Opinion
No. TSR CV06 4001056-S
April 16, 2008
MEMORANDUM OF DECISION
Presently before the court is a petition for a writ of habeas corpus filed by the petitioner, Leslie Williams, on April 20, 2006. Appointed counsel filed an amended petition on November 5, 2007. Therein, the petitioner alleges that he was denied effective assistance of counsel by his trial attorney, Dennis Harrigan. In the return, the respondent denied the material allegations of the amended petition and raised the defense of procedural default. The petitioner filed a reply on January 15, 2008, in which he denied that his claims were procedurally defaulted.
The amended petition alleged in count one, ineffective assistance of counsel by Christopher Sheehan and in count two, ineffective assistance of counsel by Dennis Harrigan. The respondent filed a motion to dismiss count one against Sheehan, which was granted by the court, Schuman, J., on November 27, 2007. Accordingly this decision addresses the only remaining claim, ineffective assistance of counsel against Harrigan.
The matter came before the court in January 2008, for a trial on the merits. Witnesses included the petitioner and Dennis Harrigan. The court finds the testimony of Harrigan to be highly credible and the testimony of the petitioner to be credible in part and not credible in part. The court has reviewed and considered the testimony and the exhibits. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
Neither party filed a memorandum of law.
FINDINGS OF FACT
The petitioner was the defendant in a criminal case pending in the Superior Court, judicial district of Waterbury, docket number CR98-0272986, in which he was charged with three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and three counts of risk of injury in violation of General Statutes § 53-21(2). Simultaneously the petitioner was charged in the Superior Court, geographical area #4, docket numbers CR96-253848 and CR96-254505 with two counts of violation of probation in violation of General Statutes § 53a-32. The petitioner was arraigned on all three matters on September 17, 1998, and thereafter was held in lieu of bond. On November 18, 1998, after a trial to the court, Damiani, J., the petitioner was convicted of two counts of violation of probation. The court reopened the judgment in both matters and sentenced the petitioner to three years incarceration.
The petitioner was represented by Christopher Sheehan in the violation of probation cases.
In connection with the pretrial proceedings in the sexual assault case, the petitioner appeared in court on approximately thirty occasions from September 21, 1998 through March 6, 2000. Ultimately, on March 6, the petitioner pleaded guilty to one count of sexual assault in the second degree and one count of risk of injury to a minor and he received a sentence concurrent to that imposed on the violations of probation. The petitioner is presently in the custody of the commissioner of correction.
Attorney Dennis Harrigan was called by the petitioner to testify at the habeas trial. Harrigan was admitted to practice in Connecticut in 1990. Initially, he was employed by attorney Frank Riccio in a practice consisting primarily of criminal defense and thereafter was self-employed for three years. Harrigan was appointed an assistant public defender in 1995 and since then has been assigned to geographical area #4, as the supervisory public defender in geographical area #2 and finally to Part A in the judicial district of Waterbury.
On June 22, 1999, Harrigan took over representation of the petitioner from Thomas Nalband, another attorney in Harrigan's office. Harrigan reviewed the materials in Nalband's file, discussed the matter with Nalband and then discussed the matter with the petitioner. The petitioner informed Harrigan that he did not sexually assault the victim, that the allegations were a fabrication and that there was "bad blood" between the victim's mother and the petitioner.
Shortly after the commencement of his representation of the petitioner, Harrigan learned that the petitioner was a sentenced prisoner. Harrigan discussed this issue with the petitioner and informed the petitioner that he was serving dead time on the sexual assault case. Despite this advisement, the petitioner insisted that he wanted to take the case to trial inasmuch as he did not want a sexual assault charge on his record. According to Harrigan, he did not file a motion for speedy trial because it could have been counter to the petitioner's best interest.
The court records of petitioner's criminal case indicate that a motion for speedy trial was filed on October 14, 1999.
Because the petitioner was "adamant" that there was no sexual assault, Harrigan prepared this case for trial, not plea. Harrigan recalls that the state alleged that the petitioner had repeatedly sexually assaulted a female relative, who was five years old. Harrigan had his investigator interview the petitioner's mother and several other people. Harrigan also obtained copies of the victim's psychiatric records and a videotape of an interview with the victim, both of which he showed to the petitioner. Harrigan and Nabland explored the possibility of hiring an expert to examine the victim. The state was also interested in having the victim examined. Both sides agreed to hire Suzanne Sgroi, a psychiatrist, for this purpose. In Harrigan's opinion, there no evidence in the petitioner's criminal case which he failed to investigate.
The state filed a Jarzbek motion which was granted by the court and the matter was continued to March 10, 2000, for the purpose of videotaping the victim's testimony. Jury selection was scheduled to commence immediately after the victim's testimony was completed. On March 6, 2000, however, the state made a plea offer to the petitioner which entailed a plea to reduced charges and a lesser total effective sentence. Harrigan conveyed this offer to the petitioner, explained the petitioner's other options and explained the risks and benefits of a plea of guilty versus a trial. Harrigan also informed the petitioner of what the state would have to prove for the jury to find him guilty of sexual assault in the second degree and risk of injury. In Harrigan's opinion, one of the disadvantages of the petitioner's case was that his defense of fabrication and malice required that he take the stand to testify to those facts. The petitioner was a convicted felon, however, and would likely have been impeached with his prior convictions.
State v. Jarzbek, 210 Conn. 396, 554 A.2d 1094 (1989).
The state's original offer was a plea to sexual assault in the first degree and risk of injury to a minor with a recommended sentence of twenty years execution suspended after ten years to be followed by ten years of probation. At some point during the pretrial proceedings, the petitioner had rejected this offer.
Additionally the petitioner had been extradited from Maine to Connecticut to face the charges in Waterbury. After his arraignment in Maine, the petitioner apparently escaped from the courthouse. This evidence could also have been used by the state to show consciousness of guilt. See the respondent's exhibit A.
After speaking with Harrigan, the petitioner decided to plead guilty. At no time did Harrigan ever represent to the petitioner that his eight-year sentence would commence on September 1998. Rather, Harrigan informed the petitioner that the sentence would run concurrent to his present sentence and would begin to run as of March 2000. The transcript of the petitioner's plea of guilty indicates that prior to accepting the petitioner's plea, the court also advised him that his eight-year sentence would begin to run on March 6, 2000, the date of sentencing.
The trial transcript contains the following colloquy:
THE COURT: You've entered an Alford plea, not admitting that you did that, but you plead for — what's the agreed upon sentence.
[STATE'S ATTORNEY]: Fifteen suspended after eight years, ten years probation, standard conditions of probation, Your Honor.
THE COURT: And you said this is to be concurrent with the sentence — you have a year left on your sentence, right?
[THE PETITIONER]: Right.
THE COURT: So that means fifteen after eight, ten years of probation concurrent. It will start to run the day you're sentenced, and the standard conditions we talked about. Do you understand that?
[THE PETITIONER]: Yes.
Criminal Trial Transcript, March 6, 2000, at 5-6.
The petitioner testified at the habeas trial that he had been represented by Dennis Harrigan in the sexual assault case. He further testified that prior to his plea of guilty in the sexual assault case, he and Harrigan had discussed his defense "several times." The petitioner "believes there is a chance [he] could have won at trial" and at all times until he pleaded guilty, he intended to try the case. The petitioner admitted, however, that he does not recall giving Harrigan the names of any witnesses to interview.
Letters from the petitioner to trial defense counsel were introduced as evidence and confirm the petitioner's desire for a trial.
On the date of his plea of guilty, Harrigan presented the petitioner with an offer from the state of a plea to sexual assault in the second degree and to risk of injury to a minor with a recommended sentence of fifteen years suspended after eight years to be followed by ten years of probation. According to the petitioner, Harrigan advised that on a plea of guilty, the petitioner would receive presentence credit from September 1998. Harrigan further advised that if he was convicted after trial, the maximum possible sentence was ninety years. The petitioner thus decided to accept the offer and pleaded "guilty after extensive coercion."
The petitioner further testified that at no time did Harrigan ever discuss the issue of dead time with him. The petitioner claims that he first became aware of the issue of dead time when the commissioner informed him that his release date was in March of 2008. The petitioner now claims that if he had known that he would not receive all of his presentence credit, he would have negotiated for a different offer or would have gone to trial.
Additional facts will be discussed as necessary.
DISCUSSION
The amended petition asserts a sole claim of ineffective assistance of counsel grounded in several alleged deficiencies of trial defense counsel in that he:"did not advise the petitioner of the change in law concerning assignment of pretrial jail credit on concurrent sentences imposed on different days," "misrepresented that if petitioner were to plead guilty to [the substituted information] he would only have to serve the eight years total for both the violation of probation sentences and the Part A sentence," "failed to develop a defense strategy or [sic] mitigating the number of days the petitioner would be required to serve in jail," and "forced the petitioner into a guilty plea." He also maintains that counsel failed to investigate the state's evidence. He contends that but for these errors, he would not have entered the guilty pleas or would have negotiated for a different offer. In the return, the respondent denied the material allegations of the amended petition and asserted that the petitioner is procedurally defaulted from raising the claims at issue. The petitioner filed a reply in which he denied that his claims were procedurally defaulted.
As to the allegations that "trial counsel did not advise the petitioner of the change in law concerning assignment of pretrial jail credit on concurrent sentences imposed on different days" and that "trial counsel failed to develop a defense strategy or [sic] mitigating the number of days the petitioner would be required to serve in jail," the petitioner did not brief these issues and no evidence or argument was presented at trial with respect to them; therefore, this court deems them abandoned. Cf. Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007).
The Supreme Court very recently re-emphasized that, "[a]s a general matter, . . . a habeas court should expressly address and resolve the threshold issue of procedural default when the issue has been raised as a defense." Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n. 23, 937 A.2d 656 (2007), citing Taylor v. Commissioner of Correction, 284 Conn. 433, 447-48 n. 18, 936 A.2d 611 (2007) (habeas court should decide threshold issue of cause and prejudice before reaching merits of habeas petition). The Supreme Court has modified this requirement, however, when the alleged cause for the default consists of ineffective assistance of counsel. In those cases, "it is simpler and more appropriate to move directly to the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] test than to apply Strickland for the purpose of making a threshold showing of cause and prejudice . . ." Johnson v. Commissioner of Correction, 285 Conn. 556, 572 (2008) citing Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988).
In the present case, the reply denies that the petitioner is procedurally defaulted, but fails to set forth either the cause for the default or the claimed prejudice. Nevertheless, given that the sole issue presented in the amended petition is a claim of ineffective assistance of counsel, this court will assume that the alleged cause of the petitioner's default is deficient trial counsel performance. The court therefore will first address the merits of the petitioner's claim of ineffective assistance of counsel for "[i]f a petitioner can prove that his attorneys performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for `cause' and will invariably have demonstrated `prejudice.'" Johnson v. Commissioner of Correction, supra, 285 Conn. 572.
Under Practice Book § 23-31(c), a reply filed in response to an affirmative defense ". . . shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition."
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United State Supreme Court in Strickland v. Washington, supra, 466 U.S. 668. To do this the petitioner must prove, by a preponderance of the evidence, both deficient performance and actual prejudice. Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002).
The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1994). "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." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, 868 A.2d 787, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005).
The second part of the test, known as the prejudice prong, was modified by the United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), to assess claims of ineffective assistance of counsel arising from a guilty plea. Copas v. Commissioner of Correction, supra, 151. Under the modified standard, "the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 706, 846 A.2d 889 (2004). The petitioner must also establish that the "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.) Calabrese v. Commissioner of Correction, supra, 88 Conn.App. 152. Thus, the petitioner in the present case must demonstrate that, but for counsel's actions, not only would he have not pleaded guilty but he also would have been successful at trial.
The bulk of the petitioner's various claims of ineffective assistance of counsel are premised on his assertion that he was erroneously advised by Harrigan that his acceptance of the state's offer would allow him to apply any presentence jail credits to the sentence, and that Harrigan's advice in that regard induced him to plead guilty. Harrigan credibly testified that prior to the plea of guilty, he informed the petitioner the offered sentence would commence to run as of the date of sentencing. Additionally the trial court specifically advised the petitioner that his sentence " will start to run the day you're sentenced." (Emphasis added.) Criminal Trial Transcript, March 6, 2000, at 6. The court also inquired, "Do you understand that?" and the petitioner responded "Yes." Id. Other than his own testimony, which this court does not find credible, the petitioner has presented no evidence to support his claim that Harrigan misled him or failed to properly advise him with respect to his sentence. The petitioner has thus failed to prove trial counsel's performance was deficient or that he was prejudiced thereby.
Similarly, the evidence does not support the petitioner's claim that he was forced into a guilty plea by Harrigan for any other reason. The evidence at the habeas trial showed that four days before the Jarzbek hearing, the state made an offer to the petitioner which entailed a plea to reduced charges and a lesser total effective sentence. Harrigan conveyed this offer to the petitioner, explained the petitioner's other options and explained the risks and benefits of a plea of guilty versus a trial. Harrigan told the petitioner what the state would have to prove for the jury to find sexual assault in the second degree and risk of injury. Harrigan also informed the petitioner that his maximum exposure if found guilty would be ninety years in prison, compared to the eight he faced if he accepted the state's offer.
The state's original offer was a plea to sexual assault in the first degree and risk of injury to a minor with a recommended sentence of twenty years execution suspended after ten years to be followed by ten years of probation. At some point during the pretrial proceedings, the petitioner had rejected this offer.
The petitioner testified at the habeas trial that he pleaded guilty because on March 6, the state changed its theory of the case from intentional intercourse to accidental intercourse, because he believed he would only serve two and one-half additional years and because he could have received ninety years after trial. In cross examination, the petitioner claimed that he pleaded guilty after "extensive coercion." The petitioner's claim of coercion is belied, however, by the criminal trial transcript which shows that during the plea canvass, the petitioner assured the court that no one had forced him or threatened him to plead guilty; moreover, he assured the court that he was satisfied with Harrigan's representation of him.
The state's first offer entailed a plea to sexual assault in the first degree while the offer which the petitioner ultimately accepted included a plea to sexual assault in the second degree.
If convicted after a trial, the petitioner faced a rather lengthy sentence. It was therefore prudent of him, particularly given the difficulties inherent in proving his chosen defense, to accept the offer to plead guilty. The petitioner testified at the habeas trial that he pleaded guilty in order to mitigate his term of incarceration. "[R]easons other than the fact that he is guilty may induce a defendant to so plead . . . [and] [h]e must be permitted to judge for himself in this respect." (Internal quotation marks omitted.) North Carolina v. Alford, 400 U.S. 25, 33, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). It is obvious that the petitioner did not enjoy the situation he was in and the choice that he had to make. There was certainly pressure on him to make a decision regarding whether or not to plead guilty, as there is with every criminal defendant faced with the possibility of spending a significant amount of time in prison. This pressure was the result of petitioner's circumstance, however, not the coercion of his trial counsel. This court, therefore, finds that the petitioner has failed to prove deficient performance. Moreover, even if counsels' performance was found to be deficient, the petitioner has failed to prove that he was in any way prejudiced by such representation.
The petitioner next asserts that counsel failed to investigate the state's evidence. The testimony and evidence adduced at the habeas trial suggests otherwise. "[A]lthough it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . 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 . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 598-99 (2008).
In the present case, Harrigan testified that, after reviewing the state's allegations against the petitioner, he had his investigator interview the petitioner's mother and several other people, and reviewed the victim's psychiatric records and a videotape of an interview with the victim. Additionally, he and the prosecution jointly hired an expert to examine the victim. Harrigan believes he reviewed all available evidence in the petitioner's case, and the petitioner has not presented any evidence to rebut this. Indeed, the petitioner testified that he did not provide the names of any potential witnesses to interview, and moreover, he has not identified any evidence or avenues that Harrigan should have but did not investigate. He has, therefore, failed to meet his burden of demonstrating deficient performance under the first prong of the Strickland test. Even assuming a showing of deficient performance, the petitioner has failed to make the required showing of prejudice as required by Strickland/Hill.
CONCLUSION
The petition for a writ of habeas corpus is denied. Petitioner's counsel is ordered to prepare and file a judgment file within thirty days.