Opinion
CV154007317S
05-26-2017
Angel Villafane v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Angel Villafane, appears pro se and seeks habeas corpus relief from a total, effective sentence of imprisonment for eight years, followed by seven years special parole, imposed as a result of his guilty pleas to burglary first degree, violation of a protective order, and admissions to violating certain suspended sentences. He requests that this court vacate those pleas and return his cases to the criminal docket of the Ansonia-Milford Judicial District for further adjudication.
The basis for his claim for relief is that his defense counsel, Attorney David Egan, represented him ineffectively. Our Supreme Court had adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria require that the petitioner demonstrate, by a preponderance of the evidence that his attorney's performance was substandard and that there exists a reasonable probability the outcome of the proceedings would have been different but for counsel's failings. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by ordinary, professional competence. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57, 662 A.2d 718 (1995). Under these cases, the habeas petitioner must show that a reasonable likelihood exists that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty. Id., at 151; Carraway v. Commissioner, 317 Conn. 594, 600, fn.6, 119 A.3d 1153 (2015).
In particular, the petitioner charges that Attorney Egan rendered substandard assistance by failing to conduct adequate pretrial investigation and preparation; by failing to request that the petitioner undergo a competency examination pursuant to General Statutes § 54-56d; and by failing to advise the petitioner that one cannot burglarize one's own residence.
The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97, 503 A.2d 136; State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. Reed v. Reincke, 155 Conn. 591, 597, 236 A.2d 909; State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984), McKnight v. Commissioner, 35 Conn.App. 762, 764, 646 A.2d 305 (1994); cert. denied, 231 Conn. 936, 650 A.2d 173 (1994); State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407 (1991). This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971), Reed v. Reincke, supra, 601; Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979).
A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea. Our Supreme Court has addressed this issue, also. In Dukes v. Warden, supra, 343-44, the court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of preplea, constitutional deficiencies. See also McKnight v. Commissioner, supra .
Several federal court cases have arrived at the same conclusions. In Siers v. Ryan, 773 F.2d 37 (CA.3, 1985), cert. denied, 490 U.S. 1025, 109 S.Ct. 1758, 104 L.Ed.2d 194, a federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel. The petitioner later pled guilty to a robbery charge. The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness. Id., 42.
In U.S. v. Greene, 722 F.Supp. 1221 (E.D.Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity. At p. 1222, the U.S. District Court held the petitioner's guilty plea " bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered."
In U.S. v. Winfield, 960 F.2d 970 (CA.11, 1992), a petitioner tried to attack his conviction, followed a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations. At p. 974, fn.2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.
In Wilson v. U.S., 962 F.2d 996 (CA.11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain pre-plea issues. The U.S. District Court refused to conduct a habeas hearing and dismissed the petition. The U.S. Court of Appeals affirmed the District Court stating, " the court did not err in dismissing [the petitioner's] claim, as it involved pre-plea issues, without conducting an evidentiary hearing." Id., 997.
In Fields v. Maryland, 956 F.2d (1290) (CA.4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea. He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings. The U.S. District Court dismissed the petition. The U.S. Court of Appeals upheld the dismissal indicating, " [i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation." Id., 1294. The Court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and was unrelated to it, the merits of the petitioner's claims need not be reached. Id., 1296.
Finally, in Taylor v. Whitley, 933 F.2d 325 (CA.5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery, and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense. The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition. The Court of Appeals stated that a " voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later judicial decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant's counsel were incorrect." Id., 327.
In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim. The Court of Appeals rejected this argument stating, " the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Id., 329 (emphasis added). The court went on to indicate that the absence of advice regarding the double jeopardy issue " does not affect the voluntary and intelligent nature of his pleas." Id., 331.
The Taylor case, supra, is significant in that it points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea. What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielded by entering the plea, such as the right to confront and cross examine witnesses. There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of pre-plea defects.
The federal cases cited above are consistent with and bolster the holding of Dukes v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.
Consequently, the petitioner cannot prevail on his allegations that Attorney Egan insufficiently investigated his case, such as by failing to interview certain witnesses or gathering evidence concerning their credibility.
With respect to his assertion that Attorney Egan ought to have requested that the trial court order a § 54-56d competency examination of him, the court finds that the petitioner has satisfied neither the performance nor the prejudice prongs of the Strickland standard.
At the habeas trial, the petitioner presented the expert testimony of Dr. Andrew Meisler, a psychiatrist. Dr. Meisler reviewed information he obtained from the petitioner directly, the plea and sentencing transcripts, the presentence investigation report, and the petitioner's medical records kept by the Department of Corrections. Dr. Meisler opined that, at the time of the plea, December 17, 2014, the petitioner would very likely have been determined to be competent to understand the nature of the charges against him, assist Attorney Egan in his own defense, and make a decision to accept the plea disposition offered by the prosecuting authority.
Dr. Meisler acknowledged that the petitioner has long suffered from bipolar disease, opiate addiction, and learning disabilities. However, after his arrest, the petitioner remained in pretrial confinement and received medications appropriate to ameliorate his mental impairments. The medications stabilized his mood swings, eliminated hallucinations, and enabled the petitioner to act competently within the parameters set forth by § 54-56d.
This court's review of the transcripts and other evidence in the case comport with Dr. Meisler's assessment. The petitioner faced over forty years incarceration if convicted of all the charges against him, to wit: burglary first degree; violation of a protective order; two violations of probation; and a violation of a conditional discharge. The prosecutor offered to recommend a total, effective sentence of nine years imprisonment, with seven years special parole, with the petitioner retaining the right to argue for a lesser sentence. The burglary first degree charge carried with it a mandatory minimum sentence of five years in jail.
Apparently, the petitioner had initially equivocated about accepting or rejecting this offer. However, once he understood that Attorney Egan was free to argue for a more lenient sentence than nine years to serve, the petitioner abruptly decided to accept the proposed disposition. The trial judge specifically questioned the petitioner concerning his rapid change of mind, and the petitioner disclosed that the revelation of his right to argue for a lesser sentence was the deciding factor. It should be noted that the petitioner had a long history of criminal conviction and imprisonments.
Throughout the plea canvass, the petitioner responded to the trial judge's inquiry cogently. He expressed satisfaction with Attorney Egan's legal assistance, and he acknowledged that he comprehended the information that Attorney Egan had communicated to him leading up to his decision to plead guilty.
The trial judge explained the elements of the crimes of burglary first degree and violation of a protective order, the maximum and minimum mandatory possible sentences, and the trial rights ceded by the guilty pleas and admissions of violations of the terms of his suspended sentences. The petitioner responded that he was aware of these facts and was pleading guilty freely, voluntarily, and without force or threat. Importantly, the petitioner also stated that he understood that as long as the ultimate sentences imposed fell within the recommended sentence of nine years imprisonment, he could not withdraw his pleas.
Dr. Meisler's credible assessment regarding the strong probability that the petitioner was legally competent under § 54-56b demonstrates that the omission of a request for such an examination was reasonable, and Attorney Egan cannot be faulted for failing to engage in a vain act that, even if successful, would not have necessarily produced an outcome desirable for the petitioner.
Obviously, Dr. Meisler's opinion undermines the petitioner's claim of prejudice also, because a finding of competency was very likely to result. The court finds that the petitioner has failed to meet his burden of proving that there exists a reasonable probability that the outcome of his criminal case would have been more favorable but for this purported deficiency.
Finally, the petitioner contends that Attorney Egan neglected to advise him that he committed no crime by entering his own residence. The credible evidence belies the factual underpinning of this contention. Attorney Egan sent the petitioner multiple letters addressing this issue. Attorney Egan indicated to the petitioner that he spoke to the victim and her daughter about the petitioner's purported living arrangements and they stated that the petitioner only sporadically stayed at that address and that it was not his permanent residence. Also, the victim averred that the petitioner had moved out of the home around one month before the incident in question. Further, Attorney Egan related to the petitioner that it would be difficult to explain why the petitioner knocked on the door before entering the home if he was a current resident. Attorney Egan also properly instructed the petitioner that this factual controversy would have to be resolved by the jury if the case went to trial.
The court determines that the petitioner has also failed to satisfy his burden of establishing, by a preponderance of the evidence, that Attorney Egan performed unprofessionally on this point.
For these reasons, the court denies the amended petition for habeas corpus relief.