Opinion
No. CV 04 0004613
February 5, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner has brought this amended habeas corpus petition alleging that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the Connecticut and the United States constitutions and that he was denied due process in violation of the Connecticut Constitution article first, § 8 and of the United States constitution. The petitioner is, presently, in the custody of the Commissioner of Corrections in the State of Connecticut.
The matter came before the court on May 24, 2007 and September 5, 2007, for a trial on the merits. Witnesses included the petitioner's trial counsel, Thomas Conroy, Dr. Jay M. Cudrin, attorney Leon Kaatz and the petitioner. In addition, the court considered relevant transcripts from the proceedings, a letter, attorney Conroy's file, a tests packet, and the petitioner's medical records. The court also ordered post-trial briefing. Petitioner's post-trial brief was filed on October 9, 2007; respondent's brief was filed on October 10, 2007. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.
Findings of Facts
The petitioner was the defendant in State v. Tyshun Williams, Docket Number CR 02-315395 in the Judicial District of Waterbury at Waterbury, wherein he was charged with: Conspiracy to commit robbery in first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(2) and robbery in the first degree in violation of § 53a-134(a)(2).
On September 29, 2003, the petitioner entered a plea of guilty to robbery in the first degree in violation of § 53a-134(a)(2). With regard to the other charge, the state's attorney entered a nolle prosequi. Then, on November 7, 2003, the petitioner was sentenced to a total effective sentence of fifteen years, of which five are mandatory, followed by five years special parole.
At the time of his plea and sentencing, the petitioner was represented by attorney Thomas Conroy. The petitioner alleges that attorney Conroy's acts and/or omissions, judgments and/or conduct of the defenses in the case were not within the range of competence displayed by lawyers with ordinary training in criminal law. Specifically, the petitioner alleges that attorney Conroy: Failed to investigate facts of the case which would be introduced as mitigating factors, including whether or not the petitioner suffered from any mental illness; failed to ask for the appointment of a guardian ad litem when the petitioner faced a decision that he was unable to make alone because his mother had been his spokesperson throughout the proceedings; and failed to acknowledge the petitioner's inability to knowingly, intelligently and voluntarily enter a guilty plea. In addition, the petitioner alleges that he was denied due process because he suffers from an extremely low I.Q. and other mental defects that interfere with the petitioner's ability to make responsible and rational decisions on his own and independently act on his own and absorb vital information.
The facts regarding the criminal charges are recited by the petitioner and admitted by the respondent. On October 1, 2002 the petitioner was arrested on a warrant. The petitioner and four co-defendants conspired to rob and did rob the Fire Fighter's Federal Credit Union in the Waterbury area. From the beginning of the case, the petitioner was offered twelve years to serve as were the co-defendants. The petitioner refused to take the offer based on his mother's advice regarding the offer.
On the date jury selection was to begin, the petitioner was given the opportunity to take the offer one more time. However, because the petitioner's mother could not be contacted on that day, the petitioner alleges that he was unable to make the decision on his own. Jury selection was continued one more day in order to allow the petitioner to contact his mother. However, at that point, the previous offer was withdrawn.
When the petitioner appeared in court, his mother was present. She was allowed to address the court throughout the proceedings. It appears that the petitioner's mother assisted petitioner with his decisions and that petitioner relied on his mother for many decisions in his life. In his daily life, the petitioner's mother made appointments for him, wrote his checks and paid his bills. Petitioner's reliance on his mother is displayed, for example, by his delaying the decision about pleading guilty before consulting with her. The petitioner's mother told the court that the petitioner was "slow," that he had "mental illness" and that he had been in "special schools all of his life." In addition, the petitioner's mother told the court that the petitioner was on "social security disability."
The petitioner's history of limited mental health and limited mental functioning is documented in the records from Harmony Hill School in Rhode Island. The records document his hospitalizations at Elmcrest at the age of six, followed by Mt. Sinai Hospital and Riverview. His mental limitations are documented in a psychiatric evaluation at the age of nine. Ex. 9.
Dr. Cudrin testified that the petitioner's I.Q. score would allow him to diagnose him as mentally retarded if the testing had been conducted prior to his 18th birthday. In addition, Dr. Cudrin testified that the petitioner had difficulty with verbal concept formation and judgment. Finally, Dr. Cudrin testified that these qualities interfered with the petitioner's ability to make decisions on his own.
Attorney Kaatz, the petitioner's expert witness, testified that the petitioner's mom's presence in court and the degree of her participation was "highly unusual" and "extremely unusual." Additionally, attorney Kaatz testified that in his professional opinion, the mother's involvement in the case should move a defense attorney to request a competency examination, seek to appoint the mother as guardian ad litem, request the petitioner's mental health records, participate and explore possible defenses of mental disease or defect and keep close communication with the mother to help communication with the petitioner. Further attorney Kaatz opined that had defense counsel taken these steps, it would have impacted the petitioner's sentence in several ways, including a finding of incompetency to stand trial, not guilty by way of mental defect or disease, and mitigating his culpability favoring a lighter sentence.
Attorney Conroy testified that he discussed various options regarding the case with the petitioner. Attorney Conroy testified that he had no trial strategy because he felt that the petitioner's was an "unwinnable case." Ex. C. Attorney Conroy testified that in negotiating a plea, he distinguished his client from the other co-defendants in terms of who was the leader in the robbery, who had the worse record and who benefited more from the robbery.
Attorney Conroy did not ask the court to leave open the court's offer of 12 years to serve until the following day when the petitioner's mother came to court because it would have been a "waste of time to ask the judge to hold the offer open." Ex. C, pages 14-15. The petitioner contends that had attorney Conroy obtained the information regarding the petitioner's psychiatric history, attorney Conroy could have utilized the information to convince the court keep the offer open until the next day.
The petitioner himself on more than one occasion expressed his unhappiness with his attorney before the court and attempted to fire him during the proceedings. The court did not conclude there was a basis to permit the appointment of a substitute special public defender.
Additional facts will be discussed as necessary.
Discussion
In count one, petitioner alleges that attorney Conroy rendered deficient performance by failing to: use mitigating factors in negotiating a fair plea bargain; investigate facts of the case which could be introduced as mitigating factors, including whether or not the petitioner suffered from any mental illnesses; ask for the appointment of a guardian ad litem when the petitioner was faced with a decision he was unable to make alone, even though it was clear on the record that his mother had spoken on his behalf at court appearances; and acknowledge the fact that petitioner could not knowingly, intelligently and voluntarily enter into a guilty plea.
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts . . .
"Although [the] decision [to plead guilty or proceed to trial] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . .
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . .
"In Hill v. Lockhart, [ 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n order 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 . . . The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-56, 895 A.2d 242 (2006).
The primary focus of the claims in count one is petitioner's limited mental abilities. Consequently, petitioner must affirmatively show to this court that whatever disabilities he had at the time of his underlying criminal matter were legally significant. See, e.g., Groomes v. Commissioner of Correction, 86 Conn.App. 486, 490, 862 A.2d 305 (2004), cert. denied, 273 Conn. 907, 868 A.2d 747 (2005). In large part, due to petitioner's guilty plea, petitioner must show that counsel deficient performance had the effect of rendering his guilty pleas not knowing, not intelligent and involuntary.
"[O]ur Supreme Court has repeatedly stated that a low level of education, although a factor to be considered, is not in and of itself determinative [to such a voluntariness determination]. See State v. Correa, 241 Conn. 322, 335, 340, 696 A.2d 944 (1997) (admission of statements by suspect with only five years of education); State v. Madera, 210 Conn. 22, 43-44, 554 A.2d 263 (1989) (admission of statements by suspect who functioned at third grade level, could not read or write but could write his name, identify numbers and do some counting); State v. Hernandez, 204 Conn. 377, 397, 528 A.2d 794 (1987) (admission of statements by suspect with I.Q. in borderline mentally retarded range); State v. Toste, 198 Conn. 573, 581, 504 A.2d 1036 (1986) (admission of statements by suspect with low I.Q., who functioned at sixth or seventh grade level)." Adorno v. Commissioner of Correction, 66 Conn.App. 179, 185-86, 783 A.2d 1202, cert. denied, 258 Conn. 943 (2001), quoting State v. Santiago, 245 Conn. 301, 322-23, 715 A.2d 1 (1998) ("fifth grade education and special education insufficient to compel finding defendant did not understand rights") ("distraught emotional state . . . does not prevent a finding of voluntariness or of knowing and intelligent waiver").
In the present case, attorney Conroy was appointed as a special public defender and represented petitioner for approximately one year. Attorney Conroy, who has been admitted to the practice of law in Connecticut since 1982 and whose practice in large part consisted of criminal defense work and litigation, obtained a copy of the warrant, statements of the codefendants, as well as petitioner's criminal record. According to attorney Conroy, the state had a strong case against petitioner and that there was no defense on the merits of the case. Attorney Conroy testified that he was able to communicate with petitioner about his criminal matter. Attorney Conroy indicated that petitioner became unhappy with his representation because petitioner did not like the number of years offered by the state to resolve the matter.
Attorney Conroy also testified that he spoke with petitioner's mother on a regular basis. Although petitioner was an adult aged twenty-one at the time of the underlying matter, petitioner's mother was in court at almost every occasion. There is no indication in the underlying record that either the court, the prosecuting attorney or attorney Conroy had concerns regarding petitioner's mental abilities that rose to the level of requesting either a competency evaluation or requesting the appointment of a guardian ad litem. Attorney Conroy could not recall being asked to get petitioner's mental health record and he did not, in fact, order those records for purposes of his representation of petitioner. While Judge Iannotti permitted petitioner's mother to address the court and interact with petitioner, it also is patently evident that Judge Iannotti was not permitting petitioner's mother to speak for him in any representative capacity. See, e.g., Petitioner's Exhibit 1, pg. 2-3.
This court specifically highlights the following colloquy:
The Court: . . . Your client's over 18, correct, Mr. Conroy?
Mr. Conroy: Yes, Your Honor.
The Court: Who's this, please?
Mr. Conroy: Thomas Conroy for the defendant.
The Court: Is this his mother?
Ms. Williams: Yes.
Mr. Conroy: Oh. Yeah.
The Court: Okay. Have a seat, ma'am. He's 21 years old, please.
Ms. Williams: But he's deficit attention. He's slow. I always come up and speak for him. Can I do it, Your Honor?
The Court: You could stand with him. You can't speak for him.
Ms. Williams: My son is deficit attention. You could look at his records.
The Court: Take it up with your lawyer.
Ms. Williams: He's slow.
The Court: Take it up with the lawyer.
The Defendant: Excuse me, Your Honor. May I address the Court?
The Court: Your mother says you're unable to speak for yourself . . . I would suggest to you that before you say anything to me — I'll let you say whatever you want, but you tell Mr. Conroy what it is first.
Although Judge Iannotti permitted petitioner's mother to address the court, it is evident from the transcripts that petitioner conferred with attorney Conroy. Petitioner himself addressed the court on several occasions and discussed concerns he had regarding the resolution of his matters. For example, a significant concern for petitioner was to resolve both his Waterbury and Hartford criminal cases to his benefit by receiving concurrent sentences in both jurisdictions. Petitioner himself addressed this concern with Judge Iannotti, who in turn referred petitioner to attorney Conroy. See Petitioner's Exhibit 1, at pgs. 4-5.
Petitioner declined to accept the state's offer until his mother was present. As a result, the offer was withdrawn. A later offer involving a longer sentence was accepted by the petitioner and resulted in the conviction at issue. Judge Iannotti thoroughly canvassed petitioner at the time of his guilty plea and found the plea to be knowing, voluntary and made with the assistance of competent counsel. See Petitioner's Exhibit 7, at pgs. 4-10.
This court has reviewed the documents entered into evidence pertaining to petitioner's mental health history, as well as considered the testimonial evidence presented in the habeas proceeding, and finds that petitioner has failed to show that his disabilities rise to the level of being legally significant.
Petitioner makes numerous claims against attorney Conroy, that he failed to: use mitigating factors in negotiating a fair plea bargain; investigate facts of the case which could be introduced as mitigating factors, including whether or not the petitioner suffered from any mental illnesses; ask for the appointment of a guardian ad litem when the petitioner was faced with a decision he was unable to make alone, even though it was clear on the record that his mother had spoken on his behalf at court appearances; and acknowledge the fact that petitioner could not knowingly, intelligently and voluntarily enter into a guilty plea.
As to these claims, the court finds that petitioner has failed to meet his burden under the Strickland/Hill test. He has neither shown deficient performance by attorney Conroy as alleged in count one. Even if this court were to assume that such a showing had been made, which has not been made, petitioner has not shown 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. Petitioner has also not shown that the alleged deficiencies (e.g., failure to discover and use mitigating factors, failure to seek appointment of a guardian ad litem, etc.) would have been successful had attorney Conroy done what petitioner presently alleges should have done. Consequently, the claim in count one, notwithstanding the testimony by Dr. Cudrin and attorney Kaatz, is without merit and must be denied.
In count two, petitioner alleges a free standing due process claim premised on the allegation that petitioner "suffers from an extremely low I.Q. in addition to other mental defects which interfere with the petitioner's ability to make responsible and rational decisions on his own and absorb and independently act on his own behalf." Petitioner could not, therefore, enter pleas that were knowing and intelligent.
Based on this court's findings of facts and the discussion in count one, the court finds that the claim in count two that he was denied his right to due process is also without merit.
The petition for a writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.
Angelo L. dos Santos, J.