Opinion
No. CV02-0003561
October 10, 2003
Memorandum of Decision
The petitioner, Dennis Adkins, alleges in his petition for a Writ of Habeas Corpus initially filed on February 15, 2002 and amended on April 8, 2003, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently that he should be allowed to withdraw his plea of guilty. The petitioner also alleges that there is newly discovered evidence to prove that he is actually innocent of the offense to which he pled guilty. For the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to properly conduct a pretrial investigation, failed to devote sufficient time to the case, and failed to withdraw from his representation of the petitioner. The petitioner argues that as a result; the trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
This matter came on for trial before this Court on August 21, 2003 and again on October 6, 2003. The petitioner, his trial defense counsel, Attorney Francis Mandanici, and the arresting officer, Detective Sergeant Joanne Schaller all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing, the petitioner's sworn statement to the New Haven Police, a prison disciplinary report and a statement of Jason Reese into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact CT Page 11429
1. The petitioner was the defendant in a criminal case in the Judicial District of New Haven, under Docket Numbers CR99-0484469 in which he was charged with Murder in the first degree in violation of CGS § 53a-54(a), Felony Murder in violation of CGS § 53a-54c, and Carrying a Pistol without a Permit in violation of CGS § 29a-35(a).
2. On April 4, 2000, pursuant to a plea agreement, the petitioner entered a plea of guilty under the Alford doctrine, to a single count of Felony Murder in Docket Number CR99-0484469. The Court, Fasano, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered a finding of guilty as to the count of felony murder.
In exchange for his plea of guilty to felony murder, the petitioner would receive an agreed upon sentence of thirty-five (35) years to serve, the state would enter a nolle prosequi as to all other pending charges and agreed not to pursue a charge of witness tampering based upon evidence that the petitioner may have solicited another inmate, Jason Reese, to kill Keldon Hinton.
North Carolina v. Alford, 400 U.S. 25 (1970).
At the plea canvass, the petitioner did indicate initially that he was not really satisfied with his attorney's advice and counsel. Judge Fasano then spent several minutes to ascertain what the petitioner meant by that. The petitioner never articulated why he felt dissatisfied, however. Nevertheless, eventually the petitioner stated that he was pleading guilty on the advice of counsel and that he, the petitioner, was satisfied that he was doing the right thing.
3. The petitioner came back before the Court for sentencing on May 26, 2000. At that time, the petitioner attempted to withdraw his guilty plea, however, Judge Fasano denied the request and proceeded to sentence the petitioner to the agreed-upon sentence of thirty-five years to serve.
4. At the sentencing, the petitioner complained about Attorney Mandanici's representation and told the Judge that he did not commit the murder.
5. The following facts were recited by the prosecutor at the time of the guilty plea and are found to be provable in connection with the August 24, 1999 incident in which the petitioner was charged with felony murder.
a. Around 10:27 p.m., on August 24, 1999, "in front of 119 Dewitt Street in New Haven, the victim of this case, Rodney Williams, was on the front porch and a person wearing a mask came down the driveway and confronted two people standing in the driveway, one of them a young lady. The person in the mask grabbed the ladies (sic) chain from around her neck. She grabbed it back. She and her boyfriend who were in the driveway indicated that the person was wearing a mask and had a handgun in his hand. According to witnesses out front the individual came down the driveway with the mask and confronted the victim in this case who was standing on the front steps or on the ground near the front steps, confronted the victim with a handgun and the victim came down off the steps and went toward the assailant and there was a short tussle during which the assailant fired a series of shots, one of which hit the victim, Rodney Williams, in the chest and caused his death."
Petitioner's Exhibit 1, pp. 2-3.
10. The petitioner was arrested by the New Haven police about a month after the murder and provided an inculpatory statement to the police.
This statement has been admitted as Petitioner's Exhibit 2. It is a 37-page transcription of a tape-recorded statement given to Detective Sergeant Schaller. The statement is quite clear as to the fact that the petitioner was involved in a robbery, got into an altercation with the victim and thereafter shot the victim during this altercation.
11. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary plea of guilty to the charge of felony murder in violation of CGS § 53a-54c. Moreover, he asserts a claim of actual innocence to the charge.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra, at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his pleas of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the courts subject matter jurisdiction. State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty plea is valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with several serious charges. Had he gone to trial on this matter and been convicted, he would have faced a potentially long period of incarceration, possibly for the remainder of his natural life. His total "exposure" was, therefore, high.
In addition to the testimony of the witnesses to the murder, the petitioner had confessed to this crime. To be sure, the petitioner now asserts that he was under the influence of illegal drugs at the time he made the statement, that the statement is false and that he only did it because he did not want to be labeled a "snitch." However, these assertions are not worthy of belief. Insofar as being under the influence of drugs at the time the statement was made, there are two factors that undermine the credibility of this assertion. First, the petitioner was arrested at about 10:00 a.m. on September 23, 1999. The statement was taken between 7:46 p.m. and 8:17 p.m. on that day. According to the petitioner he ran from the police and swallowed some unspecified amount of crack cocaine that he had on him. There has been no evidence presented to this habeas court that would allow the court to conclude that a person who had ingested cocaine would still be under the influence of that drug nearly ten hours later. Significantly, there has been no evidence adduced to allow this court to conclude what, if anything, the ingestion of cocaine might do to a person's cognitive abilities. However, it is more or less colloquially known that the effects of cocaine are relatively short lived. Second, the testimony of Detective Sergeant Schaller, who coincidentally has training as an EMT paramedic, is clear that the petitioner was not exhibiting any outward signs of drug intoxication, nor did he complain of any illness or impairment. Moreover, there is some evidence that the idea to argue intoxication as a means to invalidate the confession originated with another inmate, Jason Reese. All of this leads this court to conclude that the petitioner's statement attacking his confession is self serving and unworthy of belief.
At the habeas trial, the petitioner identified the substance as cocaine. His trial defense counsel testified that the petitioner told him that it was "Illy," i.e marijuana laced with embalming fluid. Mr. Jason Reese, in his statement to the police, said he recommended to the petitioner that he claim to be under the influence of "Dust," i.e PCP.
At the time he entered his guilty plea in April 2000, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a favorable sentence.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even, in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, 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.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper counsel may well be providing ineffective representation.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 338 at 361 (1970).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. CT Page 11433 Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He 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.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court seeking to set aside his plea of guilty on the ground that his attorney did an inadequate job of pretrial preparation. However, the evidence presented to this court clearly shows that the trial defense counsel did do an adequate job of preparing for trial. There has been nothing presented to this court that would permit a finding that the plea of guilty was induced by the sub-standard performance of the trial defense counsel. Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland; infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000). "Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still 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." Strickland; infra at 694. Here, the petitioner voluntarily entered into this plea bargain, was ably represented by counsel who did conduct an adequate pretrial investigation, and he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction. (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
Additionally, this Court is convinced that had the petitioner elected to plead not guilty and take his case to trial, it is likely that he would have been found guilty. It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn. App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den., 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
There is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 375-58 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000), Freed J. Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke vs. Commissioner, 43 Conn. App. 374 (1996).
Most notably, in Clarke v. Commissioner, 249 Conn. 330 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. [The Appellate Court] concluded that `a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997), in which the standard of proof was discussed. This will be reached later in this decision.
Despite the allegation contained in the amended petition, the petitioner has not submitted anything even remotely resembling "newly discovered evidence." Consequently, on that basis alone, this court would be justified in rejecting the claim of actual innocence.
Here, the petitioner has been found guilty through his own plea. He enjoyed the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that plea and order a new trial. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is no basis upon which to set aside the guilty plea, and even had there been a basis to do so, the available evidence pointing to the petitioner's guilt is strong. In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Moreover, not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997).
There was, of course, no trial in the first proceeding in which the evidence was tested before a jury. The court is left with the prosecutor's statement of facts at the guilty plea and must, therefore, assume their credibility.
The Petition for a Writ of Habeas Corpus is denied.
S. T. Fuger, Jr., Judge