Opinion
No. CV 02 463468
April 12, 2006
MEMORANDUM OF DECISION ON HABEAS PETITION
In this habeas petition the petitioner seeks to have his convictions vacated. On April 23, 1998 he entered guilty pleas to two counts of Burglary 3d in two separate dockets CR97-30862 and CR97-30614. The petitioner was represented by Assistant Public Defender, Alice Osedach Powers.
He was also the defendant in two violations of probation cases, CR97-30614 and CR97-30862. In both these cases the petitioner was charged with a violation of § 53a-32 and on March 7, 2002 he entered guilty pleas in both files. He was represented by Assistant Public Defender, Leslie Cavanaugh in these files. The violations were based on the alleged failure to comply with the conditions of probations imposed on the two earlier mentioned burglary charges. All of these matters were handled in G.A. 22 in Milford.
The court will address only the issues raised in petitioner's post-trial brief.
A. Actual Innocence
The claim of actual innocence is made as to the two burglary charges the petitioner plead to in 1998. As the petitioner notes in his brief the court in Miller v. Commissioner of Correction, 242 Conn. 745, 747 (1997) sets forth the standard for "evaluating a freestanding claim of actual innocence." The test is "twofold. First, the petitioner must establish by clear and convincing evidence that taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of the evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime."
What must be taken into account in this case, however, is the fact that the petitioner entered pleas of guilty to these two burglary charges. A "plea of guilty is a waiver of constitutional rights — a waiver of non-jurisdictional defenses . . ." Consiglio v. Warden, 160 Conn. 151, 166 (1970). And "the general rule is that absent a statutory exception, a plea of guilty or nolo contender constitutes a waiver of all defects in the prosecution except those involving the canvass of the plea and the court's subject matter jurisdiction," State v. Reddeck, 224 Conn. 445, 451 (1993). Certainly a conviction after a fair trial or, it would, seem a validly taken plea, removes the presumption of innocence, cf Summerville v. Warden, 229 Conn. 397, 422-23 (1994).
From the foregoing it would seem that where a plea of guilty or nolo contender has been entered a petitioner cannot rely on a so-called free standing claim of actual innocence. As just noted a valid plea waives a defendant's right to a trial, confrontation, and right to put on a defense. After conviction a petitioner certainly has the right to show his plea was invalid because the canvass was constitutionally or statutorily inadequate. This cancels its validity and thus the waiver of constitutional rights. Actual innocence is irrelevant to the inquiry.
Here the petitioner does note that despite counsel's efforts the transcript of the 1998 burglary pleas could not be obtained. At the hearing she said the court reporter's office could not locate them and she thought they told her "the tapes may have been either deleted or misplaced." But neither in testimony or argument has the petitioner attacked the actual canvass on these pleas or even suggested that the canvass itself was somehow inadequate and did not comply with Practice Book § 39-19 or § 39-20.
It is merely suggested the court can go directly to the issue of actual innocence as a vehicle to overturn the findings of guilty — it is argued that the respondent did not offer any evidence, testimony or exhibits regarding the burglary pleas and that this court does not have the benefit of the canvass nor information as to eyewitness identification etc. Thus the court "must rely on petitioner's testimony at the habeas trial" where he simply denied doing the crime, his lawyer did not talk to him or investigate the case and the testimony of a defense expert who said at the habeas trial that a lawyer would have had a duty to investigate the client's claims of innocence.
This argument does not permit the court to address the actual innocence claim for the reasons previously discussed, where a plea has been entered a claim of actual innocence, standing alone, cannot be made.
It can be interjected into habeas proceedings obliquely, as will be discussed, only through application of a variation of a standard derived from Strickland v. Washington, U.S. 668 (1984).
B Ineffective Assistance
The petitioner also claims that he received ineffective assistance of counsel concerning the representation that was afforded him in the 1998 burglary charges and the 2002 Violation of Probation charges. Such claims must be analyzed under the test set forth in Strickland v. Washington, 466 US 668 (1984). The court will first discuss the interpretation it gives to the Strickland test before it tries to analyze each set of ineffective assistance claims.
A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 (2002) the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), said that:
[T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim — did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect — given ineffective assistance was there prejudice.
(1)
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 Strickland went on to say that: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"
Here, as in Strickland, one of the matters in issue is the duty to investigate and the Strickland court at pages 690-91 made the following observations concerning this obviously necessary component of effective representation.
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.
However, regarding the duty to investigate, it should also be noted that our court in Siemon v. Stoughton, 184 Conn. 547 (1981) said that: "failure to conduct an adequate investigation is not a matter of trial tactics." Id., page 557. The court also cited several cases from other jurisdictions which have held "that inadequate pretrial investigation is sufficient to constitute ineffective assistance of counsel." Id., page 556, cf. Siano v. Warden, 31 Conn.App. 94 (1993) where ineffective assistance found in situations where counsel failed to call doctor who would have supported defendant's position that he could not have physically done the crime. Other failure to investigate cases leading to conclusions of ineffective assistance are Rowley v. Warden, 2001 Ct.Sup. 9540 (judicial district of New Haven). Cases cited by petitioner on this issue are Profitt v. Waldron, 831 F.2d 1245, 1249 (CA. 5, 1987); Deutscher v. Whitley, 884 F.2d 1152, 1159 et. seq. (CA. 9, 1989); Crandell v. Bunnell, 144 F.3d 1213, 1217 (CA. 9, 1998). Also see other failure to investigate and failure to present witness cases. Douglas v. Hendricks, 236 F.Sup.2d 412, 431 (D.N.J., 2002); Murrell v. Frank, 332 F.3d 1102, 1118 (CA. 7, 2003); Anderson v. Johnson, 338 F.3d 382, 390 (CA. 5, 2003); cf Bell v. Cone, 535 U.S. 685, 700 (2002); also see Quilling v. U.S., 243 F.Sup.3d 872, 883 (S.D.Ill., 2002).
In determining whether an attorney's performance fell below an objective standard of reasonableness the Strickland court noted that the "[p]revailing norms of practice as reflected in American Bar Association Standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (`The Defense Function') are guides to determining what is reasonable, but they are only guides." 466 U.S. at page 688. As to the requirement placed upon defense counsel to investigate the ABA Standards for Criminal Justice (3d ed.) state the following:
The court did note that: "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Indeed the court went on to note "detailed guidelines `could distract counsel from the overriding mission of vigorous advocacy.'"
4-1.1 Duty to Investigate (A) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to the facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcements authorities. The Duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.
The relevant portion of the commentary to § 4-1.1 says:
Facts form the basis of effective representation. Effective representation consists of much more than the advocate's courtroom function per se. Indeed, adequate investigation may avert the need for courtroom confrontation. Considerable ingenuity may be required to locate persons who observed the criminal act or have information concerning it. After they are located, their cooperation must be secured. It may be necessary to approach a witness several times to raise new questions stemming from the facts learned from others . . . The effectiveness of advocacy is not to be measured solely by what the lawyer does at trial; without careful preparation, the lawyer cannot fulfill the advocates' role. Failure to make adequate pretrial preparation and investigation may also be grounds for finding ineffective assistance of counsel.
Two final observations, however, should be made. As noted earlier with ineffective assistance claims in general, where such claims are based on inadequate investigation it is also true that: "The issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel." Gentry v. Warden, 167 Conn. 639, 647 (1975); State v. Ralls, 167 Conn. 408, 432 (1974). On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, supra 831 F.2d at page 1248.
(2)
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pp. 694-95. See also Dupery v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
Given the facts of this case, the following observation should be added "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).
(3)
In applying the tests set forth in Strickland — (1) deficient performance, and (2) the deficient performance prejudiced the defendant, the court made the following observation regarding these two inquiries:
[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . The object of an ineffectiveness claim is not to grade counsel's performance. It is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. 466 U.S. at page 697.
In State v. Salazar, 707 p. 2d 944 (Ariz. 1985) the court, following Strickland, said that ". . . we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pp. 945, 946. The court went on to hold, id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal. 4th 349, 367, 956 p. 2d 1169 (1998); 21a Am. JR. 2d, "Criminal Law," § 1225, page 490.
II
Guided by the foregoing observations the court will now try to analyze the various claims of ineffective assistance raised by the petitioner.
The petitioner makes a claim of ineffective assistance first against the assistant public defender who represented him in the 1998 burglary cases in which he eventually entered pleas to Burglary 3d. In his brief, three basic claims are made regarding ineffective assistance:
(1) Failure to discuss with petitioner affirmative defenses of diminished capacity or extreme emotional disturbance. It is also asserted it was ineffective assistance to not even consider raising these defenses knowing that Petitioner had a mental health history and that any one of these defenses could have prevented petitioner from being convicted of the crimes plead to had a trial actually occurred.
(2) the petitioner claims his lawyer never discussed the charges against him nor the evidence the state would present if he decided to go to trial. At the habeas proceeding also the petitioner said he was first presented with the plea offer on the first day of jury selection so that he only had a limited time to think over the offer — in fact he had only second. As a result he claims to have been coerced to enter the plea against his will.
(a)
The petitioner refers to alleged failures of defense counsel with regards to pursuing the defenses of extreme emotional disturbance and diminished capacity. Extreme emotional disturbance appears to be a concept that the statutes make peculiar to murder charges, see § 53a-54(a) and will not be considered by the court. But diminished capacity can be used in many jurisdictions and apparently in ours to rebut intent, see 21 Am Jur 2d 59, "Criminal Law" at § 38, page 151; State v. Gracewski, 61 Conn.App. 726, 736 (2001); State v. Arburn, 29 Conn.App. 174 (1992), and it is true that Burglary in all its degrees requires entry into or remaining unlawfully in a building with intent to commit a crime, see § 53-101 through § 53-103a. The intent requirement would seem to apply to all elements of the crime § 53a-5. The petitioner thus seems really to be arguing that he lacked the capacity to form an intent due to mental disease or defect i.e. diminished capacity.
As noted, the petitioner claims his lawyer never discussed a diminished capacity defense and it is argued she never considered it — that is difficult to determine since the defense lawyer was never called to testify. Besides the only indication that there might have been mental health problems is the fact that a competency exam was ordered but the petitioner at the habeas proceedings testified he passed the exam. As far as a history of mental health problems is concerned the record at the habeas proceeding is deficient. The competency report was not introduced into evidence which might have catalogued the petitioner's mental history particularly as regards to his ability or lack of ability to for the requisite intent to commit burglary. No independent psychiatric or other medical expert was presented to evaluate the petitioner's ability to form the intent necessary to commit a burglary at or around the time of the crimes.
This then is a very different record from that presented to the habeas court in Woods v. Commissioner of Corrections, 85 Conn.App. 544 (2004). There the Appellate Court agreed with the habeas court and held that based on the evidence produced at the habeas proceeding where there had been a conviction for murder "defense counsel should have produced sufficient evidence to support the defense of diminished capacity. In particular, we note, that (defense) counsel testified she believed that the petitioner was slow which she equated with diminished capacity. We further conclude that in light of her stated reasons for failing to seek a continuance to have the petitioner evaluated, that failure constituted ineffective assistance of counsel, id., page 548. The Appellate Court noted that at the habeas proceeding a "well known psychiatrist who has practiced in Connecticut for more than fifty seven years" testified at the time of the crimes the petitioner suffered from diminished capacity so that he lacked the intent to commit murder. This testimony was not rebutted, id., page 553.
Here no testimony or observations were offered at the habeas proceedings suggesting the petitioner might not have been able to form the appropriate intent. Also as noted no expert testimony was presented and the competency exam that the petitioner passed was not even introduced into evidence.
Based on this bare record the court cannot conclude that the deficient performance prong of the Strickland test has been met and perhaps more to the point the court cannot conclude that the second prejudice prong as defined in Strickland has been satisfied especially as regards the variation of the prong where a guilty plea has entered as previously defined. The court cannot possibly conclude that as regards the petitioner's diminished capacity claim "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, supra; Hill v. Lockhart, supra.
The court therefore rejects this claim of ineffective assistance.
(b)
The petitioner testified that he was given only a short time to consider the state's plea offer, the lawyer never discussed the charges or the evidence that would be presented if he opted for trial. Under the circumstances he said he felt forced to enter a guilty plea. He testified at one point that "I felt coerced or my arm was twisted into giving that plea."
The court will first make some general observations when a claim such as this is advanced as to the application of the Strickland test.
In the situation where a petitioner alleges he was coerced into entering a plea, the court concludes that it could be argued that a full Strickland two-prong analysis need not be applied. The same day that case was decided the court issued U.S. v. Cronic, 466 U.S. 648 (1984). The Cronic court said that there are circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id., p. 659. Examples cited were the "complete denial of counsel," denial of "effective cross-examination." If a defendant is actually forced or coerced into entering a plea, it is difficult to see how a lawyer acting in such a way could be said to be effective or how it could be argued there is not sufficient prejudice. This is so because it is basic to our criminal justice system that one accused of crime has a right to plead not guilty and have his or her guilt or innocence decided by a jury. That right is guaranteed by the sixth amendment and is applied to the states by the fourteenth amendment Harris v. U.S., 536 U.S. 545, 549 (2002). By forcing the client to plea, the lawyer in effect deprives the defendant of this right — the prejudice is not being allowed to exercise the fundamental right.
Here as noted the transcript of the plea canvass could not be located so the complications of what would be presented if, despite actual coercion, the defendant told the judge the plea was voluntarily and not the result of force or threat does not arise. Here no claim was made that the plea canvass on the 1998 burglaries was inadequate.
The court has mentioned factors the petitioner testified about which form the basis of his claim of coercion. But the problems with the record presented at the hearing is that at other points his testimony seems to contradict such a claim.
The coercion claim seems to be based on allegations that he was forced to plead guilty because the lawyer never talked to him about the case or gave him sufficient time to consider the state's offer and also that he was actually pressured to take the offer. What does the record show?
He said, as noted, that the lawyer did not explain the charges against him or the evidence. Yet he was aware of the underlying charges and the charges of Burglary 3d to which he plead.
At the habeas proceeding he testified that he knew that he was charged with burglary and said he had wanted to go to trial "to let the victim see me." He knew the ramifications of what charges he was facing versus what he was offered and that he was being permitted to plead for far less time than his maximum exposure. He said he realized then that if he went to trial he faced a possible maximum sentence of thirty to forty years. Interestingly in his petition papers he said his lawyer "withheld" the police reports from him. At the habeas proceeding he did not testify as to this allegation. Perhaps more to the point the petitioner never explained in his testimony or brief how anything in the police reports would have been of assistance to his defense or differed from his understanding of the allegations he was aware of at the time he plead.
As to actual pressure to plead, on cross-examination at the habeas hearing he said he spoke to the public defender investigator and then the following occurred:
Q. And you were given a choice
A. (Petitioner) Yes
Q. And your choice was plead for five after two or go to trial?
A. Yes
Q. And you made a voluntary choice to plead
A. After having that conversation with the (the investigator) I did.
Soon thereafter, the petitioner admitted the judge asked him if he knew what he was dong in entering a plea. He agreed he indicated yes and that he wanted to proceed with the change of plea. He also admitted there was no issue of competency since he had passed the competency exam. The following then occurred:
Q. Okay and you voluntarily made this decision to plead guilty
A. Yes
Q. No one said you have to plead guilty
A. No
He admitted his lawyer told him he was to receive a year each on the burglaries if he accepted the state's offer. He said the lawyer did not tell him about the more serious charges he was facing but speculated the investigator did.
Later in the cross-examination the petitioner said the lawyer in fact told him what he was looking at. He admitted that in the first two or three visits she did talk about the case with him.
The involuntariness claim, as revealed in his lawyer's redirect, comes down to the fact that he plead because he was "scared." Without more the court cannot conclude the plea was involuntary on this basis — it is quite understandable that a defendant's acceptable motive to plead would be for fear of facing more time after trial.
Regarding the plea the following exchange should also be noted.
Q. In other words, the final decision came down to Kevin Fulcher, not the (public defender investigator) and not (the lawyer)
A. No. Yeah, it did, it came down to me
Q. Okay and you decided to go with what you thought was best for you?
A. Yep
Q. After talking to (the lawyer) and (the investigator)?
A. Yes.
Based on this record the court cannot conclude that defense counsel was ineffective in that the client entered a plea without being informed of the charges against him or the evidence he was facing or that he was somehow otherwise coerced into entering a plea. As a result the court cannot find ineffective assistance on this ground.
It should also be noted that at the hearing on this petition there was some testimony elicited that that defense counsel did not fully investigate the case and his claim of innocence. But on cross he conceded that he really had no idea of what investigation the lawyer in fact did. It was never revealed to the court what investigation should have been pursued and how this would have affected the petitioner's decision to plead guilty or whether such a decision had a fair and rational basis based on competent lawyer work on behalf of the client. A petitioner cannot simply ask the court to speculate that proper investigations would have led to information supporting a finding of prejudice under Strickland (even if deficient performance can be established), cf. U.S. v. Ashini, 932 F.2d 643, 650 (CA 7, 1991).
(C)
There is also a claim of ineffective assistance as regards to the entry of plea to the violation of probation filed in March of 2002. The same general claim is made here that was made in the burglary files — the lawyer was ineffective in that she did not discuss or raise the defenses of diminished capacity or extreme emotional disturbance. The only substantive evidence presented apart from the allegation is that a competency exam was ordered which the petitioner concedes he passed. For the same reasons that the court rejected this argument as to the burglary charges the court rejects this claim of ineffective assistance as framed as to the violation of probation charges.
Also in the brief, reference is made to the fact that there was no discussion by the lawyer as to witnesses he could call for the probation violation hearing. But no indication was given as to what these witnesses might have said to rebut any claim that the petitioner violated the conditions of drug treatment previously ordered on probation. It is difficult to see what prejudice resulted then from any ineffective assistance on counsel's part, cf. U.S. v. Ashsini, supra. How could it be said under Copas that some undiscovered evidence, never here defined, would have led to success at a probation hearing even if it is found the petitioner would have insisted on going to trial.
This claim is also denied as to the pleas in the violation of probation cases.
Therefore, the modified Strickland prejudice test as set forth in Copas v. Commissioner, supra where a guilty plea has entered cannot be met even if a failure to investigate were to have been explicitly raised and established.
Improper Canvass
The final claim made by the petitioner is that there was an "improper plea canvass" concerning the charges of violation of probation. Pleas of nolo contendere were entered. When a plea is taken there must be compliance with § 39-19 and § 39-20 of the Practice Book. Introduced into evidence was a transcript of the plea and the judge's canvass.
Section 39-19 reads as follows:
The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands;
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum sentence, if any;
(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
(5) The fact that he or she has the right to plea not guilty or to persist in that plea, if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
Practice Book Section 39-20 says:
The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.
Under § 39-19 the petitioner claims the plea canvass was improper because the court failed to advise him of his right to confront and cross-examine witnesses and of his right not to be compelled to incriminate himself.
(1)
The petitioner says his rights under § 39-20 were violated because the court failed to ensure the plea was knowing, intelligent and voluntary; also it is said the court failed to make inquiry into the petitioner's competency to enter a plea.
The court will first discuss the claim made under § 39-20. The canvass indicates that the prosecutor gave a lengthy recitation of the factual basis for the charge taking two pages to set forth the conditions of probation and how the state claimed the petitioner violated those conditions. The court briefly reviewed the time "hanging over" the petitioner's head and his obligation to comply with the terms of probation. The defendant indicated he realized all this by responding yes.
The court then said by pleading nolo contendere the petitioner was admitting to the charges but not contesting them — the defendant then responded yes again. The defendant said he was satisfied with his lawyer; when asked if he wanted to say anything he said "Nope."
The petitioner was apparently concerned that the violation plea would constitute a felony. The court explained that although the sentence she was about to impose was over a year it was not a "new felony" (that is, additional to the burglary charges which were the basis for the probation.) The defendant in response said "Oh, okay. Thank you."
Prior to the remarks addressed to the petitioner by the Judge his lawyer said she had "had a long time to be able to review the information with my client and after presenting the state's offer to Mr. Fulcher, he indicated to me that he is willing to accept the offer. The defendant made no comment as to this statement.
In State v. Ocasio, 253 Conn. 375, 378-79 (2000) the court summarized the law regarding the evaluation of plea canvasses under § 39-19 and § 39-20. The court will quote its remarks leaving out case citations and parenthesis:
This court has repeatedly held that Practice Book § 39-19 requires only substantial compliance — strict adherence to 39-19 not constitutionally mandated — test is whether in light of all the circumstances, trial court's failure to comply rendered guilty plea unknowing or involuntary — literal compliance with § 39-19 not required — duration from specific requirements of § 39-19 does not require automatic reversal — where there has been substantial compliance, failure to comply with each and every requirement of § 39-19 does not require automatic vacating of defendant's pleas.
We can see no reason to apply a different standard of compliance to § 39-20.
Cases like Ocasio involve situations where the defendant is appealing the court's decision not to allow the plea to be vacated. The court assumes the same tests to evaluate that situation would apply in passing on the validity of a canvass brought up in a habeas petition.
In State v. Edwin, 90 Conn.App. 380, 385 (2005) the court said quoting from Ocasio: "the test for substantial compliance with § 39-20 "is whether in light of all of the circumstances, the trial court's literal compliance with § 39-20 would have made any difference in the trial court's determination that the plea was voluntary." In Ocasio the defendant "explicitly stated his plea was voluntary." The court there did not inquire as § 39-20 requires whether promises or threats had been made to induce the defendant to plead apart from the plea agreement. The Ocasio court said "the record contains nothing to suggest that the defendant would have responded affirmatively if the trial court had asked whether his guilty plea was the result of force or threats or promises apart from the plea agreement. He made no claims of any threats or promises and he has not made such a claim on appeal," 253 Conn. at page 381, see also State v. Nelson, 67 Conn.App. 168, 175 (2001).
The question presented then, is whether under the case law the plea here was made knowingly — a plea cannot be voluntary if it is not knowingly made. Also in this case the court did not make a finding that the plea was voluntary, the defendant was not asked and therefore did not say his plea was voluntary at the time he entered it. Furthermore he was not asked if promises or threats were made to him to induce him to plead apart from the plea agreement, which, however, was set forth in full.
In examining these issues the court should not be confined to the actual plea canvass. At the habeas hearing the petitioner said he knew he had been violated for leaving a drug program, his lawyer explained this to him so that he understood why he was being violated. The lawyer also explained the different standards of proof in a violation of probation hearing. On two occasions at the habeas proceeding the petitioner said his plea was voluntary, he thought the disposition was "fair" and when asked if he was happy with it, he said yes. Also he did not testify that promises or threats were made to him apart from the plea offer to induce him to plead.
Returning to the actual 2002 plea canvass itself there is nothing to indicate that the petitioner was involuntary as to the responses he gave to questions asked of him or information given to him.
This last observation also leads to discussion of another aspect of this canvass which in this case has a bearing on voluntariness and knowing entry of a plea. The petitioner was not asked if he was under the influence of drugs or on medication at the time of his pleas although he was accused of leaving a drug program. But this court was not informed of whether or how long he had been incarcerated prior to the pleas and no information by testimony on other evidence was introduced at the habeas proceeding as to whether he was on drugs or medication at the time of plea. Thus, the court cannot conclude he would have responded affirmatively if asked at the plea hearing whether he was under the influence of any such substances.
A person cannot enter a voluntary and knowing plea, if he is not competent or suffers severe mental problems. But the petitioner, prior to the pleas, had had a competency exam. But he passed it and at the habeas hearing this report was not introduced into evidence so there is nothing to indicate his general mental condition and history.
Finally, as to the explicit requirement of § 39-20 that the judicial authority should inquire as to whether the plea results from discussion between the prosecutor and, here, counsel there was no such inquiry. However, again the plea transcript makes clear this was the case and there has been no claim otherwise made in the habeas proceeding.
(2)
The court will now discuss issues concerning the failure to comply with § 39-19. It has been said that what constitutes "substantial compliance" with § 39-19 is different from that test under § 39-20. If there is no substantial compliance under either section the canvass is improper.
The court has quoted the substantial compliance test for § 39-20 as noted in State v. Edwin, supra. That test is directed to the court, in other words the court, from reviewing the proceedings before it, determines whether the defendant in entering the plea acted voluntarily.
The test of "substantial compliance" under § 39-19 is somewhat different. It is directed at the defendant entering the guilty or nolo contendere plea and his or her mental processes. State v. Domian, 235 Conn. 679 (1996) is cited by State v. Irala, supra and State v. Ocasio, supra as setting forth the § 39-19 test. Domian says at 235 Conn. 688, speaking of a subsection of the predecessor Practice Book § 39-19:
Our inquiry, therefore, must focus upon the effect if any, that the trial court's noncompliance with Practice Book § 711(2) had on the defendant's ability to make a fully informed and voluntary plea decision. Thus, the ultimate issue to be resolved is `whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.'
(Subsection 2 is the mandatory minimum sentence inquiry, analogous to subsection (2) of § 39-19.)
The transcript of the pleas canvass indicates subsection (1) was complied with — the petitioner as defendant was informed of the nature of the charge to which he was pleading. Subsections (2) (mandatory minimum) and (3) (no suspension of sentence under statute to which defendant pleads) are not applicable. As to subsection (4), the maximum exposure the petitioner had was explained. Subsection (5) presents the problem. Reading the transcript it seems clear that the petitioner was informed of his right to plead not guilty. The court asked if the petitioner understood that if he entered a nolo plea he was giving up his right to a trial or hearing which also indicates that he had a right to persist in his plea. He was not asked if he understood that at any hearing he had the right to assistance or counsel but in fact he had a lawyer.
What he was not asked or informed about is that at any trial "the right to confront witnesses against . . . and the right not to be compelled to incriminate himself . . ." Boykin v. Alabama, 395 U.S. 238 (1969) sets down the federal constitutional requirements for a valid plea and § 39-19 enforces, as it must, those requirements. Our court in State v. Badgett, 200 Conn. 412, 418 (1986) said that "Under Boykin, in order for a plea to be knowingly voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights — jury trial, confrontation, and self-incrimination." Id., page 243, also see State v. Suggs, 194 Conn. 223, 227 (1984).
Nothing in this plea transcript allows the court to conclude that by some turn of phase or necessary implication the petitioner was, for all practical purposes, advised of his right against self-incrimination and the right to confront and cross-examine witnesses. As to these core constitutional values, for "substantial compliance" to be found there must be some affirmative showing that the language of the judge, although not literally complying with § 39-19, in fact informed the defendant of these rights. Thus, in State v. Suggs, supra no constitutional violation was found where the judge told the accused that by pleading he was waiving his right "to face your accuser," id. page 227. In State v. Badgett, supra, no constitutional violation was found where during the canvass the trial court asked if the accused realized that he was giving up his "right to silence" the Practice Book language of the right not to be compelled to incriminate oneself was not used by the court.
Our case law suggests then that as to the right against self-incrimination Boykin does not require specific language but that right must otherwise be adequately conveyed by whatever language that is used by a trial court. State v. Holmes, 78 Conn.App. 47, 485, 486 (2003); State v. Nelson, 221 Conn. 635, 640 (1992); State v. Carter, 243 Conn. 392, 398 (1997). No distinction in result can be arrived at as to the right to confrontation and the obligation of the trial judge to inform the defendant of that right when there is a plea. Here the import of those rights was not conveyed to the petitioner by the explicit Practice Book language or by any substitute language.
Unless a defendant is informed of such central rights how can he or she be said to have made a fully informed decision to plead and by what talisman can a habeas court speculate with constitutional certainty that not being told of such rights, it would not have made a difference in the decision to plead guilty? This is not like a § 39-20 inquiry where the trial court or reviewing court can look at a transcript and ascertain if as far as it is concerned a plea seemed voluntary in the sense that it was not coerced.
The court concludes that the pleas to the violation of probation files was not in compliance with § 39-19 and should be vacated or otherwise removed from the petitioner's record. All other claims of the petitioner are denied.