Opinion
No. CV 06 4001098
January 14, 2008
Memorandum of Decision
In this habeas corpus case, the primary issue is whether, under the circumstances of this case, the petitioner's trial attorney rendered ineffective assistance of counsel by advising the petitioner against accepting a plea agreement with a recommendation of a specific term in prison in favor of an open plea with no recommendation. The court concludes that trial counsel rendered ineffective assistance and that the petitioner was prejudiced thereby. Accordingly, the court orders the case returned to the sentencing court so that the petitioner can receive the opportunity to accept the plea agreement with a specific term.
I
The court finds the following facts. In 2005, the petitioner was originally charged in G.A. 23 in New Haven in several informations with violation of a conditional discharge, carrying a dangerous weapon, disobeying an officer's signal, unlawful restraint in the first degree, conspiracy to commit assault in the second degree, assault in the third degree, threatening in the third degree, and two counts of attempted assault on a police officer. The maximum sentence that the petitioner could serve on the violation of conditional discharge was six years and four months. On the other charges, the petitioner faced exposure of approximately thirty-five years. Thus, the petitioner's total maximum exposure exceeded forty-one years.
Representing the petitioner at all relevant times was attorney Richard Silverstein of New Haven. Silverstein had represented the petitioner in criminal matters previously. Silverstein discussed the new cases several times with the prosecutor in G.A. 23, assistant state's attorney John P. Doyle, who offered to recommend a sentence of six years to serve in exchange for guilty pleas on violation of conditional discharge, at least one count of attempted assault on a police officer, and several misdemeanors. On July 21, 2005, Silverstein told Doyle that the petitioner had rejected the offer. The petitioner thereupon entered not guilty pleas to the charges.
Doyle nonetheless kept the offer open. At a pretrial conference on August 3, 2005, the state formalized its offer as a recommendation of ten years execution suspended after six years, with five years probation. The court, Alexander, J., indicated that it thought the offer was appropriate, adding only that the five years could be a conditional discharge instead of probation. Silverstein opposed the offer, contending that the proposed six years to serve was too much.
Nonetheless, Silverstein conveyed the six-year offer to the petitioner. Silverstein advised the petitioner of two other options: proceed to a hearing on the violation of conditional discharge, or enter an "open plea" — one with no recommendation — before Judge Richard Damiani, who was assigned to hearing such matters. Silverstein added: "You probably would not do much worse with Judge Damiani," or words to that effect. Silverstein made this comment based on his twenty years of experience in the New Haven criminal courts and many years of appearing before Judge Damiani. At no point did Silverstein recommend that the petitioner accept the six-year offer. The petitioner would have accepted the six-year offer had Silverstein recommended it.
The case returned to court on August 31, 2005. Although the case was scheduled for a hearing on the violation of conditional discharge, Silverstein told Judge Damiani that there would be a plea. Silverstein stated: "I told [the petitioner] that we'd rather have you determine what would be the appropriate sentence because you've had some experience in criminal law and sentencing people." The petitioner then pleaded guilty under the Alford doctrine to violation of a conditional discharge for a felony, two counts of assault in the third degree, and one count of attempt to assault a police officer. There was no mention of any plea agreement on the record. Judge Damiani canvassed the petitioner thoroughly and advised him that he could receive a sentence of eighteen years and four months. The court ordered a presentence investigation and continued the matter for sentencing.
The presentence investigation reported that the petitioner, who was thirty-two years old, had the following criminal record: three convictions for sale of narcotics, three violations of probation, two convictions for possession of controlled substances, single convictions for assault on a police officer, and carrying a pistol without a permit, as well as three misdemeanor convictions. The report stated that the petitioner "accepts little or no responsibilities for [h]s present] offenses and[, ] in two instances, blames the victims." The probation officer recommended the maximum period of incarceration.
At sentencing on December 5, 2005, Silverstein argued that the petitioner should receive a sentence at the lower end of the possible sentencing range based on the fact that the petitioner was abused as a child, that the evidence of domestic violence in the present cases was disputed, that he had received an offer of approximately six years from Doyle, and that he had entered pleas rather than taking the case to trial. The state pointed out, among other things, that the petitioner was on conditional discharge for the same type of conduct — returning from an alleged narcotics transaction in New York and confronting police officers — for which he presently stood convicted. The court considered the arguments of counsel and stated: "If you look at his prior history . . . [t]here's nothing, there's nothing good to say about this man." It then imposed sentence of six years for violation of the conditional discharge, five years consecutive for attempted assault on a police officer, and an unconditional discharge on the two third degree assault convictions. The petitioner's net effective sentence was eleven years.
The condition of his discharge was that he not violate any criminal laws.
II A
In count one of the petition, the petitioner alleges that Silverstein rendered ineffective assistance both in failing to convey the six-year offer and in failing to advise the petitioner properly about it. Because the court has found that Silverstein conveyed the offer to the petitioner, the court rejects the first component of this claim. The court proceeds to examine the claim that Silverstein's advice was inadequate.
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). "A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating . . . that the advice was not within the range of competence demanded of attorneys in criminal cases." (Internal quotation marks omitted.) Bowden v. Commissioner of Correction, 93 Conn.App. 333, 339, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).
There is no question in this case that, from the petitioner's perspective, there was an unfavorable outcome to the case in that the petitioner had an opportunity to receive a six-year sentence and instead received an eleven-year sentence. Further, this outcome stemmed largely from Silverstein's advice to the petitioner that "[y]ou probably would not do much worse with Judge Damiani," and his omission to recommend to the petitioner that he accept the six-year offer. "Although [the decision whether to plead guilty] 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." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995).
The court recognizes that the petitioner was an experienced participant in the criminal justice system and undoubtedly had some capability of making up his own mind as to what offer to accept. If Silverstein had said nothing, the petitioner could perhaps be fairly charged with the responsibility for making the best decision. In this case, however, Silverstein did not remain silent or even noncommital but affirmatively suggested that the petitioner try an open plea with Judge Damiani. Given Silverstein's experience in the area, this advice would have influenced even a seasoned criminal defendant.
It is true, of course, that "a tactic [devised by defense counsel] that appears ineffective in hindsight may have been sound strategy at the time . . ." (Internal quotation marks omitted.) Bowden v. Commissioner of Correction, supra, 93 Conn.App. 339. Here, Silverstein did have a strategy intended to benefit the petitioner. Silverstein had years of experience practicing before Judge Damiani and honestly felt that the petitioner would do no worse in sentencing before him than receive a six-year sentence. Silverstein intended to rely on the claims that the petitioner had an abusive childhood, that no officer was injured in the assault, that there was only minimal domestic violence, and that the petitioner should not receive a sentence close to the maximum of six years and four months on the violation of conditional discharge because he had resolved the matter by plea rather than by trial.
Although Silverstein thus had a strategy intended to benefit the petitioner and advised the petitioner accordingly, the question remains whether "the advice was not within the range of competence demanded of attorneys in criminal cases." (Internal quotation marks omitted.) Id.
After careful deliberation, the court concludes that it was not. The chief consideration is the petitioner's criminal record. While Silverstein did not have the petitioner's presentence investigation report at the time of the original six-year offer, Silverstein knew or at least should have known about his client's criminal history from the prosecutor, from the petitioner, and from his own past experience with the petitioner. There is no other way to state the matter than to say that the petitioner's criminal record is egregious, revealing the petitioner as a persistent, defiant, and violent offender. Further, the petitioner was on a conditional discharge for an incident very much like the present one, thus giving rise to the argument that the petitioner is incorrigible. Although Silverstein could and did argue that the petitioner had an extremely difficult childhood, this argument would predictably lose force in the case of a person, such as the petitioner, who was thirty-two years old and had numerous opportunities to reform.
Indeed, at sentencing, Doyle quite understandably argued as follows: "At the time that these incidents occurred, he owed six years on a conditional discharge for the same activity that he'd priorly been involved with . . .
"Threatening officers; he's had histories of weapons, history of selling narcotics which . . . individuals like Mr. Ebron are responsible for most of the people sitting here in the arraignment docket this morning."
Silverstein also knew that an open plea would result in ordering the office of adult probation to write a presentence investigation report, whereas accepting the six-year offer would not. A reasonably competent defense attorney in Connecticut would know that a presentence investigation report would itemize a defendant's criminal record in a detailed way that differs from the customary quick summary, if any, that a prosecutor would present to the court if there were an agreed-upon recommended sentence. Given the petitioner's lengthy criminal history, the memorialization of his record in the presentence report is particularly damning. The detailed recitation of the facts of the incidents in question is also highly incriminating. Based on this information, a competent defense attorney could reasonably have anticipated that the probation officer would recommend the maximum period of incarceration.
The presentence report includes the following narrative of the attempted assault on a police office charge: "On April 4, 2005, officers of the New Haven Police Department received information from a known reliable informant [that] an individual, later identified as the defendant, was returning to New Haven with approximately ten ounces of crack cocaine . . .
At approximately 2:20 p.m., officers observed the defendant's vehicle traveling north on Barnett Street. Other units in the area were notified and police followed the defendant's vehicle to the rear parking lot of Sheridan Middle School. Two marked police vehicles as well as four unmarked DEA cars entered the lot, several with flashing emergency lights on. One of the officers pulled in directly next to the defendant and displayed his badge. He was ordered to stop several times. The defendant drove in reverse, ramming his vehicle into one of the agent's vehicles, causing excessive damage. The defendant then drove forward, hitting two more vehicles causing additional damage. He was able to get to the street and police pursued the defendant. On Roger White Drive, the vehicle came to a stop and the defendant and an unknown passenger exited the vehicle and fled on foot. The defendant was apprehended approximately two blocks away on Osborne and Dyer Streets. The defendant refused to stop and was tackled to the ground. Once on the ground, he continued to struggle, kicking and punching the arresting officers. The defendant also refused to take his hand out of his front pants pocket stating "I got a gun." After further struggle, officers were able to handcuff him.
"The defendant was transported to Yale New Haven Hospital for treatment for a cut to the back of his head. While at the hospital, the defendant told an officer that he was robbed by the police the previous evening and had a razor knife with him to prevent that from happening again. The razor knife was seized from his right rear pocket. Additionally, three cell phones and $333.60 were seized from the defendant and placed into evidence."
Finally, Silverstein knew that there were no defenses to the principal charges. Silverstein aptly described the state's case on attempted assault on a police officer as a "slam dunk." See note 4 supra. Given the petitioner's commission of that offense, and that a condition of his discharge was to refrain from violating the criminal law, it necessarily follows that he was in violation of his conditional discharge. While Silverstein had some mitigating arguments on the two third degree assault charges, it was obvious that these misdemeanor charges would not make a significant difference in the net amount of time that the petitioner would have to spend in prison.
Indeed, Judge Damiani imposed an unconditional discharge on both of these counts.
Under these circumstances, Silverstein's performance in not recommending acceptance of the six-year offer was deficient. Silverstein's experience with Judge Damiani counts, but there is no evidence that Silverstein ever had experience with a case similar to this one. It is a truism that each sentencing turns on the unique facts of the case. Thus, ultimately, it is good judgment in assessing the case in question, rather than experience with other cases, that must guide counsel's recommendation. While it may not be necessary for counsel to advise his client whether to accept a plea offer in every case; see CT Page 751 Purdy v. United States, 208 F.3d 41, 48 (2d Cir. 2000); in this case, given the wholly unmitigating circumstances, Silverstein exercised constitutionally deficient judgment in recommending that the petitioner reject the six-year offer. See United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998). As the Sentence Review Division stated in affirming the eleven-year sentence: "Taking into consideration the criminal history of the petitioner and the nature of the present convictions, the sentence imposed is neither inappropriate nor disproportionate."
The court takes judicial notice of the decision of the sentence review division attached to the respondent's brief. In the sentence review proceedings, the petitioner challenged his six-year consecutive sentence for violation of conditional discharge but not his five-year sentence for attempt to commit assault on a police officer.
The prejudice resulting from this ineffective assistance is obvious. The petitioner would have accepted the offer of ten years suspended after six had Silverstein recommended it, and Judge Alexander would have imposed such a sentence. The petitioner thus lost an opportunity to receive a sentence considerably shorter than the one imposed.
B
The next issue is the appropriate remedy. Pursuant to General Statutes § 52-470(a), a court hearing a habeas petition "shall . . . dispose of a case as law and justice require." Thus, the habeas trial court, "much like a court of equity, has considerable discretion to frame a remedy, as long as that remedy is commensurate with the scope of the constitutional violations which have been established." (Internal quotation marks omitted.) Brooks v. Commissioner of Correction, 105 Conn.App. 149, 160 (2008).
The present case is analogous to one arising under Santobello v. New York, 404 U.S. 257 (1971). Santobello held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id., 262. In the case of a Santobello violation, our appellate courts have approved a habeas court's order of specific performance of any promise broken by the state. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 743-44 (2007); Brooks v. Commissioner of Correction, supra, 105 Conn.App. 160-62.
Although in the present case there is no claim or evidence of a broken promise by the state, the petitioner nonetheless did not get the benefit of a plea agreement that he and the court would have accepted were it not for the ineffective assistance of counsel. The petitioner should accordingly have the opportunity to plead guilty to the state's offer of ten years suspended after six to serve. This remedy is the one most "commensurate with the scope of the constitutional violations which have been established." (Internal quotation marks omitted.) Brooks v. Commissioner of Correction, supra, 105 Conn.App. 160. See also United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000) ("a finding of ineffective assistance requires a remedy specifically tailored to the constitutional error . . . [and] one that as much as possible restores the defendant to the circumstances that would have existed had there been no constitutional error"). It is also the remedy requested by the petitioner, which should receive considerable weight. See Brooks v. Commissioner of Correction, supra, 161. Finally, the respondent does not present any equitable considerations that would mitigate against renewal and acceptance of its original offer. Id., 162. Accordingly, the court orders specific performance.
Contrary to the respondent's suggestion, it would not make sense for the court simply to vacate the plea. If that result occurred, the reality, given all the facts of the petitioner's cases, is that the petitioner would most likely be convicted of several charges and receive a sentence of more than six years. This result would unfairly put the petitioner in a worse position than if he had actually received effective assistance of counsel.
This court, however, cannot resentence the petitioner. See Orcutt v. Commissioner of Correction, supra, 284 Conn. 743; Brooks v. Commissioner of Correction, supra, 105 Conn.App. 162-63. That authority belongs to the sentencing court. Further, there are several ways to structure the offer of ten years suspended after six in the case of multiple charges. Finally, the parties and the court need to decide whether the petitioner will receive probation or a conditional discharge, an issue that the court had not decided. Only the sentencing court can decide these issues. Orcutt v. Commissioner of Correction, supra, 743-44. Accordingly, the court will issue a writ of habeas corpus directing the trial court in G.A. 23 to vacate the petitioner's plea, allow the petitioner the opportunity to accept the state's offer of ten years suspended after six years, and then, if the petitioner accepts the offer, to resentence the petitioner in accordance with the plea agreement based on the existing charges and the applicable law.
If the petitioner does not accept the offer, of course, the state may then take any appropriate nonvindictive actions in prosecuting these cases.
III
In count two of the amended petition, the petitioner contends that Silverstein was ineffective for failing to raise the claim that attempted assault on a police officer is not a cognizable offense. After the plea in this case, however, the Appellate Court decided State v. Jones, 96 Conn.App. 634, 902 A.2d 17, cert. denied, 280 Conn. 919, 908 A.2d 544 (2006), which specifically rejected this claim. Id., 638-40. In view of Jones, counsel was not ineffective, and the petitioner suffered no prejudice, from counsel's failure to raise the cognizability claim.
In a related claim, the petitioner contends that counsel was ineffective in failing to investigate and challenge the sufficiency of the evidence to support the charge of attempted assault on a police officer. The premise of this claim is that attempted assault on a police officer requires proof of intent to injure a police officer, rather than just intent to interfere with the officer's duties, and that there is insufficient evidence of the former intent. Jones, however, held as follows: "[t]he intent portion of the [assault on a police officer statute] . . . relates . . . to the intent to impede a police officer and not to the harm that results from such interference. Thus, one may be culpable under the statute if one attempts to impede, regardless of whether one intends the consequence of injury to a police officer.
"In sum, we conclude that when coupled with the attempt statute, the intent required for the crime of attempted assault of a peace officer is the intent to prevent the officer from performing his duties; Under § 53a-167c, one may be held liable for assault of a peace officer whether the injury is intended or not." Id., 639.
In this case, the petitioner does not dispute that, at the time of the plea, there was ample evidence of his intent to impede the officers, and the petitioner produced no evidence in habeas court that would suggest that further investigation might have led to a different conclusion. Because, under Jones, the state does not have to prove the additional element of intent to injure in an attempted assault on a police officer case, there is no merit to the petitioner's ineffective assistance challenge concerning the sufficiency of the evidence.
As the petitioner points out, a later section of the Jones opinion contains the following contradictory language: "To establish the defendant's culpability for the crime of attempted assault of a peace officer, the state needed to prove only that the defendant attempted to injure [officer] DeJesus with the intent to prevent him from performing his duty." Id., 641. In view of the clear and detailed discussion from the earlier section of the Jones opinion quoted above, the language relied upon by the petitioner appears to be a misstatement by the Appellate Court. In any case, any challenge to the sufficiency of evidence of intent to injure would have been unavailing. The general review that intent can be inferred from the circumstances; State v. Copas, 252 Conn. 318, 338, 746 A.2d 761 (2000); and it is certainly reasonable to infer the petitioner's intent to injure police officers by his actions in running his car into at least one cruiser, kicking and punching the arresting officers, and then announcing that he had a gun. The evidence produced in the habeas trial did not cast any doubt on this evidence.
IV
The petitioner's final claim is that his guilty plea to the charge of assault on a police officer was involuntary because the petitioner did not understand the elements, the applicable evidence, and any possible defenses. This claim is essentially a reiteration of the position that the offense of assault on a police officer requires proof of intent to injure the officer and that there was no such evidence.
The petitioner does not claim that the plea was involuntary because of Silverstein's failure to recommend that the petitioner accept the state's original plea agreement offer.
The respondent seeks a finding of procedural default because the petitioner did not challenge his guilty plea in a motion to withdraw or on appeal. In response, the petitioner attempts to excuse his default by asserting that his plea resulted from ineffective assistance of counsel in failing to advise him properly concerning the true elements of the offense. While such ineffective assistance might constitute cause for failing to raise the claim earlier; see Carpenter v. Commissioner of Correction, 274 Conn. 834, 844, 878 A.2d 1088 (2005); a defaulting petitioner must show both cause and prejudice; see Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162 (2007); and there is no valid showing of prejudice. The court canvassed the petitioner's plea fully. To this day, there is no dispute about the sufficiency of the evidence to show that the petitioner intended to interfere with the officer's performance of his duties and there is no argument that the petitioner had any defenses to this charge. The petitioner claims only that his plea was involuntary because there was no evidence of intent to injure the officer. As discussed earlier, however, under Jones the state need not prove this element. Further, there was ample evidence of intent to injure. See note 9 supra. Thus, there is no merit to the petitioner's final claim and he suffered no prejudice from failing to raise it earlier. The court accordingly concludes that the petitioner has procedurally defaulted.
V
The petition for a writ of habeas corpus is granted. The court directs the trial court in G.A. 23 to vacate the petitioner's plea, allow the petitioner the opportunity to accept the state's offer of ten years suspended after six years, and then, if the petitioner accepts the offer, to resentence the petitioner in accordance with the plea agreement based on the existing charges and the applicable law. Judgment shall enter accordingly for the petitioner. Petitioner shall submit a judgment file within thirty days of the date of this decision.
The court thanks both lead counsel for their thorough briefing of the case.