Opinion
No. CV 05-4000482 S
June 26, 2008
MEMORANDUM OF DECISION
The petitioner, Jason M. Bishop, brought this habeas corpus action on April 27, 2005. He alleges, in a five-count amended petition filed October 22, 2007, that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to counsel, to conflict free counsel, to the effective assistance of trial counsel in the investigatory and plea bargaining stages, to due process in that his guilty pleas were involuntary, and to the effective assistance of counsel in preserving his appellate rights. The respondent filed a return on November 16, 2007, denying the material allegations of the petition and denying that he is entitled to habeas corpus relief. The respondent also raises the special defense of procedural default to the allegations in count four that the petitioner's plea was involuntary.
The matter came before the court on February 6, 2008 and March 4, 2008 for a trial on the merits. Witnesses included the petitioner, his trial counsel, attorney T.R. Paulding, and the prosecutor on the petitioner's criminal cases, senior assistant state's attorney David Zagaja. The parties submitted documentary evidence including transcripts of the plea hearings, medical records and police reports.
FINDINGS OF FACTS
The court finds the following facts. The petitioner was the defendant in two cases pending before the Superior Court at Hartford, Docket Nos. CR 99 0113975 and CR 00 114655. In each, he was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92. The petitioner retained attorney Paulding to defend him in these matters, as well as a number of other criminal cases pending before the Superior Court at Enfield (the "Enfield cases.") The petitioner initially elected to plead not guilty to the charges in both Hartford cases, and the parties subpoenaed witnesses and selected a jury. Before the cases proceeded to trial, however, and after extensive discussions between himself and attorneys Paulding and Zagaja, on January 15, 2002 the petitioner entered nolo contendere pleas to all counts in both Hartford cases in return for a total recommended sentence of thirteen years incarceration followed by fifteen years of special parole. The agreement also involved the petitioner pleading nolo contendere to the charges in the various Enfield cases, with the sentences for those crimes to be served concurrently to the sentences in the Hartford cases. The state's offer had previously been for sixteen years to serve, but was reduced after the discovery of certain evidence in Docket No. CR 99 0113975; specifically, the victim's undergarments and a used condom with traces of the victim's DNA found in the petitioner's garbage.
The allegations against the petitioner in CR 99 0113975 were as follows. Early in the morning on November 7, 1999, he had called up the victim, with whom he was previously acquainted, to come over his house after she returned from a club. The victim drove to his house, where after a brief argument the petitioner ripped off her clothes and physically forced her to have intercourse with him against her will. The petitioner was drunk at the time. The victim struggled with the petitioner throughout, and eventually managed to hit him in the face, knock him back and flee from the house. She did not mention the use of a condom.
Subsequently, at the sentencing hearing on January 25, 2002, the petitioner, against the advice of counsel, made an oral motion to withdraw his pleas. The court, Solomon, J., denied the motion on the basis that the only change since the pleas were entered was that the petitioner had changed his mind, an occasion that the court had previously informed the petitioner would not be sufficient grounds for withdrawal. Attorney Paulding did not argue on behalf of the petitioner's motion, and openly expressed his feeling that the plea bargain was a favorable disposition of the charges. The court imposed the agreed-upon sentence of thirteen years incarceration followed by fifteen years special parole. No appeal was taken, and the petitioner was not advised of his right to appeal by attorney Paulding. There is no indication that he had actual notice of his ability to appeal. Subsequently, the petitioner was sentenced in the Enfield cases. Several charges were nolled, and he pleaded guilty under the Alford doctrine to other charges and was sentenced to a total of ten years incarceration, to be served concurrently with the Hartford sentences. The petitioner does not seek to vacate the pleas on the Enfield cases. The petitioner's total exposure between the Hartford and Enfield cases was approximately 147 years and 9 months incarceration.
The sentence breaks down as follows: for Docket No. 99 0113975, ten years incarceration, with a mandatory minimum of two years, plus ten years special parole on the sexual assault charge and thirteen years incarceration plus seven years of special parole on the kidnapping charge, to run concurrently. For Docket No. CR 00 114655, the petitioner was sentenced to three years incarceration, two of which are a mandatory minimum, followed by five years of special parole on the sexual assault charge, and thirteen years incarceration followed by seven years of special parole on the kidnapping charge, to run concurrently with each other and the sentences for the first case. The defendant was also ordered, on both of the sexual assault sentences, to register as a sex offender, receive sex offender treatment and have no contact with the victims whatsoever.
"A defendant may enter an Alford plea in the face of strong evidence of factual guilt without admitting guilt to the charged crime. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)." Council v. Commissioner of Correction, 286 Conn. 477, 480 n. 3, 944 A.2d 340 (2008).
The Enfield sentences break down as follows: Docket No. CR 99 0112004, five years to serve; Docket No. CR 01 0118946, five years to serve, consecutive to Docket No. CR 99 0112004 but concurrent to the Hartford cases; Docket No. CR 00 0116657, five years to serve, concurrent with all previous sentences; Docket No. CR 00 116879, one year to serve, concurrent to all previous sentences; Docket No. CR 00 0116600, six months to serve with 48 hours mandatory minimum, concurrent with all previous sentences; Docket No. CR 97 0106046, five years to serve, concurrent with all previous sentences.
The petitioner now challenges only the sentence arising from one of the Hartford cases, Docket No. CR 00 114655. He contends that he was pressured into pleading nolo contendere, and that had he known the nature of the newly discovered evidence in that matter, he would instead have chosen to go to trial. He also claims that his attorney was ineffective in failing to move to withdraw his plea and in failing to file an appeal of the conviction.
Additional facts will be discussed as necessary.
CT Page 10641
DISCUSSION
"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 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).
"It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
A. Count one: Deprivation of counsel
The petitioner first claims that, because attorney Paulding did not argue in favor of his oral motion to withdraw his plea, he was deprived of trial counsel in violation of the sixth and fourteenth amendments of the United States constitution. The respondent counters that the petitioner was not proceeding pro se, and that attorney Paulding continued to represent him throughout the plea and sentencing phases.
"The pleading and plea bargaining stages of a criminal proceeding are critical stages in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the sixth amendment." Johnson v. Commissioner of Correction, 36 Conn.App. 695, 707, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). "A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in [Practice Book §]39-27 . . ." Practice Book § 39-26. Section 39-27 provides in relevant part: "The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows: (1) The plea was accepted without substantial compliance with Section 39-19; (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; [or] (4) The plea resulted from the denial of effective assistance of counsel . . ."
As a preliminary matter, this court notes that, although the petitioner characterizes his claim as "deprivation of counsel," the claim must be viewed instead as an ineffective assistance of counsel claim. "In certain types of cases, prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost, and so it is presumed . . . This occurs when (1) the defendant is denied counsel at a critical stage; (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; or (3) counsel is called upon to represent a client in circumstances under which no lawyer could provide effective assistance. [ United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039 (1984).]" (Citation omitted; internal quotation marks omitted.) Hutton v. Commissioner of Correction, 102 Conn.App. 845, 855, 928 A.2d 549, cert. denied, 284 Conn. 917, 931 A.2d 936 (2007). However, "[c]ourts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice." (Internal quotation marks omitted.) Id., 856. Thus, contrary to the petitioner's contention, "denial of counsel" does not mean lack of adequate representation; it means the literal prevention of legal representation. Attorney Paulding's representation of the petitioner was never interrupted and the petitioner never expressly proceeded pro se. Therefore, analysis under the Strickland standard is applicable. Cf. State v. Johnson, 253 Conn. 1, 55, 751 A.2d 298, reh. denied, 254 Conn. 909, 755 A.2d 880 (2000) (no error in trial court's failure to appoint new counsel when defendant attempted to withdraw plea in personal statement to court at sentencing); see also United States v. Davis, 239 F.3d 283, 285 n. 2 (2d Cir. 2001) (on remand to district court, determined that counsel had not ceased to represent defendant though not supporting his pro se motion to withdraw). Thus, the petitioner's only avenue for relief on this basis is through a claim of ineffective assistance of counsel.
The court in Cronic characterized the first prong thusly: "The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." United States v. Cronic, supra, 466 U.S. 659.
Research revealed no Connecticut cases involving an identical situation to the case at bar, where a defendant pleads guilty but later moves to retract that plea, and is openly opposed by counsel in doing so. The petitioner relies on In re Prescott, 149 Cal.App. 4th 243 (2007), wherein the California court of appeals appointed special counsel to the defendant for the purpose of investigating whether there was a legal basis to withdraw the plea, since the petitioner's attorney felt she had a "conflict" because she had negotiated and assisted the petitioner in entering the plea. The court did not hold that the attorney's failure to file a motion to withdraw the plea was itself improper; rather, the court focused on the attorney's disclosure of confidential information and his "actively advocating against" allowing his client to file the motion, and reasoned that "[t]here is no failure of representation more complete than an attorney advocating against his client." This court does not find Prescott persuasive. The relationship between counsel and the defendant was fundamentally different: "Appointing an attorney ostensibly to act as counsel for the defendant, but whose directive from the court is to determine whether there exists a basis for a motion to withdraw a guilty plea, sets up an inappropriate dynamic by which the court in effect asks defense counsel to act in the court's interest, not the interest of the client." Attorney Paulding, while perhaps not following his client's express wishes, was still representing the petitioner and looking out for what Paulding believed were the petitioner's best interests. He also did not reveal particularly sensitive or confidential information at the hearing, even if he did briefly discuss his reasons for not supporting the motion. Additionally, this court notes that the Appellate Court's decision in Prescott was subsequently ordered "depublished" by the California Supreme Court. See Prescott (Edward B.) on H.C., 2007 Cal. LEXIS 6855 (Cal. June 13, 2007).
The petitioner's argument, therefore, amounts to a claim that attorney Paulding was ineffective in failing to support his motion to withdraw his plea. This claim fails, however, because the petitioner cannot establish prejudice under Strickland based on his attorney's conduct at the sentencing hearing. There were only three grounds on which he could conceivably have withdrawn his plea: if it was accepted without substantial compliance with § 39-19, if it was made involuntarily or without sufficient understanding of the charges, or if it was the result of ineffective assistance of counsel. Practice Book § 39-27. The record reveals that the trial court extensively canvassed the petitioner before accepting the plea. A competency examination was held pursuant to General Statutes § 54a-56d and the defendant was deemed competent to stand trial. There is no indication that the petitioner did not understand the charges against him.
Although the petitioner is correct that the sentencing judge did not expressly specify, pursuant to § 39-19, that violation of § 53a-70 carried a two-year mandatory minimum sentence, this cannot reasonably have influenced his decision to plead guilty. "[B]ecause the determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances . . . the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [§§ 39-19 and 39-20] . . . Thus, although the trial court never expressly informed the defendant of the mandatory minimum sentence . . . as required by [§ 39-19(2)], that fact alone is not dispositive . . . [The court] must determine, instead, whether, in light of all of the circumstances evident from the record before us, the trial court's failure to inform the defendant of the statutorily required minimum sentence rendered his guilty plea unknowing or involuntary." (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 44-45; see also State v. Wheatland, 93 Conn.App. 232, 241-42, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006) (failure to inform defendant of mandatory minimum did not void guilty plea because would not have influenced decision to plead guilty). In the present case, the petitioner was accepting a plea bargain of thirteen years imprisonment. In the most favorable scenario, he would have been eligible for parole after serving 50% of his sentence, or 6.5 years, well over the two-year mandatory minimums of § 53a-70. See General Statutes § 54-125a. Therefore, the court's failure to point out the mandatory minimums of two years to the defendant would not have influenced his decision to plead guilty.
The petitioner relies on State v. Bowden, 53 Conn.App. 243, 250, 729 A.2d 795 (1999), where the court incorrectly told the petitioner he faced thirty years instead of twenty years in prison. The court reversed the trial court's denial of the petitioner's motion to withdraw his plea because the prospect of more jail time than he faced could clearly have influenced the petitioner's decision to plead guilty. In the present case, unlike in Bowden, the mandatory minimum sentence would have no effect on the length of time the petitioner would have to spend in prison. Additionally, failure to inform a defendant of the maximum sentence, as in Bowden or State v. James, 197 Conn. 358, 497 A.2d 402 (1985), was expressly distinguished from the failure to inform a defendant of a mandatory minimum sentence in State v. Johnson, supra, 253 Conn. 46 n. 45.
The petitioner also claims that the sentencing judge did not comply with § 39-19 when he defined "abduction," an element of kidnapping, as "either holding the person in a place where she's not likely to be found or using or threatening to use physical force or intimidation," since a necessary element of abduction is restraint with the intent to prevent liberation. General Statutes § 53a-91. While, as the petitioner suggests, this may not be entirely "inconsequential," it fails to rise to the level of error that would render the canvass deficient. The petitioner had discussed the charges, the state's burden of proof and merits of the case with counsel. The judge also specifically informed the petitioner that "unlawfully restrain[ing] the person . . . abducted" was an element of the kidnapping charges. Inherent in the "use of force" with the effect of "unlawfully restraining" another person is the intent to prevent their liberty. The petitioner argues that the "intent to prevent liberty" element would be most difficult for the state to prove, but this court fails to see how proof of "holding a person where they are not likely to be found" or the "use of force," coupled with "the intent to sexually abuse the person" could not lead to the inescapable conclusion that a defendant intended to prevent the person's liberty. The petitioner argues that "where . . . a defendant timely moves to withdraw his plea before sentencing, the relevant inquiry is not whether it would have changed petitioner's plea, but whether the trial court substantially complied with §§ 39-19 and 39-20; " however, "substantial compliance" need not be an in-depth description of each and every element of the crime. "Defense counsel generally is presumed to have informed the defendant of the charges against him. [E]ven without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit . . . [U]nless a record contains some positive suggestion that the defendant's attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies . . .
Cf. State v. Suggs, 209 Conn. 733, 762, 553 A.2d 1110 (1989): "[T]he `concealment' prong [of abduction] is not so distinct from the other prong of `using or threatening to use physical force or intimidation' . . . because . . . it is difficult to conceptualize how a kidnapper could conceal a victim without `using or threatening to use physical force or intimidation.' " (Internal quotation marks omitted.)
"In fact, this court has stated that the trial court need not describe every element of the offense. Our courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged . . . The trial court's failure to explicate an element renders the plea invalid only where the omitted element is a critical one . . . and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." (Citations omitted; internal quotation marks omitted.) State v. Barnwell, 102 Conn.App. 255, 259-61, 925 A.2d 1106 (2007). The petitioner in the present case was adequately informed of the nature of the charges against him, and his claim in this regard is without merit.
The petitioner's next claim is that withdrawal of the plea would be warranted on the ground that it was made involuntarily. This claim is without merit, as will be fully discussed in the context of count four, where the claim of involuntariness of the plea was raised directly. Therefore, the petitioner cannot succeed on these grounds.
The petitioner's final argument with respect to his claim that there were plausible grounds for withdrawal of his plea is that the plea was the result of ineffective assistance of counsel. The ineffective assistance of counsel claims raised in count three are dispositive of this claim, and will be discussed in due turn.
B. Count two: Conflict of interest
The petitioner next claims that his counsel was burdened by an actual conflict of interest that adversely affected his performance at the sentencing and plea withdrawal hearing. He argues that defense counsel argued against his own client's plea withdrawal motion and disclosed the nature of attorney-client communications in an effort to prove that his own performance was not deficient, thus placing counsel's own interests at odds with the petitioner's.
"[T]here is an actual conflict between lawyer and client when, during the course of the representation, the attorney's and defendants' interests diverge with respect to a material factual or legal issue or to a course of action." (Internal quotation marks omitted.) Armienti v. United States, 234 F.3d 820, 824 (2nd cir. 2000). If the petitioner can show that the conflict "adversely affects performance, the defendant is not required to demonstrate prejudice; prejudice is presumed . . . To prove adverse effect, the defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." (Citation omitted; emphasis added; internal quotation marks omitted.) Id.; see also State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002) ("Once a defendant has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict . . . To prove a lapse of representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests."); Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991).
The petitioner's argument is that his claims regarding his plea — that it was not knowing, intelligent and voluntary, or that it was the result of ineffective assistance of counsel — were plausible alternative defense strategies that counsel could have pursued were it not for his conflicting interests. As this court has determined, however, none of these claims were viable or likely to be successful, and, therefore, cannot be considered "plausible alternative defense strategies."
Additionally, there is no indication that counsel forewent these strategies because of his alleged conflict or because he feared exposure to ethical violations or malpractice; attorney Paulding testified that he considered whether reasonable grounds for a plea withdrawal existed but determined there were none. He sincerely felt that the withdrawal was not in his client's best interests and, furthermore, felt there was no legitimate basis for the withdrawal. An attorney may have an actual conflict of interest when faced with a dilemma: "to argue in favor of his client's motion would require admitting serious ethical violations and possibly subject him to liability for malpractice; on the other hand, any contention by counsel that defendant's allegations were not true would contradict his client . . .
"[H]owever, not every disagreement with defense counsel amounts to a conflict of interest . . . [I]t is to be expected that counsel will often be placed in the difficult position of having to comment on an asserted disagreement with her client, if only to inform the court as to whether she believes that she can continue the representation . . . Consistent with th[is] limitation . . . Lopez [v. Scully, 58 F.3d 38, 41 (2d Cir. 1995)] should not be read as holding that the mere accusation of coercion, without more, is sufficient to create a conflict of interest. See United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000). In Lopez, a conflict arose when defense counsel was placed in the position of having to contradict his client in order to protect himself from allegations of malpractice and potential liability. On the other hand, and as is frequently the case, if a defendant's allegations describe only competent counsel's candid advice about the risks of going to trial, counsel will not be placed in an actual conflict between advocating for his client's interests and his own. In Moree, we held that no actual conflict existed where the defendant had not at sentencing accused his attorney of coercing him to plead guilty, and thus did not put his attorney in the position of having to defend himself. In addition, in Moree, the defendant had not applied to revoke his plea, and thus even if he and his attorney had contradicted each other, such contradictions would not have hindered an application for relief." (Citations omitted; emphasis added; internal quotation marks omitted.) United States v. Davis, supra, 239 F.3d 286-87.
A trial court's canvass protects a defendant from unknowingly entering into a plea agreement, or entering into it under coercion. With these safeguards in place, it makes little sense to suggest that trial counsel is presented with a "conflict" whenever a defendant changes his mind about a plea. This court does not credit the petitioner's testimony in the present case that his attorney conspired with the prosecution to "coerce" him into accepting the plea deal, and there is no further evidence of a conflict of interest. No claim of a conflict was raised at trial, and counsel was therefore not in the position of having to defend or protect himself at the expense of his client's interests.
Put another way, "[c]onflicts of interest . . . may arise between the defendant and the defense counsel. The key here should be the presence of a specific concern that would divide counsel's loyalties. In some instances, defendants have sought (usually unsuccessfully) to convert general incompetence claims into conflict claims by arguing that the interest of counsel in protecting his reputation, in adhering to a particular philosophy, or in minimizing his effort constituted a conflicting interest that divided his loyalties. Typically, however, courts have looked to cases in which a representation fully devoted to [the] defendant's interest is likely to produce an adverse consequence unique to the individual case. Thus, the paradigm case is that in which the lawyer representing the defendant fears opening himself up to a criminal prosecution because he is under investigation for an offense relating to the same events." (Internal quotation marks omitted.) State v. Barnes, 99 Conn.App. 203, 217, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).
Nothing of the sort happened in the present case. Counsel was advocating for the best interests of his client. Of course, there are situations where counsel must advocate in accordance with his client's wishes despite a firm belief that it is not to his client's benefit. While the decision to plead guilty is an unconditional right, however, wherein counsel must abide by his client's wishes, the decision to withdraw a guilty plea is not an unconditional right, and therefore affords much more leeway to counsel. See State v. Giorgio, 169 Conn. 624, 629, 363 A.2d 1024 (1975) ("A defendant has no absolute right to withdraw a plea of guilty"). This court concludes that no conflict of interest existed in the present case.
C. Count three: Ineffective assistance of counsel
The petitioner raises three specific ways in which counsel was ineffective: attorney Paulding (1) failed to investigate, research and pursue a plea withdrawal motion, (2) failed to adequately explain to petitioner the results in forensic testing completed in Docket No. CR 99 0113975, and (3) caused the prosecutor on the case, attorney Zagaja, to meet with the petitioner alone and coerce him into pleading guilty.
The petitioner first argues that counsel failed to adequately explain to the petitioner the results of forensic evidence in Docket No. CR 99 0113975. He claims that he was never given a chance to review the evidence of the victim's DNA found on the condom and that, if he had, he would not have pleaded nolo contendere. Attorney Paulding, however, testified that he informed the petitioner of this evidence before the petitioner's plea, although he did not remember actually showing the reports to the petitioner.
Even assuming, arguendo, that the failure to give the actual lab reports to the petitioner was deficient performance, the petitioner has failed to establish prejudice. He contends that the used condom tends to prove consensual sex, and also impeaches the victim's claim that no condom was used. This evidence is countervailed, however, by the panties and bra found along with the condom, which corroborate her claim that she was forced to flee hurriedly to escape and tend to show lack of consent. Moreover, attorney Paulding testified that in order to prove the petitioner's stated defense of consent, the petitioner would have had to testify and would then be subject to impeachment by his previous felony convictions. The petitioner had stated to the police that he could not fully remember the incident because he was drunk at the time. While the condom as evidence did lend support to the petitioner's case, it was far from a slam dunk in the face of strong opposing evidence.
Finally, what the petitioner consistently fails to recognize is that, had he not accepted the plea, even if he could have beaten the charges in Docket No. CR 99 0113975, he faced even longer sentences in the companion Docket No. CR 00 114655 and additional liability in the Enfield cases. The resolution by plea in the Hartford cases was the determinant in the concurrence of the Enfield and Hartford sentences. The petitioner faced a total of 147 years and 9 months on all the charges, and was not likely to receive a more favorable sentence even if fully acquitted on the charges in Docket No. CR 00 114655. Moreover, even if acquitted in that case, he would still have to register as a sex offender pursuant to a conviction in Docket No. CR 99 0113975. The petitioner had the burden of demonstrating that there is a "reasonable probability that he would have pleaded not guilty and proceeded to trial on the basis of the likelihood that his defenses would succeed in providing a more favorable outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 157 n. 10, 662 A.2d 718 (1995). He has, therefore, failed to establish prejudice.
The petitioner next claims that counsel was ineffective in failing to consider, research and pursue a withdrawal motion. Attorney Paulding testified that he did consider the possibility of withdrawing the plea, but concluded there was no basis for such motion. The petitioner did not inform Paulding of his desire to withdraw the plea until the morning of the sentencing hearing, several weeks after entering the plea. Attorney Paulding thus had little time in which to investigate. This court has already concluded above that there was no basis for such a motion. Therefore, the petitioner has failed to establish either deficient performance or prejudice on this ground.
The petitioner's next claim is that his attorney was ineffective in that he conspired with the prosecution to coerce the petitioner into accepting the plea. As discussed below, in count four, this claim is without merit.
D. Count four: Pleas not knowing, intelligent and voluntary
The petitioner's next claim is that the plea was not knowing, intelligent and voluntary because it was coerced by both the state's attorney and his own counsel. This court does not find this contention credible. The petitioner was asked by the judge, both at his original plea hearing, and then subsequently at his sentencing hearing after the petitioner had orally moved to withdraw the plea, whether anyone had pressured him to make the plea or put him under duress. Both times, he responded in the negative. Both attorneys Paulding and Zagaja testified that no threats were made to the petitioner regarding the plea agreement. The petitioner testified at the habeas trial that he did not inform the judge of the alleged coercion because he was afraid it would increase his exposure in the Enfield cases. This, however, would necessarily have happened because of the nature of the plea agreement, not through any conspiracy or undue pressure by the prosecution; for the sentences in Enfield to run concurrently with those of the Hartford cases was conditioned on the petitioner accepting the plea offer on the Hartford cases. That is, the only reason the Enfield cases were not being prosecuted fully was because the petitioner had agreed to accept the Hartford plea. Therefore, any increase in his exposure in Enfield would inhere in his failure to accept the Hartford plea agreement. There is no indication of coercion other than the petitioner's own self-serving testimony. Therefore, he has failed to show that the plea was not knowing, intelligent and voluntary on this basis.
The respondent has raised a special defense of procedural default on this claim, as it was not raised in the trial court or on appeal. To counter claims of procedural default, a petitioner must show cause for the default and establish that prejudice has resulted. Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). The petitioner contends that the reason he did not appeal was because of duress due to threats made by the prosecution, which he contends is sufficient to establish cause for the default. The petitioner also argues that his failure to raise the claim at trial or on appeal was due to the ineffective assistance of counsel. Therefore, pursuant to Johnson v. Commissioner of Correction, supra, 285 Conn. 571-72, the petitioner's claim in this regard must be analyzed under the Strickland standard.
The petitioner testified that he was alone in the room with attorney Zagaja. Both attorneys Zagaja and Paulding testified that Paulding was either just in the room or right outside the open doorway when the exchange occurred. While this court finds this setup slightly unusual, there is no evidence of foul play or indication of coercion beyond the petitioner's testimony, and this court credits both attorneys' testimony that attorney Paulding was within sight and earshot of the petitioner throughout the discussion.
The petitioner next claims that his plea was invalid because he was under the influence of the psychoactive Trazadone during the plea canvass and was supposed to have been seen by a mental health professional on that morning, yet was not. No evidence was proffered at trial regarding these claims, and they are therefore deemed abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007).
The petitioner's remaining claims in count four, that the court and his attorney failed to adequately advise him of the charges against him and his potential exposure, have been dealt with above and found meritless. Therefore, the petitioner cannot succeed on these grounds.
E. Count five: Ineffective assistance of counsel in not preserving appellate rights
The petitioner's final claim is that his counsel was ineffective in not informing petitioner of his right to pursue an appeal. The respondent counters that the petitioner did not express to counsel a desire to appeal, and that a rational defendant in the petitioner's situation would not have wanted to because there were no nonfrivolous grounds for an appeal.
"[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known . . . Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings . . . Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal . . .
"The second part of the Strickland test . . . requires the defendant to show prejudice from counsel's deficient performance . . . [T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed . . . [W]hether a given defendant has made the requisite showing will turn on the facts of a particular case . . . [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." (Citations omitted; internal quotation marks omitted.) Chant v. Commissioner of Correction, 255 Conn. 1, 9-10, 761 A.2d 740 (2000), citing Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). The court in Ghant recognized that there was no need for a defendant to prove that the appeal would have been successful, only that he would have taken the appeal. Id., 10 n. 6.
There is no evidence in the present case that counsel consulted with the petitioner about an appeal, and no indication that the petitioner specifically asked counsel about an appeal or that the possibility was ever raised between them. Therefore, this court must consider whether a rational defendant in the petitioner's position would have appealed.
This analysis requires a court to consider whether there are any nonfrivolous grounds for appeal, applying the factors from Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). "Thus, if a defendant can demonstrate either that: (1) the issue is debatable among jurists of reason; (2) a court could resolve the issue in a different manner; or (3) the question is adequate to proceed further, then the defendant's appeal is not frivolous as a matter of law and, therefore, counsel has a constitutionally imposed duty to consult with the defendant about an appeal under Ghant . . . A defendant, therefore, may prevail on a claim of ineffective assistance of counsel under Ghant if he can satisfy any one of the Lozada criteria. Once he has done so, he must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." (Citations omitted; internal quotation marks omitted.) State v. Turner, 267 Conn. 414, 433, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S.Ct. 36, 160 L.Ed.2d 12 (2004).
This court does not find that any of the three criteria have been satisfied here. The petitioner's original plea of guilty was the result of a calculated decision, based on his potential exposure and likelihood of success at trial, to accept the state's offer. While he may, understandably, have balked in the face of an impending thirteen-year sentence, this is an insufficient basis on which to withdraw a properly accepted plea after a satisfactory canvass. Any attempts by attorney Paulding to assist the petitioner in withdrawing his pleas had little chance of success, and an appeal would have been frivolous. At any rate, the petitioner has failed to proffer any claims that could have been raised on appeal distinct from those fully addressed in the current habeas petition. Therefore, the petitioner has failed to demonstrate that he is entitled to habeas corpus relief, and his petition is hereby DENIED. The petitioner shall submit a judgment file to the court within thirty days.
It is so ordered.