiry of the record and has determined that there is. The petitioner's testimony supports this conclusion, as does the testimony of another witness, the petitioner's mother, Theresa Sanders. The court could have rejected the petitioner's testimony as incredible, which the court did not. It is of interest to note that though the court could have rejected the petitioner's testimony, it would be pure speculation to determine what legal advice was conveyed to the petitioner because there were no facts introduced on this topic other than those provided by the petitioner. A meaningful conveyance of an offer requires informing the defendant of the attorney's evaluation of the options and determining which alternative will offer the defendant the most favorable outcome. See Copas v. Commissioner of Correction, 234 Conn. at 153 (1995). There is no indication in the record that Attorney Diette did this. Production of direct evidence, the lack of evidence, and circumstantial evidence are all appropriate bases for evidentiary conclusions. Therefore, there is support in the record for the factual finding that Attorney Diette failed to meaningfully convey to the petitioner the state's second offer.
As noted in the Memorandum of Decision the petitioner denied that he had been informed of the state's second offer at all. He also maintained that nothing had been explained to him: he testified that Attorney Diette had not explained to him certain evidence which the state had against him, namely the statements of two witnesses; he also testified that Attorney Diette had not explained to him what was likely to happen or the sentences he could be facing after the second trial; and the petitioner testified that Attorney Diette did not explain the plea offers.
The testimony of Ms. Sanders was not dispositive because she was not the client to whom Attorney Diette owed a duty and her son was over the age of 18. Nonetheless, her testimony that she was not aware of the state's second offer provides some support, albeit minimal, for the petitioner's position regarding the second offer.
As was stated in the Memorandum of Decision, there was absolutely no evidence which established that Attorney Diette explained to the petitioner the state's evidence; the likely outcome after trial; the advantages or disadvantages of going forward with the second trial; or the advice of counsel regarding the state's second offer. Though this court could have rejected the petitioner's proffer as not credible, there was no factual basis upon which to conclude that a meaningful explanation had been made. Further, there were no circumstantial indicia to support a conclusion that Attorney Diette had spent a sufficient time explaining to his client the second offer. Attorney Nicholson, who testified that Attorney Diette left to go and speak with the petitioner about the second offer, did not indicate the length of time that Attorney Diette was out of Judge Ronan's chambers. Nor did he (nor could he) testify as to what Attorney Diette said to the petitioner when he left to speak with him about the offer. Finally, there was no evidence to support the conclusion that the petitioner had taken the position prior to the second trial that he would refuse all offers regardless of their nature. The evidence only established that an offer was conveyed to Attorney Diette; that Attorney Diette left Attorney Nicholson and Judge Ronan purportedly to discuss it with his client; that Attorney Diette returned some time later and represented that the offer had been rejected. The evidence, notably, did not establish that the petitioner was in court on the day the second offer was extended. In fact, there was no conclusive evidence as to the date the second offer was extended. Nor did it establish how long counsel met with the petitioner, where he met with the petitioner or how he met with the petitioner. The problematic scenario here is that the court concluded that the petitioner had not established, by a preponderance of the evidence that Attorney Diette failed to convey any offer to him. Given his representation to the prosecutor and to the judge, this court assessed that it was more likely than not that Attorney Diette told the petitioner something about the second offer. However, this court ultimately concluded that whatever was told did not meet the standards required by the courts, given the other evidence, both direct and circumstantial. As the fact-finder sitting and hearing all the evidence, weighing the intangible nuances, evaluating the facts adduced at trial, I came to a determination. That determination was: yes, Attorney Diette may have talked to the petitioner, but no, he probably did not explain to the petitioner, in sufficient detail, what the second offer meant.
Certainly, a fact-finder could have reached a different conclusion. That is not dispositive. Certainly, the court in the instant matter found portions of the petitioner's testimony credible and other portions, not. This is not dispositive, either, since fact-finders may chose to believe testimony in whole or in part. The question is whether there is evidentiary support for the factual conclusion reached by the court. Only in the absence of such proof should the petition be granted on the first question. The record provides evidentiary support for the court's factual conclusion that Attorney Diette failed to meaningfully convey the state's second offer to the petitioner. Therefore, the petition for certification of the first query does not appear to present an issue meriting appellate review.
However, this court will concede, having read respondent's briefs that there is a quasi-legal question presented by its query. That question, though not posed, goes to the weight to be given presumptions of legal competence. For this reason, the court grants the petition for review. Though the query posited by the respondent does not present a question ordinarily meriting such, this court does not conclude that it is wholly frivolous. There is, possibly, an issue meriting appellate review. That issue is, what effect does the legal presumption of competence have when there has been a showing of professional incompetence? Accordingly, this court grants the respondent's petition for certification.
In the instant matter, this court found that the usual presumption of legal competence, which would have, in a more typical case, prevented it from finding in favor of the petitioner, was not dispositive here. Rather, because of evidence of professional incompetence in two other areas (regarding advisement of appellate and sentence review rights) this court could not conclude, merely on the basis of this presumption that Attorney Diette properly performed his legal duties. In the absence of this presumption, there was no evidence that Attorney Diette adequately informed and advised his client about the second plea offer. Thus there was a dearth of evidence that he properly performed his duties in this regard. In the absence of such evidence, only if the court found the petitioner lacking in credibility on this issue could it rule against the petitioner.
Whether the court erred in finding that the petitioner established that the attorney's performance was deficient
The court reached the conclusion that Attorney Diette's conduct was deficient because it found that the petitioner's attorney did not meaningfully convey to the petitioner the state's second offer. Above, this court has explained why this finding was supported by the record. For purposes of addressing this second query of the respondent, the court assumes, that its factual finding is not clearly erroneous. If petitioner's attorney did not meaningfully convey the state's second offer to the petitioner, then the question is: would there be any debate among jurist challenging the conclusion that an attorney performed his job incompetently when he failed to explain to his client, who was serving a 9-year sentence and facing the possibility of being sentenced to an additional 25 years in prison if convicted, the advantages and disadvantages of accepting an offer to plead to a sentence which would require him to serve only an additional three years. The petitioner's query suggests that this is a debatable issue among jurist; that an appellate court might find that this behavior, of a criminal defense attorney, was competent. There is no support for this in the case law, either of this state or in sister jurisdictions.
In Copas v. Commissioner of Correction, 234 Conn. at 153 (1995), the Connecticut Supreme Court explained that: "[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical states of criminal proceedings . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . ." The Copas Court went on the state that "[a]lthough this decision [of whether to accept a plea offer] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." Id. at 154.
There appears to be no question that once an attorney fails to provide adequate information and advice to his client during plea negotiations he fails to render effective counsel. Even the respondent has never seriously disputed this. In the post-trial brief, the respondent did not suggest, argue or proffer support for the position that if this court found that the attorney had not meaningfully conveyed the offer, then it could still find that the attorney's performance was competent. Rather, the respondent's position was that this court could only find that the petitioner was lying and therefore conclude that the petitioner's attorney had meaningfully conveyed the state's offer. There is not, nor could there be, a serious debate among jurist regarding whether or not an attorney who failed to meaningfully convey a plea offer to his client rendered ineffective counsel. Therefore, the query regarding professional competence does not present a question meriting appellate review.
Whether the court erred in finding that the Petitioner established prejudice
The establishment of prejudice, as discussed in the original memorandum of decision, required certain factual findings. Ultimately, based on the facts found, the court concluded that the petitioner had proven prejudice. The court had, for consideration on this issue, the petitioner's plain statement that he would have accepted the plea offer had it been meaningfully explained to him. This court found this testimony credible. That finding is not subject to review as it implicates the evaluation of a witness' veracity and truthfulness by the court, the sole fact-finder. The appellate court "does not retry the case or evaluate the credibility of witnesses . . . Rather, [it] must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." Colon v. Commissioner of Correction, 55 Conn. App. 763, 765 (1999).
The respondent argued that this court should apply a standard requiring more than the statement of the petitioner to support a finding of prejudice. Citing federal cases the respondent contends that a self-serving statement, standing alone is not sufficient. The respondent argued that the court could not rest its decision solely on the petitioner's testimony. The petitioner argued for the application of an objective standard. This court found that the appropriate test was the subjective one. See, Wieler v. Commissioner of Correction, 47 Conn. App. 59 (1997); Cimino v. Robinson, 6 Conn. App. 680, cert. denied 200 Conn. 802 (1986). Though this court found that, in this instance, the petitioner's testimony, was sufficient, even applying the federal standard, the decision of the court would have been the same. The testimony of the petitioner, taken together with the other objective evidence was sufficient to support a finding of prejudice. This court now expands and further articulates its reasoning in this regard.
It is a rule in federal case law that a petitioner's self-serving statement that he/she would have accepted the offer, standing alone is insufficient to support a finding of prejudice. Rather, the federal courts require, in addition to the petitioner's statement, some objective evidence to support the claim. See, Purdy v. U.S., 208 F.3d 41 (2nd Cir., 2000); U.S. v. Gordon, 156 F.3d 376 (2nd Cir., 1998); Toro v. Fairman, 940 F.2d 1065, 1069 (7th Cir., 1991); and Turner v. State of Tenn., 858 F.2d 1201 (6th Cir., 1988).
The petitioner argued that the court should evaluate what a reasonable person would have done, given the grand disparity between the actual time to serve if the second offer (3 years) was accepted and the actual time to serve following a conviction (25 years). The petitioner argued that this difference, alone, was sufficient to prove that the petitioner would have accepted the second offer, had it been meaningfully explained to him.
The respondent relies, principally, on a few federal court cases to support his position that this court erred in finding prejudice. See e.g., Purdy v. U.S., 208 F.3d 41 (2nd Cir., 2000); U.S. v. Gordoit, 156 F.3d 376 (2nd Cir., 1998); Toro v. Fairman, 940 F.2d 1065 (7th Cir., 1991); and Turner v. State of Tenn., 858 F.2d 1201 (6th Cir., 1988). Each of these cases states the proposition that a petitioner's self-serving statement that he would have accepted a plea offer, standing alone, is insufficient to support a finding that there was a reasonable probability that he would have accepted the offer. This proposition, taken without more discussion, seems to support the respondent's argument. An examination of the cases, themselves, however, reveals more. Though the federal courts are loath to accept only the statement of the petitioner that he would have accepted a plea offer, they are equally loath to disturb the findings of a trial court which determines that such statements made in the context of the totality of a case, are enough to prove prejudice.
Interestingly, the 6th Circuit appellate court concluded that it would be inappropriate to impose upon the petitioner the burden of proving that the trial court would have accepted the plea agreement. This is opposite to the conclusion reached by the Connecticut Appellate Court in Cimino v. Robinson, 6 Conn. App. 680, 683, cert. denied, 200 Conn. 802 (1986). In Cimino, the appellate court explicitly stated that without evidence that a trial court would have accepted the plea, the prejudice to the petitioner is merely speculative.
This court now directly addresses the case law cited by the respondent. Neither Toro nor Purdy are particularly helpful in deciding the instant matter because both are distinguishable from this case. In Purdy the trial court did not credit the petitioner's testimony that he would have accepted the plea offer. The court found in that case that the attorney had properly advised the client, and that the client had made an informed decision to have a trial. In Toro, the petitioner never testified that he would have accepted the plea offer. This claim, which was only made by Toro's counsel in post-hearing briefs, was deemed "self-serving" by the court. In the instant case, the petitioner did testify that he would have accepted the second offer and the trial court found that he had not been fully informed about the second offer by his attorney.
The other two cases relied upon by respondent illustrate that though the objective and subjective standard is to be applied to cases involving a claim that the petitioner would have accepted a plea offer, this standard is more easily met than respondent would have the court believe. These cases also establish that the trial court's consideration and determination of whether the test is met is entitled to a great deal more deference than the respondent wishes to acknowledge. Objective evidence, such as a disparity between what the petitioner was actually exposed to at trial and what his lawyer explained to him was his exposure, is sufficient to support a petitioner's subjective testimony that he would have accepted the offer. See, Gordon, 156 F.3d 376 (2nd Cir., 1998). Interestingly, the federal appellate courts repeatedly defer to the judgment of the trial court in determining whether there is sufficient "objective" evidence to support a finding. In Turner, the trial court considered as objective evidence the fact that the petitioner had made a counter-offer; and the fact that the difference between the counter-offer and the offer, in actual time to serve was minimal. The Turner trial court also "concluded on the basis of proof at the hearing and of `the Court's own observations during the course of litigation,' that Turner at all times appeared to be under [his attorney's] control." Id. at 1206. It is the totality of the evidence, the weight accorded the evidence, and the trial court's unique assessment of them, which may provide the basis for a finding that the necessary objective evidence was presented.
Applying the federal standard, this court would still find for the petitioner. His testimony was credible. In addition, the objective evidence of the difference between the time he would have received pursuant to the plea offer and the time he was exposed to if he was convicted was substantial. Also, the relative strength of the state's case, and the absence of a showing that the petitioner stated clearly and unequivocally that he refused to entertain any offer and wanted only a trial, provide further objective support. Finally, the fact, which was acknowledged by the petitioner that he would likely be found guilty of the weapons possession charge (which carried with it a mandatory minimum of 5 years), as he had no defense to it, provides another objective fact supporting his contention that he would have accepted the plea offer if he had been adequately informed. There were other, meaningful observations of this court which played a role in its reaching the conclusion. Those observations, the subjective representations and the objective facts are all sufficient to meet the federal standard and support the court's conclusion that the petitioner had proven he would have accepted the second offer.
Therefore, either applying the subjective standard, which calls for the evaluation of the credibility of the petitioner; or applying the federal standard, which requires subjective and objective evidence, the evidence in this case supports the court's conclusion that the petitioner would have accepted the state's second offer had he been adequately informed. For this reason, respondent's query is not entitled to appellate review because even if the appellate court were to adopt the federal standard, application of that standard would not change the outcome of the case.
This court found, applying Connecticut law, that the second finding necessary to decide the issue of prejudice was whether it was likely that a court would have sentenced in accordance with the plea agreement. This was an issue addressed in the Memorandum of Decision, but neither briefed nor raised by either party. Here, again, the record supports the court's conclusion. In fact, there is no evidence or case law cited to or relied upon by either party which would support the opposite conclusion. Given this, the court's finding that the petitioner established prejudice is fully supported by the law and the record. For this reason, too, the query does not appear to merit appellate review.
The one case cited which addresses this issue, was Turner v. State of Tenn., 858 F.2d 1201 (6th Cir., 1988). The respondent cited that case for a different proposition. In that case, the federal appellate court declined to require that the petitioner prove that the court would have accepted the plea agreement. The court, in that decision, noted that to do so would place an undue and unfair burden on the petitioner.
Whether the court erred in finding that Petitioner was denied effective counsel under Strickland
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense. This is commonly referred to as the "cause and prejudice" requirement.
"To satisfy the first prong of the Strickland test, the petitioner must show that the representation fell below an objective standard of reasonableness, considering all of the circumstances . . . Our Supreme Court has interpreted this to mean that trial counsel made errors so serious that he or she was not functioning as counsel guaranteed by the constitution." (Internal Citations omitted.) Rodriguez v. Commissioner of Correction, 57 Conn. App. 550, 553, 749 A.2d 657 (2000).
This court has already addressed the issue of whether the petitioner proved deficiency. The court found that the petitioner's lawyer failed to discuss and advise the petitioner of the state's second offer. This failure is proof of professional misconduct. The court also found that the petitioner proved prejudice in establishing, factually, that he would have accepted the state's offer had he been adequately advised; and that the Court would have accepted the plea agreement of the parties and sentenced in accordance with it. These conclusions lead to the inescapable legal conclusion that the petitioner has established deficiency and prejudice. Only if the factual underpinnings for this conclusion are found to be erroneous, can the legal conclusion be incorrect. The factual issues upon which this conclusion is based are discussed in other sections of this memorandum. If those factual conclusions were erroneous, then the respondent would have been entitled to the granting of its petition on those grounds. However, as previously discussed this court finds that the record supports its factual conclusions. The legal conclusion, based on those facts, is sound. There would be no debate among jurist regarding whether or not the petitioner had established cause and prejudice based upon the facts found by this court. Thus, the respondent's fourth query does not present a question meriting appellate review.
CONCLUSION
Because this court finds that the petition for certification presents an issue meriting appellate review it is granted.
Robinson-Thomas, J.