Opinion
No. CR 04-586738
December 14, 2006
MEMORANDUM OF DECISION
On March 31, 2006, the defendant entered pleas of guilty under the Alford doctrine to two counts of robbery in the first degree and one count of assault in the first degree in two different cases. At the time of the plea, the defendant had four cases pending in the Judicial District of Hartford (Part A). File numbered 05-588890 charged one count of robbery in the first degree and one count of conspiracy to commit robbery in the first degree allegedly occurring on October 31, 2004 in Hartford, Connecticut. File number 05-587243 charged one count of robbery in the first degree and one count of conspiracy to commit robbery in the first degree also allegedly occurring on October 31, 2004, in Avon, Connecticut. These two cases were merged for trial under docket number 05-587243. The defendant had another case pending in Part A under docket number 05-590920, which charged one count of robbery in the first degree and one count of conspiracy to commit robbery in the first degree allegedly occurring in Hartford, which was to remain pending during the trial of consolidated file 05-587243. The fourth file was docket number 04-586738 which charged assault in the first degree and robbery in the first degree and was also pending in Part A. The defendant was appointed a public defender to represent him on all of his Part A cases.
Pursuant to a plea agreement with the State in docket number 05-587243, the defendant entered pleas of guilty to one count of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4), occurring on or about October 31, 2004 in the town of Avon, and one count of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4), also occurring on or about October 31, 2004 in Hartford. Additionally, he pled guilty under docket number 04-586738, to one count of assault in the first degree, in violation of General Statutes § 53a-59(a)(1), occurring on or about November 21, 2004 in Hartford. The sentence the defendant agreed to was a term of imprisonment of twenty years, execution of sentence to be suspended after serving ten years and a period of probation of five years. Sentencing was continued until June 6, 2006.
On June 2, 2006, trial counsel filed, at the request of the defendant, a motion to withdraw his guilty plea pursuant to Practice Book § 39-27(4). The motion claimed that the defendant pled guilty because of the ineffective assistance he received from his trial counsel. On June 6, 2006, on the day he was to sentenced, the defendant, again through trial counsel, moved to withdraw his plea. The Court, Miano, J., denied the defendant's motion, but the defendant was not sentenced. A few days later, trial counsel withdrew and present counsel was appointed, as a special public defender, to represent the defendant. Present counsel was allowed by the Court, Miano, J., to file a new motion to withdraw the defendant's guilty plea, which he did on August 1, 2006. On August 21, 2006, the defendant filed a second amended motion to withdraw his guilty plea on the morning this Court was to begin a hearing on the defendant's August 1, 2006 motion. After taking evidence on the defendant's motion on September 18, 2006 and September 27, 2006, this Court denied, by endorsement, on October 3, 2006, the defendant's second amended motion to withdraw his guilty plea and this memorandum of opinion follows.
Sec. 39-27.— Grounds for Allowing Plea Withdrawal
The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
(1) The plea was accepted without substantial compliance with Section 39-19;
(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
(4) The plea resulted from the denial of effective assistance of counsel;
(5) There was no factual basis for the plea; or
(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.
See, Motion To Withdraw Plea, dated June 2, 2006, (Defendant Exhibit E therein).
The court, Miano, J., assigned this court the resolution of the issue of whether the defendant should be allowed to withdraw his plea. A hearing on the defendant's second amended motion was commenced on August 21, 2006 and continued, at the defense's request, until September 18, 2006 in order to give defense counsel an opportunity to review the transcripts of jury selection and the suppression hearing. On September 18, 2006, the hearing was again continued, at the defense's request, until September 27, 2006 because defense counsel had not finished reviewing all of the transcripts.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a motion to withdraw a guilty plea based upon ineffective assistance of counsel pursuant to Section 39-27(4) of the Practice Book, a defendant must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law and there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea such that the plea was not voluntary and intelligent because of the ineffective assistance. State v. Scales, 82 Conn.App. 126, 129, 842 A.2d 1158 (2004). "In addressing this second prong, the United States Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), that 'to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' Id., 59. The resolution of this inquiry will largely depend on the likely success of any new defenses or trial tactics that would have been available but for counsel's ineffective assistance," Id., 129-30.
In the present case, the defendant contends that he accepted the State's plea offer because he received ineffective assistance from his trial counsel. The defendant testified that he only met with his trial counsel once for a total of twenty minutes and that he did not show him any police reports or any other evidence about his cases. According to the defendant, he did not know the full scope of the evidence against him with respect to any of the charges he was facing. The defendant testified that he repeatedly asked for this material but only received a copy of one police report for one case from a secretary in the public defender's office.
Transcript dated September 27, 2006, pages 9-10.
The defendant also asserts that during jury selection, his trial counsel twice refused to follow his instructions regarding the composition of his jury. On one occasion, the defendant and his trial counsel had a disagreement about a venire person who lived in Avon, where one of the robberies occurred, and knew one of the investigating officers in the case. That juror was accepted over the defendant's objection. On March 24, 2006, the defendant and his trial counsel again disagreed about a venire person. Trial counsel wanted to select a venire person who had friends who were police officers and some who wanted to become police officers. That disagreement resulted in the defendant creating a disturbance in the courtroom and a breakdown of the relationship between his attorney and him. The defendant did not want his trial counsel to continue to represent him because, after the incident, he could not freely and effectively communicate with him and he felt his trial counsel was not looking out for his best interest. The defendant testified that had he been involved and included in the jury selection process, he would have chosen a different jury and gone to trial.
Transcript dated September 27, 2006, pages 11-12.
Transcript dated September 27, 2006, pages 12-16.
Lastly, the defendant claims that his trial counsel gave him incorrect information about the status of a criminal investigation against Robert Lawlor, a Hartford police officer, whom the defendant learned was under investigation for homicide and tampering with evidence. According to the defendant, Officer Lawlor was a material witness in the State's strongest case against him. The defendant believed that Officer Lawlor collected evidence, took statements and had direct contact with a victim in the case. Trial counsel told him he knew of the officer but that he had been cleared of any wrongdoing. In fact, at the time, Officer Lawlor was still under criminal investigation. The defendant testified that because of Officer Lawlor's tampering with evidence, he would have called him to the stand for purposes of credibility. However, because of trial counsel's incorrect information, the defendant decided not to continue with trial. The incorrect information about Officer Lawlor had a very big bearing on his decision to plead guilty.
Transcript dated September 27, 2006, pages 20-23.
The Court does not credit any of the defendant's testimony, as his claims are without merit. It is clear from a review of the record of this case that the defendant's change of plea did not result from ineffective assistance from his trial counsel. The defendant pled guilty because the State had three very strong cases against him and he was facing a substantial period of incarceration if convicted after a trial. The defendant pled guilty because he saved himself five years of prison time. The State reduced the original offer from thirty years of incarceration suspended after serving fifteen years and five years of probation to a sentence of twenty years, suspended after ten years and five years probation. Additionally, the State agreed to nolle one other Part A robbery case and two cases the defendant had pending in the Geographical Court 14.
The defendant called Attorney Norm Pattis of Bethany, Connecticut, to testify on his behalf as an expert on the issue of ineffective assistance of counsel. Attorney Pattis testified that he was contacted approximately a week before the September 27, 2006 hearing, that he reviewed some transcripts and some pleading concerning the motion to withdraw the defendant's guilty plea. He did not review the entire file or the transcript of the defendant's guilty plea proceedings on March 31, 2006. Based on what he did review and what he heard in the courtroom on September 27, 2006, Attorney Pattis gave an opinion on the issue of ineffective assistance of trial counsel. However, since Attorney Pattis' opinion was based entirely on the defendant's inaccurate and unsupported claims, the Court does not consider Attorney Pattis' testimony relevant to the present motion.
That the defendant did not plead guilty because of ineffective assistance of his trial counsel is evidence by his own behavior during the pendency of his cases. On March 22, 2006, the Court, in considering the State's motion to join two of the four robbery cases the defendant had pending, reviewed the facts of the cases the State sought to join for trial, in the defendant's presence. Additionally, that day, the defendant was present when the State read a list of witnesses from the Hartford and Avon robberies to the venire panel. After the Court granted the State's motion to join the Hartford and Avon robbery cases, jury selection commenced. On March 22, 2006, ten venire people were questioned and two were selected to sit as jurors in the defendant's case. As of March 24, 2006, the State had used three peremptory challenges and the defense five. It was not until March 24, 2006, that there is any evidence in the record that the defendant was dissatisfied with the representation he was receiving from his trial counsel. On that day, the first venire person questioned by the attorneys was accepted to sit on the jury. The second venire person, when questioned by trial counsel, stated that two of his best friends were police officers and one friend was applying to become one. However, he added that he would not automatically believe a police officer's testimony just because of his occupation. Ultimately, trial counsel accepted the venire person but the defendant disagreed. The defendant spoke up and engaged the Court in the following colloquy:
While the defendant testified that he could not recall if he was present, the record reflects that he was present on March 22, 2006 as his trial counsel asked the Court to order the removal of the defendant's shackles before the venire panel was brought into the courtroom. Transcript dated March 22, 2006, Defense Exhibit B, page 6.
Apparently jury selection continued on March 23, 2006, but this court was not provided with a copy of that transcript. See, Transcript dated March 24, 2006, Defense Exhibit C, page 1.
Transcript dated March 24, 2006, Defense Exhibit C, pages 42-43.
MR. ISKO: He's acceptable, your Honor . . .
THE DEFENDANT: I don't agree; your Honor.
MR. RUBINO: Acceptable to the state.
THE COURT: Well, do you want a little —
THE DEFENDANT: You can't just do that, man.CT Page 22925
THE COURT: Well —
THE DEFENDANT: He can't disagree with me.
THE COURT: Well, he can disagree with you.
Do you want some time to talk this over?
MR. ISKO: Well, I — no. And it's not because there are — and again, I've been getting along very well with Mr. Vasquez. And he's been very reasonable.
Transcript dated March 24, 2006, Defense Exhibit C, pages 55-56 (emphasis added).
After trial counsel explained why he believed the venire person should not be excused, the colloquy continued as follows:
THE DEFENDANT: Your honor, if I got a right to a challenge, why can't I exercise that right?
THE COURT: Some — as Mr. Isko said —
THE DEFENDANT: My attorney is not on trial here.
THE COURT: I know that. But you should rely on his expertise in many areas. MY only issue right now is whether or not you want a short break to talk this over, to not to change your decision, Mr. Isko, but maybe to get — have a little more time to explain it to your client in private without the rest of us sitting here. You know, you want to take a —
MR. ISKO: Why don't we take a recess?
THE COURT: Take a short break.
THE MARSHAL: Hey. Hey. None of that right now.
THE DEFENDANT: Don't try to rough me up. Don't try to rough me up.
THE MARSHAL: Open the door.
THE MARSHAL: We're not roughing you up.CT Page 22926
THE MARSHAL: Please. Open the door.
THE DEFENDANT: I'm under control, man. All right.
THE MARSHAL: You're not. You're not.
THE DEFENDANT: I'm not —
THE MARSHAL: Hey, listen. Come here.
Transcript dated March 24, 2006, Defense Exhibit C, pages 57-58.
During the struggle with the Marshals, the defendant struck the defense table with his hand and flung the books and things on it off and near the courtroom clerk. After a recess, the defendant returned to the courtroom and apologized to the Court for his behavior. The Court ordered that the defendant be shackled and addressed him as follows:
Now, Mr. Vasquez, I realize, having been in this system for many years, over three decades, that your position is incredibly stressful . . . If you feel in any way stressed out like you were before, let one of the marshals know who's sitting behind you if Mr. Isko is not next to you — he may be up questioning somebody — and the marshal will let me know and we'll just take a break. We'll take a recess. All right? . . . We have time during voir dire for extra breaks if we need them.
See, Defense Exhibit F.
After the defendant's disturbance in the courtroom, the venire person to whom the defendant objected was excused by the Court for cause and jury selection continued. Eight more venire people were questioned and the selection of the jury was completed. Additionally, one alternate was chosen. At no time after the disturbance did the defendant complain to the Court about his trial counsel's performance or his ability to communicate effectively with him.
Moreover, the defendant did not complain about trial counsel during the hearing on his motion to suppress identifications. At the hearing, the defendant's accomplice in the Hartford and Avon robberies, who was cooperating with the State, testified, identified the defendant and implicated him in those robberies. Additionally, the victim in the Hartford robbery testified and identified the defendant from a photo array as the person who robbed him.
Given the fact that the defendant was not shy about speaking up in Court and knocking items off of the defense table when he was unhappy about his trial counsel's decision on a venire person, his claim that he would have chosen to go to trial if he could have chosen a different jury rings hollow. After the disagreements with his trial counsel about the two venire persons, the defendant continued to participate in the jury selection process until the jury and one alternate were selected and during the entire hearing on his motion to suppress identifications. At no time thereafter did the defendant complain that trial counsel was not looking out for his best interest, that he could not effectively communicate with him or that their relationship had broken down.
Additionally, the defendant's claim that he pled guilty because trial counsel told him that Officer Lawlor had been cleared of wrongdoing is also incredible. Officer Lawlor's participation in the defendant's Hartford case was minimal. Lawlor interviewed the victim at the scene of Hartford robbery on October 31, 2004 about being robbed and obtained a description of the perpetrator. Lawlor would not have testified for the State, as his entire testimony would have been hearsay. Moreover, it is highly speculative that Officer Lawlor's legal situation would have been relevant in the defendant's case.
Transcript dated September 27, 2006, page 85.
This is an error in the transcription, as Mr. Weingast was not the defendant's trial counsel.
Having considered the record as a whole, the Court finds that the defendant was well aware of the evidence against him and the consequences of pleading guilty. In fact, the defendant was advised by the Court at the time of his plea as follows:
THE COURT: Now, have you discussed your pleas of guilty under the Alford Doctrine and the consequences to you by pleading guilty? Have you discussed those important things with Mr. Isko?
THE DEFENDANT: Yes.
THE COURT: And have you had enough time to discuss these very important matters with Mr. Isko?
THE DEFENDANT: Yes.
THE COURT: Has your attorney advised you as to what the state would have to prove in order to convict you of each of these crimes if you had a trial on each?
THE DEFENDANT: Yes.
THE COURT: Did you do that, Mr. Isko?
MR. WEINGAST: Oh, yes.
Transcript dated March 31, 2006, Defense Exhibit A, page 10 (emphasis added).
THE COURT: All right. And are you satisfied with the advice your attorney has given you?
THE DEFENDANT: Yes
Transcript dated September 27, 2006, page 56.
Clearly, the defendant has failed to prove that the assistance he received from his trial counsel was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. As the defendant's expert witness, Norm Pattis, stated, "I know Attorney Isko and I know him to be a good lawyer." Having reviewed the record of this case, the Court found no evidence to conclude otherwise.
Transcript dated September 18, 2006, page 9.
II. THE VOLUNTARINESS OF THE PLEA
The defendant also alleges that he should be allowed to withdraw his plea of guilty because it was involuntary and without knowledge of the nature of the charges, in violation of Practice Book section 39-27(2). The defendant claims that he pled guilty to being an accessory without the charge having been explained to him and without a factual basis being set forth by the State. The defendant testified that he was only made aware he was pleading to two charges of robbery in the first degree and one charge of assault in the first degree. The defendant claims that accessorial liability was never discussed with his attorney or with the Court. The defendant testified that had he known he was being charged as an accessory, he would not have pled guilty. He would have gone to trial.
Transcript dated September 27, 2006, page 27.
Transcript dated September 27, 2006, page 28.
The defendant concedes that the Court did "a fantastic job" explaining robbery. The Court, however, was not obligated to inform the defendant of the elements of accessorial liability because he was not an accessory to the crimes to which he pled guilty. As set forth by the State in its recitation of the factual basis for each of the pleas, the defendant was the principal offender in all three cases. In docket number 04-596738, the defendant committed the crime of assault in the first degree, in Hartford, by hitting the victim with a baseball bat and fracturing his skull causing damage to his right eye. The victim subsequently identified the defendant, whom he knew, as his assailant. In docket number 05-587243 the defendant pled to two counts of robbery in the first degree. In one count, the defendant went to 600 Asylum Avenue in Hartford and approached the victim who was waxing his car. The defendant revealed a handgun that was tucked in his waistband, and took money and a camera from the victim. The victim subsequently identified the defendant from a photo array as the person who robbed him. On the same day, the defendant went to the Marshall's parking lot in Avon, Connecticut, approached a woman and told her, while holding his hand in his pocket, that if she did not give him her purse he would shoot her. The co-defendant in the case subsequently implicated the defendant in this robbery.
Transcript dated March 31, 2006, Defense Exhibit A, pages 3-6.
Transcript dated March 31, 2006, Defense Exhibit A, pages 1-3.
That the courtroom clerk read section 53a-8(a) from the Information when the defendant was put to plea does not make him an accessory to the crimes to which he pled guilty. Indeed, before he entered his pleas, the prosecutor stated that the defendant would be pleading to two counts of robbery in the first degree, section 53a-134(a)(4) in file 05-587243 and one count of assault in the first degree, section 53a-59(a)(1), in file 04-586738. Given the defendant's role as a principal offender in the cases to which he pled guilty, the Court was not required to explain accessorial liability to him.
Transcript dated September 27, 2006, pages 27-28.
The defendant also contends that his plea was not knowing because the Court did not explain to him that by pleading guilty, he was giving up his right to appeal pre-trial rulings. The defendant testified that his trial counsel never explained to him that by pleading guilty he was giving up his right to appeal. He further testified that he thought his motion to sever and motion to suppress had been granted. According to the defendant, if he knew they had been denied and that he had a right to appeal those denials to higher court, he would not have chosen to plead guilty. He would have gone to trial. This testimony by the defendant is ludicrous. If he believed his motions had been granted, the State's case would have been substantially weakened or even totally damaged. It defies credulity that a defendant in that situation would prefer to plead guilty instead of forcing the State to trial. In spite of his testimony, however, the defendant concedes, as he must, that no Practice Book section or statute requires that the waiver of the right to appeal must be addressed during the course of a plea canvas.
Transcript dated September 27, 2006, page 26.
Finally, the defendant asserts that as a result of the pain he was suffering to his right hand, he was not able to make a knowing, voluntary and intelligent plea. The defendant injured his hand as a result of a confrontation with another inmate at one of the facilities, as was noted by the Court on March 29, 2006. On that day, the defendant participated in the hearing on his motion to suppress identifications without complaining of pain. The defendant testified, however, that on March 31, 2006, on the day of his plea, he told his trial counsel that he was feeling great pain. Consequently, he could not concentrate when the Court was talking to him about the change of plea, the details of the plea bargain or what rights he was waiving. He was suffering pain when asked if he understood what was happening. He could not concentrate on what the Court was saying and did not know clearly what his answers were. In spite of the pain he was suffering, his trial counsel did not ask for a continuance of the proceedings. The defendant admits, however, that he never said he was in pain when asked questions by the Court during the plea canvas. The defendant also acknowledges that the Court pointed out that he was going to have surgery and that his hand was wrapped and that he never said he was in pain. Rather than seek a continuance of the plea proceedings because of the pain in his hand, he asked for a continuance of sentencing. After setting forth the factual basis for the plea, the prosecutor put on the record that the defendant was asking for a continuance for sentencing and the defendant's trial counsel agreed. Trial counsel stated as follows:
Transcript dated March 29, 2006, Defense Exhibit D, page 25.
Transcript dated September 27, 2006, pages 25-26.
Transcript dated September 27, 2006, page 36.
Transcript dated March 31, 2006, Defense Exhibit A, page 6.
We are asking a postponement for sentencing. Mr. Vasquez is going to get surgery on his hand, recovery, and being able to kind of get his stuff together.
Transcript dated March 31, 2006, Defense Exhibit A, page 7.
At no time did the defendant inform the Court that what he really wanted was a continuance of the plea because of the pain he was experiencing that day.
The defendant's claims to the contrary notwithstanding, the record of this case is clear that the defendant entered into a knowing and voluntary plea on March 31, 2006. At the very beginning of the canvas the Court gave the following instruction to the defendant:
THE COURT: Sir, before I hear from your attorney, I'm going to ask you some questions. I want to make sure you understand everything one hundred percent. If there's something you don't understand one hundred percent, you feel free to interrupt me and consult with Attorney Isko or interrupt me and have me explain whatever it is more clearly so that you do understand it one hundred percent. Do you understand that?
THE DEFENDANT: Yes, your honor.fn31
At no time during the plea canvas did the defendant make any of the claims he makes in the present motion to withdraw his plea. On that day, the defendant told the Court that he was not under the influence of any alcohol, drugs or medication. When explaining the agreed-upon sentence, the Court addressed the defendant as follows:
THE COURT: Very good. Now, there's an agreement here. The net bottom line agreement the lawyers are making to me are the following: In return for these three pleas of guilty that you're going to receive an agreed-upon sentence of twenty years in jail, execution suspended after you serve ten years in jail to be followed by five years of probation. Is that your understanding of the agreement?
THE DEFENDANT: Yes.
THE COURT: Do you understand what that means?
THE DEFENDANT: Yes.
THE COURT: Okay. If I accept it, it means — and I know you said yes, but I just want to go a step further. If I accept it, it means you do ten years in jail. And once you've served the ten years, you will be discharged from corrections and you will go on probation and you'll be on probation for five years and you will have ten years over your head, suspended over your head, for the five year period that you're on probation. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And what do I mean by suspended over your head?
THE DEFENDANT: It means I can get that time.
THE COURT: If?
THE DEFENDANT: If I commit a crime within the probation.
Transcript dated March 31, 2006, Defense Exhibit A, pages 10-11 (emphasis added).
The foregoing is hardly an exchange by a person in such great pain or who was so incapacitated that he could not understand what was being said to him. Obviously, the defendant was concentrating on what the Court was telling him because he answered the Court's question correctly. Had he been in such great pain he would not have been able to respond to the Court in such a lucid fashion. If he really was in such great pain, he would have advised the Court of his condition.
Having already demonstrated that he is not shy about speaking his mind in Court, whether invited to interrupt the Court or not, this Court does not credit any of the defendant's claims. The Court took great pains to ensure that the defendant understood what was happening and was in agreement with the plea bargain. He was given every opportunity to question one hundred percent any matter he did not understand. Accordingly, the defendant's motion to withdraw his guilty plea entered on March 31, 2006 is hereby denied.
Dated at Hartford, Connecticut, this fourteenth day of December 2006.
CT Page 22935