Opinion
CV164007940
10-23-2018
Thomas TYE v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
Hon. John M. Newson Judge
I. Procedural History
The petitioner was the defendant in two matters pending in the judicial district of Fairfield under docket nos. CR10-0253647-T and CR10-0254537-T. In docket ending # 537, in addition to other charges, he was charged with home invasion, in violation of General Statutes § 53a-100aa; risk of injury to a minor, in violation of General Statutes § 53-21(a)(1); and criminal possession of a firearm, in violation of General Statutes § 53a-217(a). In the docket ending # 647, in addition to other charges, he was charged with robbery first degree, in violation of General Statutes § 53a-134(a)(2), robbery of an occupied motor vehicle ("carjacking"), in violation of General Statutes § 53a-136a; and attempted assault first degree by discharge of a firearm, in violation of General Statutes § 53a-59(a)(5).
According to the plea transcripts, a summary of the allegations in # 537 are that on October 29, 2010, the petitioner and his roommate-girlfriend, Nicole Bowen ("Bowen"), aided by a third party named Dashawn Perry ("Perry"), forcibly entered their downstairs neighbors’ apartment under belief that the neighbors, or persons they were associated with, were responsible for breaking into the apartment Bowen and the petitioner shared earlier that day. According to the victims, who recognized the suspects as their upstairs neighbors, Bowen entered the apartment with a roll of duct tape, the petitioner was in possession of a silver handgun, and Perry had a knife. In the course of threatening the victims and demanding return of certain property, Bowen and Perry are alleged to have physically assaulted a couple of the victims and the petitioner is alleged to have placed the gun to the forehead of another, some of which was done in the presence of several children who resided with the victims. During the commotion in the apartment, one of the victims managed to escape out a window and summoned police.
Upon realizing one of the victims had escaped, all three suspects fled from the apartment, which is where the allegations for docket ending # 647 begin. Once on the street outside the apartment, the petitioner carjacked a vehicle at gunpoint. The carjacking victim reported that he was forced into the passenger seat, Bowen got into the driver’s seat, the two male suspects got into the rear passenger seats, and the suspects began to drive towards New York. The victim reported that the petitioner and Bowen were passing the gun back and forth between themselves. During the ride down Interstate 95, the victim, believing his life was in danger, made several attempts to obtain possession of the gun. While it is not clear which suspect was in possession of the gun when he made the first attempt to take it, the petitioner ended up with it afterwards and stated, "I was going to let you go; now I’m going to kill you." The victim now began to struggle directly with the petitioner for possession of the gun, during which the gun discharged and blew out the passenger window. The petitioner then dropped the weapon, which was retrieved by Bowen, who then attempted to shoot at the victim, missing and blowing out the front windshield. The victim continued to fight, eventually kicking Bowen in the face and causing her to lose control of the vehicle, which crashed into the center median barrier on interstate I-95 in the Greenwich, Connecticut area. All three suspects fled from the crash on foot, but were captured a short time later by police.
On or about July 14, 2011, the petitioner entered pleas of guilty to the above charges in each docket. On November 9, 2011, pursuant to a plea agreement, he was sentenced to a total effective sentence of twenty-five years, suspended after eighteen years, followed by seven years of special parole. The petitioner commenced the present action challenging his conviction on February 27, 2015. The sole claim in the amended petition is that petitioner’s criminal counsel, Attorney Robert Frost, was ineffective for failing to inform him about the existence of an exculpatory statement given Nicole Bowen in which she claimed to be the sole person in possession of the gun during the events in question. The petitioner claims that he would have elected to go to trial if he had known about the exculpatory information. The matter was tried before the Court on August 23, 2018. Additional procedural and factual background will be provided as necessary throughout the course of this decision.
II. Law and Discussion
"The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." (Citation omitted.) Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts. That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing.McMann v. Richardson, 397 U.S. 759, 769-70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
"Where ... a defendant is represented by counsel ... and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases ... [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. " (Internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. at 56-57. "[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness." Id., 57. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Strickland v. Washington, supra, 466 U.S. 688.
The second prong of the test "focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words ... the petitioner 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." Hill v. Lockhart, supra, 474 U.S. 59; see also, Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). "[A] petitioner’s assertion after he has accepted a plea that he would have insisted on going to trial ‘suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision.’ ... In evaluating the credibility of such an assertion, the strength of the state’s case is often ‘the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial,’ in light of newly discovered evidence or a defense strategy that was not previously contemplated ... Notwithstanding the relevance of the projected outcome at a trial that included undiscovered evidence or an overlooked defense, such a prediction is not dispositive in resolving an ineffective assistance claim of this kind ... [T]he likelihood of an acquittal or a shorter sentence is a factor to be considered in assessing whether an attorney who had found different evidence or considered advancing an affirmative defense would have advised his client to reject a plea offer and go to trial. Likewise, the credibility of the petitioner’s after the fact insistence that he would have gone to trial should be assessed in light of the likely risks that pursuing that course would have entailed." (Citations omitted; internal quotation marks omitted.) Carraway v. Commissioner of Correction, 144 Conn.App. 461, 475-76, 72 A.3d 426 (2013); see, Flomo v. Commissioner of Correction, 169 Conn.App. 266, 280, 149 A.3d 185 (2016) (petitioner was not concerned with immigration consequences but stigma attached to conviction of sexual assault of minor and reducing jail sentence) and Niver v. Commissioner of Correction, 101 Conn.App. 1, 5-6, 919 A.2d 1073 (2007) (petitioner’s primary concern was minimizing amount of time in jail and petitioner was not troubled by potential for deportation).
As to the performance prong of this matter, the Court finds that the petitioner has failed to establish that there was any deficiency in Attorney Frost’s representation. Strickland v. Washington, supra, 466 U.S. 688. The Court specifically credits the testimony of Attorney Frost that he received a copy of Nicole Bowen’s statement along with other discovery in the case and that he went over all of the discovery materials with the petitioner. While the petitioner attempts to claim that he had no knowledge that Nicole Bowen had even spoken to the police, let alone that she had given a statement, until after he was sentenced, her statement to the police is specifically referenced during the petitioner’s plea canvas. (Exhibit 4, Transcript of State v. Tye Thomas, July 14, 2011, p. 17, lns. 10-13.) If the petitioner had no knowledge that Bowen had given any statement, one would normally expect the State’s Attorney’s revelation that the petitioner’s girlfriend and co-defendant had given a full statement to the essential facts of the case to elicit some sort of response from the petitioner. See Roberto v. Honeywell, Inc., 43 Conn.App. 161, 165-66, 681 A.2d 1011, 1014 (1996) ("In Connecticut, to admit as an admission evidence of the failure of a person to contradict or to reply to the statement of another person made in her presence and hearing, it is essential to establish that the person comprehended the statements made, that the person had the opportunity to speak, that the circumstances naturally called for a reply from that person and that the person remained silent. Obermeier v. Nielsen, 158 Conn. 8, 12, 255 A.2d 819 (1969); see also State v. Daniels, 18 Conn.App. 134, 138, 556 A.2d 1040 (1989)"). Instead, the petitioner is absolutely silent then, and two months later at his sentencing. Also, given the extensive negotiations counsel testified to, and the fact that the State needed to place the gun in the petitioner’s hands for at least two of the charges that were part of the plea agreement, it is not credible that defense counsel simply ignored discussing the impact with the petitioner of the written statement given by a codefendant immediately after being arrested where she claims sole possession of the only gun involved. So, while counsel conceded that the petitioner may never have had physical possession of Bowen’s statement, the Court does not find petitioner’s claims credible that he was wholly unaware of its existence or substance at the time he made the decision to enter his pleas. As such, the petitioner has failed to show that counsel’s representation fell below an objective standard of reasonableness. Hill v. Lockhart, supra, 474 U.S. at 57.
Attempted Assault First Degree was part of the plea agreement, and the allegations were that the discharge of the weapon in the vehicle during the struggle with the victim was intentional. (Exhibit 4, Transcript of State v. Tye Thomas, July 14, 2011, p. 7, lns. 13-27.) The charge of Criminal Possession of a Firearm required the petitioner, a convicted felon, to admit being in possession of a firearm.
At the sentencing, it came out that trial counsel made a specific motion to be able to provide the petitioner with a redacted copy of the case file. Pursuant to Practice Book rules, counsel testified he had not provide the petitioner with a physical copy of case discovery, and could not have without a Court order or consent from the State’s Attorney. See, Practice Book § 40-10 et seq.
While the Court could end this inquiry with its finding that counsel’s representation met constitutional standards; Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011); the Court also finds that the petitioner has failed to prove prejudice, because he has failed to provide credible evidence that he was prepared to reject the plea agreement and to go to trial. Carraway v. Commissioner of Correction, supra, 144 Conn.App. 475-76. First, notwithstanding Mrs. Bowen’s claim that she was the only person in possession of the only gun, witnesses in the home invasion case, who were familiar with all three suspects, gave statements that the petitioner was the person in possession of the gun when the suspects entered the apartment. The victim of the carjacking also gave a statement that, while all three of the suspects may have exchanged possession of the gun, the petitioner was the person in possession of it during the struggle which resulted in the passenger window being shot out. The petitioner has offered nothing credible that he was prepared to challenge the statements of these independent witnesses that, at least a portion of the time, he was the one in possession of the gun. Also, each time the petitioner was asked if he agreed with the allegations during his plea canvass, he responded unequivocally in the affirmative, and this Court is allowed to rely on those responses. See Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). ("A habeas court, as well as a trial court, may properly rely on ... the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged.")
Exhibit 4, Transcript of State v. Tye Thomas, July 14, 2011, p. 13, lns. 6-10.
Exhibit 4, Transcript of July 14, 2011, p. 16, lns. 7-20.
The petitioner also had a final opportunity to note any dispute he had with the facts of this case during his sentencing hearing. A presentence investigation ("PSI") report had been prepared for the sentencing by the probation department. Common experience allows this court to presume that excerpts of the allegations against the petitioner that the probation officer has gleaned from police reports, witness statements, and contacts with the victims were contained in the PSI, and that this information would have included the substantive allegations that the petitioner was in possession of the gun at certain points during this incident. Additionally, the State’s Attorney re-read all of the factual allegations into the record at the sentencing hearing. (Exhibit 4, Transcript of November 9, 2011, pp. 6-11.) Yet, the petitioner failed to note any objection or correction to any of the allegations that he was the person in possession of the gun. Given the petitioner’s unequivocal admissions to the pertinent facts of these cases during the plea canvas, his failure at any time to correct or challenge the allegations subsequently, and the incarceration of 20 years minimum mandatory to 80 years maximum he could have faced if convicted of just these charges after trial, the trial court does not find credible his claim that he was willing and ready to take this case to trial, but for counsel’s advice. Carraway v. Commissioner of Correction, supra, 144 Conn.App. 475-76.
On Robbery in the First Degree, § 53a-134(a)(2), he faced a 5-year minimum mandatory to 20-year sentence; on the Carjacking charge, § 53a-136a, he faced a 3-year mandatory sentence consecutive to the robbery sentence; on Attempted Assault First Degree, § 53a-59(a)(5), from 1 to 20 years; on the Home Invasion charge, § 53a-100aa, 10 years minimum mandatory to 25 years; on Criminal Possession of a Firearm, § 53a-217, 2 years minimum mandatory to 5 years; and on the Risk of Injury to a Minor charge, § 53-21(a)(1), 1 to 10 years, which all could have been imposed consecutively after trial. And, this total does not include numerous other charges, including persistent felony offender enhancements, the State agreed not to prosecute as part of the plea agreement.
III. Conclusion
In the present case, the petitioner has failed to establish that his attorney performed deficiently or that he was in any way prejudiced. As such, his claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Based on the foregoing, therefore, the petition for writ of habeas corpus is DENIED. Judgment shall enter in favor of the RESPONDENT.