Opinion
No. CV 05 4000645 S
May 7, 2009
MEMORANDUM OF DECISION
The petitioner, John Silva, filed a petition for a writ of habeas corpus on September 9, 2005, challenging the legality of his detention. The petitioner was charged with murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217. On October 29, 1999, he pleaded guilty on an amended information to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a in exchange for a recommended sentence of twenty-eight years incarceration. The petitioner waived a pre-sentence investigation and the court, Clifford, J., sentenced the petitioner in accordance with the agreement to twenty-eight years incarceration. The petitioner was represented throughout these proceedings by attorney Sara Bernstein. No appeal was taken from the conviction.
In an amended petition filed September 8, 2008, the petitioner alleges that his conviction was the result of ineffective assistance of counsel in that attorney Bernstein failed to (1) request a mental health exam despite the requests of the petitioner, (2) investigate a possible theory of self-defense, (3) fully explain to the petitioner the consequences of waiving a pre-sentence investigation, and (4) apply for sentence review. He also alleges that his due process rights were violated in that neither his guilty plea nor his waiver of the presentence investigation were made knowingly, intelligently and voluntarily. In a return dated October 10, 2008, the respondent denied the material allegations of the petition.
The matter came before the court for a trial on the merits on January 27, 2009. Testifying were attorney Bernstein, Dr. Donald Grayson, an expert in psychology, and the petitioner. The parties submitted numerous exhibits, including a transcript of the plea hearing, police reports, Dr. Grayson's report after interviewing the petitioner and many medical and psychological records both from the department of correction and from when the petitioner was a child.
FINDINGS OF FACT
The petitioner's charges arose from the shooting of Luis Figueroa on August 6, 1999. The likely evidence at trial would have revealed that the petitioner had been harassed and robbed by Figueroa multiple times in the several weeks prior to the incident. On August 6, 1999, the petitioner was drinking and smoking marijuana with his friends in the back of a building at 55 Evergreen Avenue in Hartford. The petitioner had previously obtained a gun from a friend for the purpose of protecting himself from Figueroa. Figueroa walked up the driveway and around back at 55 Evergreen Avenue and accosted the petitioner, taunting him and "mushing" or pushing on his head. The petitioner retrieved the gun and pointed it at Figueroa. Figueroa continued to taunt the petitioner and took a step towards him, at which point the petitioner fired the gun, striking Figueroa in the torso. The petitioner fired again but the gun jammed, and the petitioner re-cocked it and fired a second time, again striking Figueroa in the torso. Figueroa began running around the corner and down the driveway, and the petitioner gave chase and fired two more times in the middle of the driveway, striking Figueroa in the back both times. The petitioner then fled over a fence in the backyard, and Figueroa stumbled out into the street where he was aided by pedestrians and taken to the hospital, ultimately expiring from the gunshot wounds.
The evidence against the petitioner was compelling: several witnesses gave statements to the police, reporting having heard "pops" or "bangs" they initially believed to be fireworks around the time of the shooting, then seeing Figueroa run out into the street. The mother of the petitioner's child, with whom he had lived on the third floor at 55 Evergreen Avenue until recently, stated that she heard the shots and soon after received a call from the petitioner telling her to leave the apartment with their child because he had just shot someone. The first-floor tenant of the building stated that he heard the shots, then saw Figueroa running down the driveway with the petitioner, whom he recognized from living upstairs, giving chase and firing two shots. Several other witnesses stated that the petitioner talked about committing the shootings. When apprehended by the police the day after the shooting, the petitioner led them to the place where the gun used in the shooting was and confessed to committing the shooting. He voluntarily waived his Miranda rights and signed a written confession.
The petitioner testified to having a number of serious childhood traumas and a history of psychological problems including hallucinations, nightmares and intense depression. He was afraid of Figueroa, and did not contact the police in response to the robberies and harassment because of this. He had requested a competency and psychological examination from attorney Bernstein prior to his plea, but, he claimed, she ignored his requests. He testified that Bernstein did not discuss with him the possibility of such a pre-plea psychological investigation.
Dr. Grayson testified that he interviewed the petitioner prior to the habeas trial and reviewed the available psychological reports. On this basis, he concluded that the petitioner was deeply troubled and suffered from post-traumatic stress disorder, depression, learning disorders, and attention deficit hyperactivity disorder, among others. He also testified that the petitioner likely would have been suffering from these disorders at the time of the shooting, that the petitioner should have been on medication at the time, and that the ingestion of alcohol and drugs would have further impaired his judgment and impulse control. He also testified, however, that it was difficult to determine someone's mental state three years prior, and that he was "not good at retrospective assessments."
Attorney Bernstein testified at the habeas trial that she did not have a formal psychological evaluation of the petitioner conducted, but that she did have a social worker meet with him several times to determine his competency, and obtained his psychiatric history. The investigator found no competency issues and the petitioner appeared to understand questions and engage in meaningful conversation. She testified that she considered an extreme emotional disturbance defense, but that even if this was successful, the best the petitioner could hope for was a conviction on manslaughter in the first degree with a firearm, on which he faced up to forty years in prison. She also considered a theory of self-defense, but concluded that it would be unavailing based upon the type and amount of force used, the petitioner's failure to retreat despite his duty to do so, and the fact that Figueroa did not display a gun. By pleading to manslaughter, the petitioner avoided the murder conviction as a certainty and also avoided the weapon possession charge. She felt that the state had a strong case and advised the petitioner to accept the plea offer. Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008). "[U]nder the test in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong 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." (Internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008). Furthermore, Hill requires that a petitioner show he would have been "successful at trial"; "`[s]uccessful at trial' means a more favorable outcome than that achieved in the pleading process. See Copas v. Commissioner of Correction, 234 Conn. 139, 157 n. 10, 662 A.2d 718 (1995)." Brandy v. Commissioner of Correction, 89 Conn.App. 387, 393 n. 5, 873 A.2d 1061 (2005).
There is no question, nor would there have been at trial, that the petitioner shot the victim. Several eyewitnesses identified him as the shooter, several more testified to having heard him admit to the shooting, and the petitioner aided the police in retrieving the gun used and signed a voluntary statement to police admitting to the shooting. The petitioner's only potential defenses, therefore, were either self-defense or extreme emotional disturbance.
Attorney Bernstein testified that she considered pursuing a theory of self-defense, but concluded that it was not viable given the facts of the case. Such strategic decision is entitled to great deference by this court. Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) ("As a general rule, a habeas petitioner will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there [was] no . . . tactical justification for the course taken") (internal quotation marks omitted). On the record before this court, it appears that attorney Bernstein's rejection of a self-defense theory was a prudent tactical decision. The petitioner was in the backyard of an apartment he no longer resided in and made no attempt to retreat. Although the petitioner claimed that Figueroa pushed or "mushed" his head, there was no hint of deadly force in any of Figueroa's actions, and the petitioner fired the gun without being in any immediate danger. See General Statutes § 53a-19. Moreover, he had to pause to re-cock the gun in between shots, then chased Figueroa down and shot him twice in the back as he fled. See State v. Morgan, 86 Conn.App. 196, 209, 860 A.2d 1239 (2004), cert. denied, 273 Conn. 902, 868 A.2d 746 (2005) ("If the degree of force used is excessive or unreasonable, in view of all the circumstances, the defendant is not entitled to the defense of self-defense") (internal quotation marks omitted). A claim of self-defense would have been bound to fail, and there was neither deficient performance nor resulting prejudice from the failure to pursue this claim.
General Statutes § 53a-19 provides in relevant part: "(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
"(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor . . . or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform."
The only other option, then, would be to pursue an extreme emotional disturbance defense. The crux of this claim is that attorney Bernstein was ineffective for failing to investigate his psychological defects for use in an extreme emotional disturbance defense. "[W]here the alleged error of counsel is a failure to investigate . . . the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." (Internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 156-57, 662 A.2d 718 (1995).
"In determining whether the defendant has established the affirmative defense of an extreme emotional disturbance by a fair preponderance of the evidence as a mitigation of murder to manslaughter, the trier of fact must find that: (a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act." (Internal quotation marks omitted.) State v. Madigosky, 291 Conn. 28, 39-40, 966 A.2d 730 (2009).
The petitioner patently has considerable psychological maladies, many of which can be traced to unfortunate childhood traumas. This court credits Dr. Grayson's testimony as far as it goes; this court is wary, however, of relying too heavily on a psychological evaluation performed nearly ten years after the time period at issue, in the shadow of a trial of which the petitioner is acutely conscious, and when the reviewing clinician concedes that he is "not good at retrospective assessments."
Regardless, this court need not engage into an inquiry into the petitioner's mental state when he committed the shooting. Even if this court were to credit Dr. Grayson's testimony in full and conclude that, had attorney Bernstein conducted a psychological examination, the petitioner would likely have been successful in establishing at trial that he was under the influence of an extreme emotional disturbance at the time, he has failed to demonstrate that he was prejudiced. Were the petitioner to go to trial and successfully assert his extreme emotional disturbance defense, he faced forty-five years on the charges of manslaughter in the first degree with a firearm and criminal possession of a firearm, of which seven years were a nonsuspendable mandatory minimum. There is no basis for this court to conclude, simply on the assumption that he had gone to trial and been convicted of the same crime to which he pleaded, plus the additional crime of criminal possession of a firearm, that he would have received a sentence of less than twenty-eight years to serve. Indeed, the very best the petitioner could have hoped for in such a scenario would have been twenty-two years to serve, only six less than he ultimately received. Conversely, he risked receiving an additional seventeen years if he proceeded to trial, and risked even more if convicted of murder. Attorney Bernstein considered this defense, but concluded that the twenty-eight-year offer was a more favorable alternative. Her advice to the petitioner to accept the plea offer, and, consequently, her failure to conduct a psychological evaluation, was not deficient. Moreover, the petitioner has failed to demonstrate how he was prejudiced by the failure to conduct a psychological examination, and his claim of ineffective assistance of counsel fails.
It is worth noting in this regard that the petitioner was arrested on August 7, 1999 and pleaded guilty on October 29, 1999, a span of just under three months. Had the petitioner elected to go to trial, his attorney would have had ample time to investigate further, including a psychological examination for the purposes of an extreme emotional disturbance defense.
The petitioner's next claim is that his counsel was ineffective in failing to ensure that his pleas were made knowingly, intelligently and voluntarily. This claim, however, fails for the same reasons noted above. Even if the court were to assume arguendo that the petitioner did not enter the pleas knowingly, intelligently and voluntarily and that this was the result of counsel's deficient performance, the petitioner cannot demonstrate prejudice because he has failed to demonstrate that, had he not pleaded guilty and gone to trial, he would have achieved a more favorable result than the sentence to which he pleaded. Therefore, this claim must fail.
The petitioner next argues that counsel was ineffective in failing to have his competency evaluated prior to the plea. Attorney Bernstein testified that she spoke with the petitioner on several occasions, that he appeared to comprehend everything, engaged in meaningful conversation and asked relevant questions. Her investigator and a social worker also did not perceive any competency issues, and there was no indication that he was not competent to stand trial or understand the charges against him. During the criminal proceedings, the petitioner was on medication that helped curb his depression and stabilize his mental state. Dr. Grayson did not conclude that the petitioner was not competent to stand trial. Despite the petitioner's mental problems, there was no indication whatsoever that the petitioner could not understand the proceedings against him. "A defendant who suffers from a mental or emotional impairment is not necessarily incompetent to enter a guilty plea . . ." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 451-52, 936 A.2d 611 (2007). There was, therefore, no deficient performance on the part of attorney Bernstein, nor was there prejudice even if deficient performance were to be presumed, and this claim must fail.
The petitioner's next claim is that his attorney was ineffective in failing to ensure that he voluntarily waived a presentence investigation. Attorney Bernstein did not testify that she made a strategic choice to waive the pre-sentence investigation, and the petitioner was not actually informed or aware of his right to one beforehand. See Vazquez v. Commissioner of Correction, 107 Conn.App. 181, 186-87, 944 A.2d 429 (2008) (deference not given to actions of counsel that are not product of tactical or strategic decision). Moreover, the record suggests that the pre-sentence investigation, if anything, might have been helpful. The petitioner's extensive history of abuse and trauma, in the absence of serious prior convictions aside from larceny car theft, possession of heroin and a failure to appear, might conceivably have achieved the petitioner a lesser sentence.
Nevertheless, the petitioner has simply not met his burden of proving, by a preponderance of the evidence, that his sentence would have been reduced below the plea agreement he voluntarily accepted. Attorney Bernstein did present the petitioner's personal history and his version of the crime during pretrial negotiations, which was instrumental in securing the twenty-eight-year offer. She also, prior to sentencing, informed the court of the petitioner's difficult childhood and psychological problems, noting that "because we're waiving the PSI I'm going to put more on the record than I normally would in an agreed-upon sentence." While it is possible the trial court would have imposed a sentence lesser than that recommended by the state if a full presentence investigation were conducted, it is highly speculative that it would have done so, especially in light of the serious nature of the crime and the fact that the court was presented with an overview of the petitioner's troubled history prior to sentencing, and the court stated on the record that "clearly it's a fair disposition." "In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities." (Internal quotation marks omitted.) Saunders v. Commissioner of Correction, 113 Conn.App. 474, 477, 966 A.2d 796 (2009). Twenty-eight years was already a favorable sentence given the circumstances, and this court is not persuaded that a presentence investigation report would have had the effect of decreasing it further. Therefore, the petitioner has failed to demonstrate that he was prejudiced by his attorney's failure to explain it to him, even if deficient performance were to be presumed.
Finally, the petitioner claims that attorney Bernstein was ineffective in failing to apply for sentence review. This claim was not pursued at trial. In any event, General Statutes § 51-195 very clearly precludes review of sentences arising from plea agreements.
Section 51-195 provides in relevant part: "Any person sentenced . . . to a term of imprisonment for which the total sentence . . . amounts to confinement for three years or more, may . . . except in any case in which the sentence or commitment imposed resulted from the court's acceptance of a plea agreement . . ., file . . . an application for review of the sentence by the sentence division." (Emphasis added.)
CONCLUSION
Having failed to demonstrate that his counsel rendered ineffective assistance, the petitioner's petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the court within thirty days.
BY THE COURT,