Hill v. Warden

Full title: JEROME HILL v. WARDEN, STATE PRISON

Court: Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Dec 20, 2007

2007 Ct. Sup. 21975 (Conn. Super. Ct. 2007)

Opinion

No. CV 05-4000444

December 20, 2007

Memorandum of Decision

CARL J. SCHUMAN, J.

The petitioner pleaded guilty on April 3, 2002 under the Alford doctrine to three counts of sexual assault in the first degree and one count of attempted sexual assault in the first degree. On June 28, 2002, the court, Rodriguez, J. imposed a net effective sentence of twenty years suspended after fifteen years, and twenty years probation. The petitioner now brings this habeas petition claiming that he was not competent to plead guilty and that his trial counsel, assistant public defender William Schipul, rendered ineffective assistance of counsel in presenting the issue of the petitioner's competence to the court.

I A

Soon after taking on the case, Schipul hired a psychologist, Ralph S. Welsh, who examined the petitioner and wrote two reports. Welsh concluded in his second report that, because of his "mild dementia," the petitioner did not fully understand the charges against him and would have difficulty assisting his attorney in his own defense. On the basis of these reports, Schipul requested a competency hearing. On November 1, 2001, the court held an initial competency hearing and found the petitioner not competent but potentially restorable. The petitioner makes no allegation of ineffective assistance concerning this segment of the case.

The petitioner instead alleges that Schipul was ineffective in relation to a second competency hearing, which took place on December 11, 2001. The petitioner claims that Schipul should have objected to and contested the report of the Whiting forensic division, which found the petitioner restored to competence, should have introduced the Welsh reports, and should have called either Welsh or a psychiatrist to testify.

Negating these claims is the fact that the petitioner's own expert on ineffective assistance, attorney Conrad Siefert, testified that, while it might have been the better practice for Schipul to review the Whiting report with Welsh or to hire a psychiatrist, Schipul's failure to do so was not ineffective assistance. Seifert's testimony accurately reflects the notion that the constitution does not guarantee error-free criminal trial counsel. See Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478, 610 A.2d 631 (1992). Rather, in order to prove ineffective assistance of counsel, 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). In light of this presumption and Seifert's testimony, the petitioner cannot prove ineffective assistance of counsel concerning this stage of the case.

B

The petitioner next focuses on a third competency hearing, which took place on June 11, 2002, prior to sentencing. The petitioner alleges that Schipul was ineffective in failing to seek the additional relief of withdrawal of the guilty plea entered on April 3, in failing to retain another expert for the hearing, and in failing to withdraw from the case or move to recuse Judge Rodriguez.¹

1 The petitioner also alleges that Schipul was ineffective in allowing the petitioner to plead guilty on April 3 in view of his claimed incompetence. But Schipul did not receive any new expert information in this case until after the plea and thus, at the time of the plea, there was no basis to reargue the finding of competency that the court had made five months earlier. The court also credits Schipul's testimony that he had no doubts of his own about the petitioner's competency on April 3. Thus, there was no ineffective assistance in proceeding to the change of plea at that time. Based on the additional reports from Welsh that Schipul received after the plea, Schipul did ask for, and the court did grant, another competency hearing, which is the one that took place on June 11. Whether Schipul should have moved to withdraw the guilty plea at that point is a matter that the court discusses above.

The court finds the following related facts. Schipul was and is an experienced trial attorney who had many interactions with the petitioner and considerable information about him from other sources. Schipul found that the petitioner's ability to discuss the case and understanding of the issues improved significantly after his treatment and restoration of competency at Whiting. Schipul had no doubts about the petitioner's competency to plead guilty on April 3. Schipul sought additional reports from Welsh not to support a rehearing on competency, but rather to explore any mitigating information concerning sentencing. When the June 6 report came back with a conclusion that the petitioner was incompetent, Schipul felt that it was his obligation to raise the issue with the court. Schipul saw no need to hire another expert because Welsh was very qualified in the area.

Based on these facts, the court concludes that Schipul handled the situation competently. Although he personally saw no basis to relitigate the issue of competency, he raised it in the interests of justice and out of an abundance of caution. While he apparently could have styled his moving papers as a motion to withdraw the guilty plea in addition to a request for a competency determination prior to sentencing, the failure to do so does not represent deficient performance, as he legitimately saw no likelihood of success in either request.²

2 Presumably, a defendant who is incompetent at the time of a guilty plea would have a strong basis to move to withdraw the plea under Practice Book § 39-27(2) on the ground that the plea is involuntary. In this case, the petitioner, who bears the burden of proof, never introduced the pleading Schipul filed that led to the June 11 hearing to show exactly how Schipul styled his motion, or clarified that Schipul never filed a written pleading on the matter. In any event, in order to prevail on an ineffective assistance of counsel claim, the petitioner 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). Because Judge Rodriguez denied the motion for a competency exam pursuant to General Statutes § 54-56d(d), there is no reason to believe that he would have granted a motion to withdraw the guilty plea. Therefore, the petitioner cannot prove prejudice.

The court credits Schipul's opinion that there was no basis to retain another expert, as Welsh was well qualified in the area of competence. The petitioner has advanced no authority establishing that the objective standard of reasonableness governing ineffective assistance of counsel claims requires defense counsel to call a second expert witness in a given area.

Finally, there is no merit to the petitioner's claim that Schipul should have moved to recuse Judge Rodriguez or withdraw his own appearance. Presumably, the premise of the recusal is that, because Judge Rodriguez found the petitioner competent in November 2001 and then accepted his guilty plea in April 2002, he should have recused himself from further consideration of the petitioner's competence. The petitioner provides no support for this misguided notion. In the absence of any showing to the contrary, which the petitioner did not attempt to make, a judge is presumed to follow the law that the court has an ongoing obligation to consider the issue of competence. See Drope v. Missouri, 420 U.S. 162, 181 (1975); State v. Gonzalez, 205 Conn. 673, 686-87, 535 A.2d 345 (1987); see also In re Jonathan M., 255 Conn. 208, 223, 764 A.2d 739 (2001) (presumption that judge follows the law). Similarly, although the petitioner does not explain his basis for claiming that Schipul should have moved to withdraw from the case, the court finds that, in fact, Schipul's performance was exemplary in that he renewed the issue of competence in June 2002 in the interests of justice even though he did not see a strong basis to question competency at that point. Accordingly, the petitioner has failed to prove ineffective assistance of counsel.

II

In a separate count, the petitioner alleges that, because of the petitioner's incompetence at the time, it was constitutional error for Judge Rodriguez to accept the petitioner's guilty plea and impose a sentence. Although the petitioner did not challenge Judge Rodriguez's rulings on appeal, the respondent did not allege procedural default in its return. Accordingly, the court proceeds to the merits of this claim.

At the June 11 hearing, Judge Rodriguez made the following findings: "[T]he Court in accepting [the guilty] plea had considered the defendant's responses and the observations that the Court made of the defendant in making those responses to the Court . . .

"The defendant was found to be competent implicitly by the Court's finding that he had knowingly and freely and voluntarily and intelligently entered his pleas.

"The Court today finds that there is no reasonable doubt concerning the defendant's competency raised by Dr. [Welsh] [sic].³ The Court makes that finding based upon the evidence presented today and based upon the prior evaluations which the Court has referred to and having considered again the evaluations made by Dr. [Welsh]."

3 Contrary to the petitioner's suggestion, the court applied an appropriate standard. The statute provides in pertinent part that the court should order an examination "[i]f the court finds that the request for an examination is justified . . ." General Statutes § 54-56d(d). This language leaves the decision as to whether to order a competency exam a matter of sound judicial discretion. See State v. Johnson, 22 Conn.App. 477, 488-89, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). It is appropriate for the trial court to order a competency exam if it has a reasonable doubt concerning the defendant's competency. See State v. George B., 258 Conn. 779, 788, 785 A.2d 573 (2001).

Essentially, the petitioner asks this court to second guess this decision. This court will not do so, because Judge Rodriguez relied largely on his opportunity, which this court did not have, to observe the petitioner at the time and hear the testimony of Dr. Welsh. This opportunity put Judge Rodriguez in an advantageous position. See State v. Johnson, 22 Conn.App. 477, 489, 578 A.2d 1085, cert denied, 216 Conn. 817, 580 A.2d 63 (1990).

Although the petitioner has offered additional medical evidence of incompetence in this proceeding, that evidence was not before Judge Rodriguez in 2004.⁴ In any event, the evidence of mental illness that the petitioner offers does not dictate a conclusion that he was incompetent. See State v. George B., 258 Conn. 779, 787, 785 A.2d 573 (2001). The petitioner is presumed to be competent. General Statutes § 54-56d(b). Ultimately, the question of competence is a legal rather than a medical conclusion. Id., 786. There is no basis to say that Judge Rodriguez reached the wrong conclusion based on the evidence before him.

4 The petitioner offers no reason to consider evidence not presented at the original hearing. The petitioner does not allege, for example, that he is actually innocent based on newly discovered evidence. See Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007).

III

The amended petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision. It is so ordered.