Opinion
CV154006992
06-18-2019
Anthony JOHNSON #334872 v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson
I. Procedural History
The petitioner was the defendant in a matter pending in the New Haven Judicial District under docket NNH-CR08-0084790-T, where he was charged with Felony Murder, in violation of General Statutes § 53a-54(c), Robbery First Degree, in violation of General Statutes § 53a-134a(2), Conspiracy to Commit Robbery First Degree, in violation of General Statutes § § 53a-48 and 53a-134a(2), and Manslaughter Second Degree, in violation of General Statutes § 53a-56. He was represented by Attorney Walter Bansley, III, before the trial court. The allegations were that the petitioner and co-defendants, Akeem Gayle and Rashon Felton, set up a drug deal to purchase marijuana from the victim, but with the intent of robbing the victim of his drugs when he appeared. The victim was shot by Akeem Gayle during the robbery attempt, and later died from his injuries. On January 20, 2010, the petitioner entered pleas to the Conspiracy to Commit Robbery First Degree and Manslaughter Second Degree charges in exchange for a maximum sentence of between 18 and 25 years in prison, with the parties reserving their right to present argument to the Court at sentencing, and also with an agreement that the petitioner would testify if his co-defendant’s case went to trial. On August 20, 2010, the petitioner was sentenced to 20 years, suspended after 18 years, with 5 years of probation on the robbery charge, and 10 years, execution fully suspended, with 5 years of probation on the manslaughter conviction. The convictions were ordered to run consecutive to each other, for a total effective sentence of 30 years, suspended after 18 years, followed by 5 years of probation.
General Statutes § 53a-54c. Felony murder, provides in pertinent part: "A person is guilty of murder when, acting either alone or with one or more persons, such person commits or attempts to commit robbery, home invasion, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, such person, or another participant, if any, causes the death of a person other than one of the participants ..."
General Statutes § 53a-134a Robbery in the first degree: Class B felony, provides, in pertinent part: "(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: ... (2) is armed with a deadly weapon ..."
General Statutes § 53a-56. Manslaughter in the second degree: Class C felony, provides in pertinent part: "(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person ..."
Notwithstanding the intent of the trial court, given the State of the law at the time of the petitioner’s sentencing, instead of receiving a sentence that should have resulted in 12 years exposure remaining on the sentence once the petitioner was released to begin serving his 5-year probationary period, it appears that he will actually have only 2 years exposure remaining. Because the 10-year sentence on the manslaughter charge was fully suspended, the 5-year probation period on that sentence would have commenced immediately upon being imposed, which means it would have expired on August 20, 2015. To explain, at the time of the petitioner’s sentencing, General Statutes § 53a-31 read, in pertinent part "(a) A period of probation or conditional discharge commences on the day it is imposed, except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is released from such imprisonment ..." (Emphasis added.) While sentences may be consolidated or aggregated for purposes of calculating the total time the defendant must serve, the punishment imposed by the Court on each individual charge is a separate "sentence." See, Green v. Warden Corr. Inst., Somers, 178 Conn. 634, 636-38, 425 A.2d 128 (1979) (discussing that the Court’s power to impose punishment is viewed relative to the sentence imposed for each individual conviction); Spates v. Robinson, 179 Conn. 381, 384, 426 A.2d 776 (1979) ("By stating the effective sentence it imposed on all counts, the court at the time of sentencing delineated on the record how it intended the minimum and maximum terms of the sentence on each count to run with respect to each other count ...); State v. Ostolaza, Superior Court, Sentence Review Division, Docket. No. CR6-258721, 1991 WL 244814, at *1 (Oct. 22, 1991) (modifying 7-year sentences imposed on sixteen individual counts ordered to run consecutively to each other into eight 8-year sentences, consecutive to each other, ordered to run concurrently to a second set of eight 8-year consecutive sentences). Therefore, while the probation period on the "split" sentence will not commence until the petitioner is released from incarceration, the probation period on the fully suspended sentence on the manslaughter charge, even though ordered to run consecutively, would have begun to run immediately upon being imposed, because that probation was not preceded by a period of incarceration within that sentence. State v. Moore, 85 Conn.App. 7, 11-12, 855 A.2d 1006, cert. denied, 271 Conn . 937, 861 A.2d 510 (2004) (holding that Court did not have authority to "stay" commencement of probation on fully suspended sentence until defendant was released from incarceration on another prison sentence; probation on the fully suspended term began to run immediately upon being imposed). Finally, once the probation period began to run, only a probation warrant or presentment via notice to appear could have interrupted it. State v. Strickland, 39 Conn.App. 722, 728 (1995), cert. denied, 235 Conn . 941, 669 A.2d 557 (1996). So, it is the Court’s belief that, although the petitioner filed this action before probation on the manslaughter conviction expired, which gives this court jurisdiction to consider his challenge, his only exposure after release from incarceration will be the remainder of the 20 years, suspended after 18 years, with five years probation sentence on the robbery charge.
The petitioner filed the present habeas action on February 2, 2015. The operative Amended Petition makes claims that Attorney Bansley provided ineffective representation, and that his plea was not "knowingly and voluntarily" entered as a result. The respondent filed a Return generally denying the allegations in the petition, and also raising the special defense of procedural default to the petitioner’s claim that his plea was not knowing and voluntary. The matter was tried before the Court on February 21, 2019. Further factual and procedural background will be provided as needed throughout the remainder of this decision.
II. Law and Discussion
The two claims made by the petitioner here are really the same claim, just stated differently. Claim One alleges that Attorney Bansley was ineffective for incorrectly advising the petitioner as to the terms and conditions of the plea agreement, thus rendering his plea defective, because it was not "knowingly and intelligently" entered. Claim Two is a free-standing due process claim, asserting that his pleas were not "knowingly and voluntarily" entered because trial counsel failed to adequately advise him of the specific terms and conditions. The specific allegations underlying both claims are that counsel incorrectly advised the petitioner that he would be pleading to Robbery 2nd Degree, instead of the Robbery 1st Degree, and that counsel also led him to believe that the plea agreement limited him to receiving a "flat" sentence of 18 to 25 years, one without any additional suspended time or probation attached. Despite the different wording and titles, both claims require this Court to make a determination of whether the petitioner’s guilty pleas were "knowingly and intelligently" entered.
Due process requires that every valid guilty plea must be demonstrably voluntary, knowing and intelligent ... [T]he trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. [U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable ... When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers ... These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences ...
We, therefore, require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily ... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence ... The defendant must also be aware of the actual value of any commitments made to him by the court ... because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances ...(Citation omitted; emphasis added.) Caez v. Commissioner of Correction, 107 Conn.App. 617, 619-20, 946 A.2d 279, cert. denied, 289 Conn. 903, 957 A.2d 868 (2008).
[B]ecause a defendant pleading guilty pursuant to a plea agreement waives a number of fundamental constitutional rights ... the circumstances surrounding the plea agreement must comport with due process to ensure [the] defendant’s understanding of its consequences ... The notion of fundamental fairness embodied in due process implies that whatever promises the government makes in the course of a plea agreement to induce a guilty plea must be fulfilled ...
Our Supreme Court has held that a plea agreement is akin to a contract and that the well established principles of contract law can provide guidance in the interpretation of a plea agreement.
[T]he primary goal of contract interpretation is to effectuate the intent of the parties ... Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms ... [T]he government ordinarily has certain awesome advantages in bargaining power ... [Therefore] [b]ecause of ... the substantial constitutional interests implicated by plea agreements, the state must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the defendant.(Alterations in original; citations omitted; internal quotation marks omitted.) Id., 620-21.
Therefore, if the Court finds that the petitioner’s pleas were "knowingly and intelligently" entered, both the due process and the ineffective assistance of counsel claims fail. E.g., Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ("The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’ ").
The petitioner’s first claim is that he was put to plea on Conspiracy to Commit Robbery in the First Degree, but that counsel had advised him that he would be pleading to Conspiracy to Commit Robbery in the Second Degree. The petitioner has failed to support this claim with credible evidence.
General Statutes § 53a-135. Robbery in the second degree: Class C felony. (a) A person is guilty of robbery in the second degree when such person (1) commits robbery, as defined in section 53a-133, and (A) is aided by another person actually present; or (B) in the course of the commission of the crime or of immediate flight therefrom, such person or another participant in the crime displays or threatens the use of what such person represents by such person’s words or conduct to be a deadly weapon or a dangerous instrument; or (2) in the course of committing a larceny while on the premises of a bank, Connecticut credit union or federal credit union, as those terms are defined in section 36a-2, intimidates an employee of the bank, Connecticut credit union or federal credit union by intentionally engaging in conduct that causes another person to reasonably fear for his or her physical safety or the physical safety of another for the purpose of: (A) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking of the property; or (B) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
During the plea canvass, the petitioner fails to make any comment, or to ask any questions, nor is there any indication that there is any stoppage, when he is put to plea on Conspiracy to Commit Robbery in the First Degree by the clerk. Similarly, when the trial Court later mentions Robbery in the First Degree by name and goes over the elements with the petitioner, he, again, asks no questions and seeks no clarification about supposedly being put to plea on a charge different than what he had agreed to. He also responds affirmatively, and without question, when the Court asks if he is familiar with the elements of Robbery in the First Degree and whether he had gone over those elements with his attorney. See, Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989) ("A habeas court, as well as a trial court, may properly rely on ... the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged").
Exhibit 9, Transcript of Plea Canvass, January 20, 2010, lns. 16-26.
Exhibit 9, p. 5, lns. 1-7.
In support of this claim, the petitioner insinuates that he wasn’t fully paying attention at his change of plea hearing, and only listened for the word "robbery," but not the specific degree. Because part of the petitioner’s plea deal contemplated the possibility of testifying against one of his co-defendants, however, he was not sentenced until eight months later. This gave the petitioner plenty of time to realize the alleged error in charges. Despite that significant passage of time, and despite the fact that Robbery in the First Degree is stated several times, he still failed to raise any issue about this supposed error when back before the Court eight months later at his sentencing. Finally, despite the fact that the petitioner claims Attorney Bansley had already misled him about the charges he was pleading to, and about the overall sentence he was to receive, the petitioner then asks the Court to accept, as the reason it took him five years to raise any documented complaint about this issue, that he called Attorney Bansley shortly after sentencing to complain about the error, but accepted Attorney Bansley’s advice that the best course of action was to wait until he was close to 50% of his 18-year prison sentence and apply for a sentence modification. It is enough to say that this Court did not find this testimony, or the excuse, at all credible.
"This is a matter in which pleas were entered on January 20th of 2010 to one count of conspiracy to commit robbery in the first degree, one count of manslaughter in the second degree." (Exhibit 10, Transcript of August 20, 2010, p. 1, Lns. 6-9.)
Adding to the issue of the petitioner’s inaction, is that he claims to have been in possession the entire time of an "Offer Letter" he claims to have received from Attorney Bansley as a way of explaining and inducing him to accept the plea deal. Despite this, the petitioner cannot document a single letter or a single motion, nor did he memorialize that he was supposedly in possession of written proof of an error in his plea deal until the filing of this habeas five years later. The Court also finds it self-serving, and convenient, that the petitioner insists he only communicated to Attorney Bansley about this issue, and only via telephone, despite allegedly being in possession of this written proof, as he claims, that his plea agreement was incorrect.
Exhibit I, "Bansley Law Offices, LLC File Memorandum." The hand-scrawled document the petitioner claims to be an "Offer Letter" is obviously nothing more than a simple file memo. The Court treats it as an "Offer Letter" only for purposes of contrasting the petitioner’s claims with his actions. Additionally, although Attorney Bansley recognized the document, he denied it, or something in that form, would have been delivered to the petitioner as an "Offer Letter." He had no idea how the petitioner came into possession of it.
So, the Court finds that the petitioner has failed to prove that he was misled by counsel as to the terms of the plea agreement, or that he lacked the requisite understanding of the terms of his plea agreement. Most importantly, the Court finds that there is no credible evidence that the petitioner was put to plea on charges different than what he expected. Caez v. Commissioner of Correction, supra, 107 Conn.App. at 619-20.
The petitioner’s second basis for challenging his plea is that he understood, based on discussions with Attorney Bansley, that he was to receive a "flat" sentence, one without any additional suspended time or probation. For the reasons discussed above, that the petitioner failed to raise any issue with anyone about the split sentence and probation for more nearly five years, the Court does not find the claim credible. There is also no substance to the claim that the Court’s statement, "My understanding as to the agreed recommendation is a cap of 25 years as far as the period of incarceration with a floor of 18 years ..." was any indication that the agreement was limited to "flat time." This was simply the Court putting forth the foundation of the agreement- the minimum and maximum period of prison the petitioner was going to face- but not an attempt to lay out the entirety of the plea agreement. Referencing sentencing agreements in this fashion not an uncommon practice in criminal court. Although this Court could not dispute that more specificity would have been helpful to avoid claims like the present, this did not render the agreement ambiguous in any way, nor did it render the plea "involuntary." Caez v. Commissioner of Correction, supra, 107 Conn.App. at 619-20. In fact, counsel testified that understood the meaning of the agreement, that there was no intent on limiting the sentence to only "flat time," and that he conveyed that meaning to the petitioner, which the Court finds credible. Once again, the Court looks to the petitioner’s verbal and written silence for nearly five years after his sentencing as an indication that, although now unhappy with the prospect of probation upon release, he understood the terms of the agreement, and got a sentence within the parameters of what he expected. "The ancient maxim ‘silence gives consent’ permits the inference that a party who is silent intends to consent or assent, when no other explanation is consistent with silence." Hartford Elec. Supply Co. v. Allen-Bradley Co., No. CV 960562061, 2000 WL 1918005, at *5 (Conn.Super.Ct. Dec. 18, 2000) (citing, State v. Martin, 38 Conn.App. 731, 742, 633 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996)); see, also State v. Altajir, 303 Conn. 304, 319, 33 A.3d 193, 203 (2012) (ancient maxim that silence gives consent the inference of assent may be made only when no other explanation is consistent with silence).
Based on the above, the Court finds that the petitioner has failed to prove Claim One, because he has failed to establish that his plea was not "intelligently and knowingly" entered because of the deficient advice of counsel. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ("Where ... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases"). He has also failed to prove Claim Two, because he has failed to prove that his plea was not "intelligently and knowingly" entered. Id.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.
"So, under the circumstances I think the appropriate sentence is as follows: on the charge of robbery in the first degree- conspiracy to commit robbery in the first degree the Court will impose a sentence of 20 years execution suspended after service of 18 years, five years probation ..." (Exhibit 10, p. 12, lns. 5-10).