Opinion
CV154006849S
07-13-2018
Heather SCOTT v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
On December 9, 2014, the petitioner, Heather Scott, filed a petition for a writ of habeas corpus, which was amended by assigned counsel on January 10, 2018. The amended petition raises claims in two counts and challenges the petitioner’s conviction in docket number CR12-0161563-T, judicial district of Hartford, following her guilty plea on January 31, 2014, to the charge of risk of injury to a minor in violation of General Statutes § 53-21(a)(1). The petitioner was sentenced in accordance with the plea agreement to a total effective sentence of seven years to serve, execution fully suspended, with five years of probation.
The petitioner alleges in her amended petition for a writ of habeas corpus that attorney Dennis P. McMahon provided ineffective assistance of counsel and thereby rendered invalid her guilty plea. More specifically, the petitioner alleges that attorney McMahon failed to: (a) conduct an adequate investigation into the allegations in this case; and (b) effectively communicate with her, including regarding the elements of the offense charged, the evidence against her, the nature of her plea, and the collateral consequences of the plea agreement. The petitioner further alleges separately that her plea was not knowing, intelligent, or voluntary. As relief, the petitioner requests that the habeas court direct the sentencing court to vacate the judgment of conviction and reinstate the matter to the trial docket, release her from confinement and/or her probationary period, and such other relief as deemed equitable and just. The respondent’s return denies the petitioner’s allegations that counsel were ineffective and leaves her to her proof. The return also asserts procedural default as an affirmative defense to the claim that the plea was not knowingly, intelligently, and/or voluntarily entered. The petitioner’s reply to the return asserts ineffective assistance of counsel as the cause and prejudice for any procedural default.
The parties appeared before the court on April 10, 2018, for a trial on the merits. The petitioner was the sole witness to present testimony. The parties also entered documents, consisting primarily of transcripts, decisions from appeals and court documents, into evidence.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
DISCUSSION
I. Standard for Claims of Ineffective Assistance of Counsel Arising Out of a Guilty Plea
"[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], [courts] apply the two-part test annunciated by the United States Supreme Court in Strickland and Hill ... In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. Strickland v. Washington, [ 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ... Under the test in Hill, in which the United States Supreme Court modified the prejudice standard of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, [ 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ] ...
"To satisfy the performance prong under Strickland-Hill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ...
"To satisfy the prejudice prong [under Strickland-Hill ], the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial ..." (Citations omitted; internal quotation marks omitted.) Clinton S. v. Commissioner of Correction, 174 Conn.App. 821, 827-28, 167 A.3d 389, cert. denied, 327 Conn. 927, 171 A.3d 59 (2017).
The Strickland/Hill test necessitates, therefore, that the petitioner first prove deficient performance by counsel and then that such deficient performance caused prejudice. Failure to prove deficient performance inherently means no prejudice, as it is the deficient performance that must prejudice the defense or negatively affect the outcome. Strickland v. Washington, supra, 466 U.S. 687. A petitioner’s inability or failure to prove prejudice inherently means that the petitioner has failed to prove ineffective assistance, as both prongs must be proven. Because a petitioner must prove both prongs, it is well established that a habeas court may deny ineffective assistance claims if a petitioner fails to prove either prong. See, e.g., Thompson v. Commissioner of Correction, 131 Conn.App. 671, 691, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011) ("Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong"); King v. Commissioner of Correction, 73 Conn.App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003); Denby v. Commissioner of Correction, 66 Conn.App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).
II. Procedural History and Underlying Facts
"In March 2012, the [petitioner] and Cory T. brought [a minor] child, [Zen T.], who was less than three months old, to the emergency room because his left leg was swollen. An X-ray, CAT scan, and MRI were conducted, which revealed that [the child] had sustained at least eight fractures, two additional long bone irregularities ... as well as bilateral chronic subdural hematomas, for a total of eleven injuries. These injuries occurred on multiple occasions over a time period of at least three weeks. In addition, [a]ll of the injuries resulted from trauma which could not have occurred during the normal handling of an infant; nor could [the child], who at three months of age was unable to stand, crawl, or even roll over, have accidently injured himself." (Internal quotation marks omitted.) In re Zen T., 149 Conn.App. 376, 88 A.3 1286, cert. denied, 312 Conn. 911, 93 A.3d 593 (2014).
These facts were summarized by the Appellate Court in the petitioner’s appeal from termination of her parental rights. There have been additional proceedings and appeals. See In re Zen T., 151 Conn.App. 724, 95 A.3d 1258, cert. denied, 314 Conn . 911, 100 A.3d 403 (2014), cert. denied, sub nom. Heather S. v. Commissioner of Children & Families, 135 S.Ct. 2326, 191 L.Ed.2d 991, 83 U.S.L.W. 3856 (2015); In re Zen T., 165 Conn.App. 245, 138 A.3d 469, cert. denied, 322 Conn . 905, 138 A.3d 934 (2016).
The petitioner was charged in a substitute information, docket number CR12-0161563-T, judicial district of Hartford, with one count of risk of injury to a minor in violation of General Statutes § 53-21(a)(1). On January 31, 2014, the petitioner pleaded guilty under the Alford doctrine to that one count of risk of injury. Petitioner’s Exhibit 1 (Transcript, January 31, 2014), p. 1. The court, Alexander, J., and defense counsel, attorney Dennis McMahon, expected the matter to be disposed of that day and for the petitioner to be sentenced. Id., 2-3. However, the prosecutor requested a continuance for sentencing and so that the state could prepare a standing criminal protective order it was also requesting. Id. Judge Alexander permitted the parties to discuss the matter further. Id. After the matter resumed, attorney McMahon asked that the court to permit the petitioner to withdraw her prior pleas. Id., 4. The petitioner again entered a plea of guilty pursuant to the Alford doctrine. Id. The plea agreement with the state would result in the petitioner receiving a total effective sentence of seven years of incarceration, execution fully suspended, with five years of probation.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, L.Ed.2d 162 (1970). "Under North Carolina v. Alford ... a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ..." State v. Wheatland, 93 Conn.App. 232, 234 n.1, 888 A.2d 1098, cert. denied, 277 Conn . 919, 895 A.2d 793 (2006).
The court conducted a thorough canvass and addressed several issues particular to the petitioner’s case, including that the first plea was interrupted because the state was requesting a standing criminal protective order to protect the minor victim. Id., 6. Judge Alexander specifically referenced the then pending appeal the petitioner was pursuing from the termination of her parental rights and how, if the petitioner prevailed and the appeal resulted in a reversal of the decision to terminate her parental rights, the criminal protective order would need to be modified. Id. The prosecutor for the record restated the facts in support of the charge. Id., 8.
After completing the canvass, the court found the petitioner’s plea to be voluntary, knowing, with a factual basis and with the assistance of competent counsel. Id., 11. The matter was continued for the preparation of a presentence investigation (PSI) report and sentencing.
"It is well established that ‘[a] trial court "may properly rely on ... the responses of the [defendant] at the time [she] responded to the trial court’s plea canvass ..." Bowers v. Warden, [19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn . 817, 565 A.2d 534 (1989) ]; see also State v. Williams, 203 Conn. 159, 170, 523 A.2d 1284 (1987).’ State v. Casado, 42 Conn.App. 371, 377, 680 A.2d 981 (trial court properly relied on defendant’s representations that he was not forced into entering plea), cert. denied, 239 Conn . 920, 682 A.2d 1006 (1996)." State v. Silva, 65 Conn.App. 234, 252, 783 A.2d 7, cert. denied, 258 Conn . 929, 783 A.2d 1031 (2001). See also In re Kaleb H., 131 Conn.App. 829, 838-39, 29 A.3d 173 (2011), aff’d, 306 Conn . 22, 48 A.3d 631 (2012); State v. Collazo, 113 Conn.App. 651, 663 n.6, 967 A.2d 597, cert. denied, 293 Conn . 904, 976 A.2d 705 (2009).
On March 28, 2014, the petitioner appeared before the court for sentencing. Petitioner’s Exhibit 2 (Transcript, March 28, 2014). The petitioner requested permission to withdraw her Alford plea on the ground that she did not understand what she was doing when she entered her plea. Id., 2. Judge Alexander and the petitioner engaged in a colloquy about the petitioner’s concerns, which centered on how the criminal conviction might impact the pending appeal from the termination of parental rights case. Id., 3. Judge Alexander offered to note for the record that in addition to being an Alford plea, the court would add that the plea was also a nolo contendere plea so that it could not be used against the petitioner. Id., 3-4. The proceedings were then recessed so that Judge Alexander could playback the plea canvass and the January 31, 2014, proceedings. Id., 5-6. After the playback, the court indicated that there was no legal basis to permit the petitioner to withdraw her plea. Id., 7, 10. After further discussions between the court, the petitioner and her attorney, as well as all sentencing remarks, Judge Alexander sentenced the petitioner in accordance with the plea agreement. Id., 8-23.
III. Count One- Ineffective Assistance of Counsel
The petitioner first claims that attorney McMahon rendered ineffective assistance of counsel. She alleges that trial counsel failed to conduct an adequate investigation into the allegations of the case, and failed to effectively communicate with her regarding the elements of the offense charged, the evidence against her, the nature of her plea, and the collateral consequences of the plea agreement. The petitioner has not met her burden of proof as to these allegations.
"Inadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland, as ‘[c]onstitutionally adequate assistance of counsel includes competent pretrial investigation.’ Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). Although [courts] acknowledge that ‘counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it’; (internal quotation marks omitted) Gaines v. Commissioner of Correction, [ 306 Conn. 664, 683, 51 A.3d 948 (2012) ]; ‘[e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.’ (Internal quotation marks omitted.) Id., at 680, 51 A.3d 948. ‘In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ " (Internal quotation marks omitted.) Id. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). "The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense." State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006); State v. Greene, 274 Conn. 134, 143-44, 874 A.2d 750 (2005).
The petitioner was the only witness to present testimony at the habeas trial. The petitioner offered her present-day rendition of the facts and circumstances surrounding the injuries to the victim. According to the petitioner, she was not satisfied with counsel’s representation. Attorney McMahon did not give her any advice regarding collateral consequences, did not listen to her, and pushed her into pleading guilty. The petitioner proclaimed that had counsel better investigated and advised her more appropriately, then she would have gone to trial. Although the plea transcript clearly indicates that Judge Alexander informed the petitioner that the offense she was pleading to is a felony, Petitioner’s Exhibit 1 (Transcript, January 31, 2014), p. 2, the petitioner testified before this court that she did not know the offense was a felony until subsequent to the criminal proceedings.
The petitioner further testified that at the time of the plea she understood the Alford plea to not be a plea of guilty. Instead, according to her current remonstrations, an Alford plea is a not guilty plea. However, when Judge Alexander asked the petitioner whether she was pleading guilty or not guilty to the risk of injury to a minor offense, the petitioner in her own words responded "Guilty." Id., 4. The court thereafter questioned the petitioner about what she understood when she said "guilty" in the context of an Alford plea. Id., 5. The petitioner’s responses to the court during the plea canvass are now entirely renounced by her habeas testimony. On cross examination, the petitioner could not recall questions or colloquy during the plea canvass that stand in stark contradiction to her claims. The petitioner did not recall that the offense she pleaded to is a felony offense and that the court explicitly informed her of that fact.
The court finds that the petitioner’s testimony is simply not credible. The petitioner has failed, therefore, to present any credible evidence in support of her claims that attorney McMahon was deficient. Additionally, the petitioner’s assertion that she would have proceeded to trial is also not credible, which leads this court to the additional conclusion that the petitioner, even if this court were to presume deficient performance by counsel (which it does not), has not shown the necessary prejudice.
Count Two- Plea Was Not Knowing, Intelligent, or Voluntary
The petitioner’s second and only other claim is that the record does not unequivocally establish that she knowingly, intelligently, and voluntarily entered into the plea. In support of this claim the petitioner further asserts that she was not properly advised regarding the elements of the offense charged, the evidence against her, the nature of the plea, and the collateral consequences of the plea agreement. These purported errors resulted in a violation of her right to due process. The respondent’s return raises procedural default as an affirmative defense to this claim because the petitioner did not first raise the claim with the trial court or on direct appeal. The petitioner’s reply denies that she has procedurally defaulted and asserts as cause and prejudice ineffective assistance of counsel, premised on the identical grounds asserted in count one.
"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that [s]he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and [s]he must show that [s]he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), aff’d on other grounds, 321 Conn. 56, 136 A.3d 596 (2016).
" ‘The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.’ (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).
" ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’ (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, [ 285 Conn. 556, 568, 941 A.2d 248 (2008) ]." Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
Applying this standard, the court concludes that the petitioner has failed to present any credible evidence to show the cause and prejudice and, therefore, must be found to have procedurally defaulted as to the due process claim in count two. There is no credible evidence of deficient performance by attorney McMahon, nor how the petitioner was prejudiced if there were deficient performance. Even if the petitioner were not procedurally defaulted, the due process claim in count two would fail because there is no credible evidence, and thus not a preponderance of the evidence that proves a due process violation.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.