Opinion
CV144005768S
08-28-2019
Luis LEBRON #185091 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner, Luis Lebron, alleges that trial counsel Thomas Conroy failed to advise him that by pleading guilty he was giving up the right to appeal: 1) the trial court’s granting of his prior counsel Kenneth Simon’s motion to withdraw, and 2) the trial court’s denial of his request to represent himself. If not for this lack of advice, he would not have pled guilty and instead would have proceeded to trial, because he would have had appellate claims that would almost certainly have resulted in a reversal of his convictions, a new trial and a second opportunity to convince the jury that he killed the victim in self-defense. The petition is denied because the court is not persuaded, even assuming Attorney Conroy’s deficient performance, that the petitioner would have rejected the offer and proceeded to trial.
I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The present matter is before the habeas court on remand after our Appellate Court reversed in part the judgment of the prior habeas court. The scope of the remanded proceedings is narrow. There is to be a trial on: "... those portions of count five alleging that the petitioner’s first habeas counsel failed to plead, prove, and argue those claims raised in count four of the amended petition regarding [Attorney] Conroy’s alleged failure to advise the petitioner of the consequences of his guilty plea[; ] ... that portion of count six, which claims that the petitioner’s second habeas counsel failed to adequately plead, prove, and argue the surviving portions of count five." Lebron v. Commissioner of Correction, 178 Conn.App. 299, 175 A.3d 46 (2017) (remanding the matter "for further proceedings on those portions of the petition only"), cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).
The parties appeared before the court on January 16, 2019, for a habeas trial on these remanded claims. The petitioner testified and presented testimony from five additional witnesses: Brandi Yanavich; Bonnie Larosa; Attorney Kenneth Simon; Attorney Thomas Conroy; and Attorney Sebastian DeSantis. The petitioner also submitted various documents into evidence. Both parties submitted post-trial briefs. The relevant procedural history was summarized by our Appellate Court in the decision that resulted in the remand.
The petitioner initially was arrested in May 1997, and charged with one count of murder in violation of General Statutes § 53a-54a(a) and criminal use of a firearm in violation of General Statutes § 53a-216 ... The petitioner was appointed a public defender, Attorney Kenneth Simon. Simon represented the petitioner through the start of jury selection, which began in January 1999. At about that time, Simon filed a motion for permission to withdraw his appearance on the ground that he could be called as a witness at trial for the petitioner). The court granted the motion.
At that time, the court discussed with the petitioner how the matter should proceed in light of defense counsel’s withdrawal on the eve of trial. The petitioner indicated to the court that he had not asked counsel to withdraw and had waived any conflict, and that he wanted to proceed with the trial. He also informed the court that he was prepared to represent himself. The trial court did not agree to allow the petitioner to proceed to trial as a self-represented party at that time. Instead, the court declared a mistrial and continued the matter so that new counsel could be appointed for the petitioner. At that hearing, the prosecutor also indicated to the court that the petitioner would soon be arrested on additional charges.
Shortly thereafter, the petitioner was arrested under a separate docket on charges of two counts of conspiracy to commit murder in violation of General Statutes § § 53a-48 and 53a-54a, and two counts of conspiracy to commit witness tampering in violation of General Statutes § § 53a-48 and 53a-151. The court ordered that the cases be heard together, and the two cases were continued to February 26, 1999.
At the February 26, 1999 hearing, the petitioner was appointed a new criminal defense attorney, Thomas M. Conroy, to handle both of his files. Conroy was granted a further continuance.
In May 1999, the petitioner, pursuant to a plea agreement that resolved all of the 1997 and 1999 charges, pleaded guilty under the Alford doctrine to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55, and one count of conspiracy to tamper with a witness in violation of General Statutes § § 53a-151 and 53a-48. The court canvassed the petitioner and found that there was a factual basis for the plea and that it was knowingly and voluntarily made. The trial court later sentenced the petitioner, consistent with the plea agreement, to a term of thirty years of incarceration on the manslaughter charge and to an unconditional discharge on the conspiracy charge. The state entered a nolle prosequi as to all of the other charges against the petitioner.(Footnotes omitted and renumbered.) Lebron v. Commissioner of Correction, supra, 178 Conn.App. 303-04.
"Simon claimed he likely would be needed as a witness to rebut certain consciousness of guilt evidence that the state intended to present at trial."
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
The petitioner thereafter challenged his convictions in his first habeas corpus petition in which he raised three claims of ineffective assistance by Attorney Simon and Attorney Conroy. Id., 304-05. After the claims in the first habeas were denied after a trial, Attorney Sebastian DeSantis, who represented the petitioner in that matter, failed to timely file a petition for certification to appeal. The petitioner himself filed a petition for certification to appeal, which was denied, and did not file an appeal. Subsequently, after various unsuccessful postjudgment attempts to advance either the first habeas or an appeal therefrom, the petitioner filed a second habeas corpus petition asserting ineffective assistance by Attorney Simon, Attorney Conroy, and Attorney DeSantis. Counsel for the petitioner in his second habeas, Attorney Paul Kraus, was able to resolve the second habeas by way of a stipulated judgment that restored the petitioner’s right to appeal from the first habeas. After a renewed petition for certification to appeal was granted, the petitioner appealed from the judgment of the first habeas court. Instead of challenging the first habeas court’s rulings on the claims raised in the amended petition, the appeal challenged the first habeas court’s actions on the postjudgment motions. The Appellate Court affirmed the judgment of the first habeas court. Lebron v. Commissioner of Correction, 108 Conn.App. 245, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151 (2008).
In the present matter, the claims remanded by our Appellate Court, after it concluded that there was good cause for trial, assert ineffective assistance by Attorney DeSantis and Attorney Kraus centering on a claim that Attorney Conroy rendered ineffective assistance for failing to ensure that the petitioner’s plea was knowing and voluntary. Lebron v. Commissioner of Correction, supra, 178 Conn.App. 323-24. As framed by the evidence presented to this court and briefed by the parties, the petitioner’s claim of deficient performance by Attorney Conroy is that he failed to consult with the petitioner about potential appellate issues when advising him about the plea offer. The petitioner was not advised by Attorney Conroy that his guilty plea would serve as a waiver of the constitutional violations that the petitioner avers occurred when he was deprived of his right to counsel of choice and his right to self-representation at the criminal trial.
II. FINDINGS OF FACT
Attorney Simon represented the petitioner during the criminal proceedings approximately twenty years ago. The petitioner was initially charged only with murder and criminal use of a firearm. Jury selection was underway when it became apparent that the petitioner would be charged with additional offenses, including conspiracy to commit murder and tampering with a witness. According to Attorney Simon’s testimony in the present habeas, a "very difficult piece of evidence popped up in the middle of jury selection" which resulted in him seeking permission to withdraw from representation pursuant to the Rules of Professional Responsibility (Rule 3.7- Lawyer as Witness). Attorney Simon anticipated the state offering this evidence at trial to show the petitioner’s consciousness of guilt.
At the January 27, 1999 hearing regarding the motion to withdraw from representation, Attorney Simon indicated the following to the court:
... [I]t is clear to me from discussion with my client that I would be placed in the position of being ... a witness. I think what we did not know yesterday morning to discuss some of the issues, the charged misconduct here, was that [the] state doesn’t intend to use uncharged misconduct in this criteria. A charge of misconduct if the defendant should be arrested during the pendency of trial allowed me to look at a witness’ statement which supports that uncharged misconduct. It is clear again, as I say, based upon what Mr. Lebron indicates to what his defense would be to those claims, that I would be a necessary witness. Of course that would be my tactical decision and so I ask permission to withdraw. I know that Mr. Lebron has concerns. I don’t think his concerns go to the motion to withdraw but I think his concern is continuance of the case, so to speak.
Petitioner’s Exhibit 3, pp. 2-3.
Attorney Simon apprised the court that the petitioner had, the morning prior to the hearing, "... indicated to [him] he desired to proceed pro se and to represent himself until such time a special [public defender] could be appointed." Id., p. 5. The court then addressed the petitioner about the basis for Attorney Simon requesting permission to withdraw. The petitioner told the court that he did not need Attorney Simon to testify on his behalf and did not think it was necessary. Id., pp. 7-8.
Attorney Simon indicated that the petitioner did not fully understand or comprehend the ethical reason for the withdrawal. Attorney Simon noted the following:
He either doesn’t understand the issues or doesn’t want to, your Honor. What it is I said not at the same time or statement has made to- my statement I have made to Mr. Lebron just so long as he’s breached- so long as he’s breached the attorney-client privilege, to the extent that he has done that, it would be corroboration and I feel it necessary under the rules. Corroboration because Mr. Lebron is going to stand with some credibility problems in front of the jury. He is going to need all of the corroboration he can get and that is where I see myself a witness. Any lawyer worth his soul would call me.Id., p. 8.
The court granted the motion to withdraw and addressed the need to declare a mistrial. The petitioner indicated to the court that he wanted to proceed with a trial and would represent himself until a new attorney appeared to represent him. Id., p. 9. Because the petitioner stated that he wanted to represent himself, albeit only until another attorney appeared on his behalf, the court questioned him to assess his ability to represent himself. In the midst of that questioning, the petitioner inquired if Attorney Simon could stay in the case until successor counsel appeared. Id., p. 10. The court indicated that since it had allowed Attorney Simon to withdraw, it would not be possible for him to continue to stay in until replacement counsel entered an appearance. The court then attempted to engage the petitioner once again to determine his educational background. Id., p. 11. The petitioner indicated that he had completed the tenth grade. The court subsequently determined that the petitioner needed to be represented by counsel and declared a mistrial. Id., p. 12.
On March 12, 1999, Attorney Conroy filed his appearance and appeared with the petitioner at a pretrial. The petitioner had in the interim been arrested on the additional conspiracy to commit murder and conspiracy to tamper with a witness charges, through which the state alleged that the petitioner had attempted to make a witness against him unavailable for his trial on the original murder charge. Thus, at the time of Attorney Conroy’s appearance in the matter, the petitioner was facing six charges: murder, two counts of conspiracy to commit murder, two counts of criminal possession of a pistol and two counts of conspiracy to tamper with a witness. The petitioner’s total exposure at that point was 140 years’ incarceration.
The petitioner acknowledged that it would take Attorney Conroy some time to become familiarized with the case and prepare for trial, ostensibly in July of 1999. Petitioner’s Exhibit 4, p. 2. The petitioner and Attorney Conroy again appeared before the court on May 13, 1999, for a change of plea. Petitioner’s Exhibit 5. The state at that time filed a substitute information charging the petitioner with one count of manslaughter in the first degree with a firearm, and one count of conspiracy to tamper with a witness. The petitioner pleaded guilty under the Alford doctrine to both counts of the substitute information. The state summarized the facts supporting these two charges and guilty pleas. Id., pp. 2-4. The state recommended that the petitioner receive a sentence of thirty years to serve for the manslaughter charge, and five years concurrent for the conspiracy to tamper with a witness charge, with the petitioner having the right to argue for a lesser sentence. Id., p. 4. The state’s recommendation for the five-year sentence for the conspiracy count followed it previously seeking that the petitioner receive a ten-year unconditional discharge for that offense. Id.
The court extensively canvassed the petitioner and counsel about the pleas. Id., pp. 417. The petitioner acknowledged that Attorney Conroy had discussed with him the evidence the state would have to show in support of the charges. Id., p. 6. Additionally, the petitioner answered in the affirmative when asked if he was satisfied with Attorney Conroy’s representation. Id., p. 8. The court asked the petitioner if he felt Attorney Conroy had "done well up to this point to protect [his] legal rights and interests in this case?[,]" to which the petitioner answered "Yes, sir." Id. The court further inquired whether the petitioner understood that "by pleading guilty [he was giving] up certain of those legal rights, including [his] right to a trial by court or jury with the assistance of [his] attorney[,] ... [his] right not to be compelled to incriminate [his] case; [he] could not be made to testify against [himself,] ... [his] right to plead not guilty and require the state to prove [he was] guilty beyond a reasonable doubt[,] [his] right to cross examine those persons, present witnesses on [his] own behalf, and testify ... if that is what [he] wanted to do[,] [a]nd ... [his] right to present any defense because [he was] admitting to these charges?" The petitioner answered "Yes." to all of these inquiries by the court. Id., pp. 8-9.
The court specifically asked the petitioner if he understood that "... a common defense for manslaughter in the first degree, justification, ... that is affirmative, that must be raised at trial by your lawyer[,]" was also a right that the petitioner was giving up by pleading guilty. Id., pp. 9-10. The petitioner also confirmed that he understood he was giving up his right to present a justification defense (i.e., self-defense) at trial. After additional colloquy, the court once more asked the petitioner if he still wished to plead guilty; the petitioner answered "Yes." Id., p. 16. The court asked Attorney Conroy if he was satisfied that the petitioner’s pleas were completely voluntary and understandingly made, as well as if there was any reason for the court to not accept the guilty pleas. Attorney Conroy was satisfied the pleas were completely voluntary and understandingly made, and knew no reason why the court should not accept the petitioner’s guilty pleas. Id., p. 16. The court found the pleas were knowingly and voluntarily made with the assistance of competent counsel. The matter was continued for sentencing and the preparation of a pre-sentence investigation report. Id., p. 17.
At the petitioner’s sentencing proceeding on August 12, 1999, where the petitioner had a right to argue for a lesser sentence, Attorney Conroy informed the court that he thought the guilty plea to manslaughter was appropriate because the circumstances did not support the murder charge. Petitioner’s Exhibit 6, p. 18. Ultimately, the court imposed a total effective sentence of thirty years to serve for the manslaughter charge and an unconditional discharge for the conspiracy to tamper with a witness charge. The state nolled all open counts.
Attorney Simon testified in the present trial that the petitioner wanted to proceed to trial and, therefore, did not want him to withdraw from representation in the middle of jury selection. The petitioner, according to Attorney Simon, was not interested in accepting a plea offer when Attorney Simon represented him. Additionally, the state’s plea offers involved sentences that were high because of the murder charge. Attorney Simon detailed his assessment of the petitioner’s case and likely outcome of a trial in a letter to the petitioner dated November 13, 1997. The letter indicates that the state had offered the petitioner a twenty-five-year sentence in exchange for a plea to the murder charge. Attorney Simon thought the petitioner, after trial on the murder charge, faced a 50% chance of being convicted of murder, a 40% chance of conviction of the lesser included offense of manslaughter, and a 10% chance of acquittal if the jury concluded that the petitioner acted in self-defense. Attorney Simon also noted that the petitioner would need to testify to support his claim of self-defense, which would subject his credibility to attack with a prior conviction.
The November 13, 1997 letter was composed well before the petitioner was charged in 1999 with the additional offenses that had also contributed to Simon’s withdrawal.
Attorney Simon was permitted to withdraw on January 27, 1999. The arrest warrant for the additional charges of conspiracy to commit murder and conspiracy to tamper with a witness was signed on January 29, 1999, and the petitioner was arrested on February 5, 1999. Attorney Conroy was appointed on February 26, 1999, as counsel in both criminal cases. Attorney Conroy received the voluminous discovery materials in late April or early May. In a letter dated May 4, 1999, Attorney Conroy indicated to the petitioner that they would appear in court on May 13, 1999, and that Attorney Conroy would visit the petitioner at Northern Correctional Institution prior to that scheduled hearing. Petitioner’s Exhibit 25. The petitioner pleaded guilty on May 13, 1999.
Attorney Conroy testified that part of negotiating a favorable plea offer encompasses discussions with the prosecutor and identifying possible favorable defenses. Identifying potential weaknesses in the state’s case benefits a defendant in plea negotiations. Attorney Conroy was able to negotiate a plea offer that he urged the petitioner to accept. Attorney Conroy, just like Attorney Simon, viewed the state’s evidence in support of the murder charge as being strong.
Conroy testified in the first habeas trial that one benefit of the petitioner pleading guilty to manslaughter instead of murder is that a conviction for the former offense results in the petitioner being parole eligible. A murder conviction would result in the petitioner being parole ineligible. Petitioner’s Exhibit 7, p. 20.
Once a plea offer is acceptable to a client, counsel’s duty to advise the client about the consequences of a guilty plea includes giving up the right to appeal. Attorney Conroy did not recall advising the petitioner about foregoing his right to appeal issues such as being denied his rights to self-representation and to counsel of his choice. Attorney Conroy also did not recall whether he advised the petitioner that his guilty plea would result in a waiver or loss of his right to appeal any adverse rulings by the court when it decided Attorney Simon’s motion for permission to withdraw. Attorney Conroy apparently did not order a transcript of that hearing, and could not think of a strategic reason to not order the January 27, 1999 transcript. Additionally, Attorney Conroy could not recall if he discussed the reasons for Attorney Simon’s withdrawal with the petitioner and Attorney Simon although he testified at the petitioner’s first habeas corpus trial that he did speak to Attorney Simon about the case after taking over.
The petitioner testified that Attorney Conroy received the discovery in late April 1999. Attorney Conroy advised him to accept the guilty plea. According to the petitioner, Attorney Conroy did not discuss with him any potential appellate issues stemming from the hearing on Attorney Simon’s motion to withdraw. The petitioner wanted his prior habeas attorneys, DeSantis and Kraus, to pursue claims premised on the Attorney Simon’s motion to withdraw and the court’s January 27, 1999 rulings. He further indicated that he wanted to proceed to trial, even if self-represented, and if he lost, then he would be able to appeal therefrom and raise the claims he was precluded from appealing because of his guilty pleas. The petitioner, contrary to both Attorney Simon’s and Attorney Conroy’s assessments, thought he had a strong case to present at the criminal trial.
Attorney DeSantis, as part of his investigation into the petitioner’s claims in his first habeas, ordered the plea and sentencing transcripts, but not the January 27, 1999 transcript. The petitioner’s pro se petition, however, had indicated that there were claims he wanted to raise that pertained to Attorney Simon’s withdrawal. Attorney DeSantis acknowledged that when a defendant pleads guilty, counsel should discuss potential appellate claims. In the present case, however, he did not see viable claims against Attorney Simon because he did not represent the petitioner at the time of the plea.
III. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair"; (internal quotation marks omitted). Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.
Two-Part Test
To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland . Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. In the context of a guilty plea, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversarial process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
I. Deficient Performance
The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
2. Prejudice in the Guilty Plea Context
In order to obtain relief, petitioners must also show that they were prejudiced by counsel’s deficient performance. As noted above, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have proceeded to trial. Hill v. Lockhart, supra, 474 U.S. 52; Washington v. Commissioner of Correction, 287 Conn. 792, 835, 950 A.2d 1220 (2008); Carraway v. Commissioner of Correction, 144 Conn.App. 461, 472, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015).
When deciding whether the petitioner had demonstrated that he would have insisted on a trial and evaluating the credibility of that assertion, it is appropriate for the court to consider whether "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). A petitioner’s assertion that he would have insisted on going to trial "suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 488 U.S. 843, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988). The strength of the state’s case is often "the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial"; Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140, 122 S.Ct. 1092, 151 L.Ed.2d 990 (2002); in the face of an allegation of a legal claim or defense strategy not pursued. Carraway v. Commissioner of Correction, supra, 144 Conn.App. 475.
"The prospect of an acquittal, or a more favorable sentence after a trial, is clearly relevant in considering whether counsel’s advice with respect to a plea offer would have changed had he not performed deficiently; indeed, it may be the single most important consideration." Carraway v. Commissioner of Correction, supra, 144 Conn.App. 474; see Hill v. Lockhart, supra, 474 U.S. 60 (evaluation of whether counsel would have changed plea advice depends in large part on a prediction whether the evidence likely would have changed the outcome of a trial).
The petitioner’s credibility is to be "assessed in light of the likely risks that pursuing that course would have entailed." Carraway v. Commissioner of Correction, supra, 144 Conn.App. 476; see Miller v. Champion, supra, 262 F.3d 1074 ("strength of the case that could have been mounted against one pleading guilty to a crime is relevant only because it offers circumstantial evidence of what the petitioner would have done had his counsel not proved to be ineffective"). Nevertheless, the court must determine whether the petitioner, if not for any alleged deficient performance, would have insisted on a trial. An analysis of the strength of the state’s case and the viability of unpursued legal claims are factors to be considered, but they are not by themselves determinative. Cf. Ramos v. Commissioner of Correction, 172 Conn.App. 282, 307, 159 A.3d 1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017) (rejecting petitioner’s claim of prejudice for failing to properly investigate affirmative defense of mental disease or defect where there was a "low probability" of success at trial). While not dispositive, the strength of the state’s case against the petitioner and the maximum sentencing exposure are factors in determining whether he would have, in fact, rejected the offer and insisted on a trial. See Yerinides v. Commissioner of Correction, 156 Conn.App. 71, 111 A.3d 961 (2015) (plea bargained sentence well below maximum exposure undermines finding of prejudice).
3. Counsel’s Duty to Advise Re: Appellate Issues
The court first notes its agreement that reasonably competent defense counsel have an obligation to advise clients about any non-frivolous appellate issues that may be waived as a result of a guilty plea. For instance, it would certainly be deficient performance for trial counsel to fail to inform a defendant that a plea of guilty would result in the defendant being unable to appeal a trial court’s adverse ruling on a motion to suppress evidence. Put differently, reasonably competent defense attorneys must advise clients that, in the vast majority of cases, the only way to challenge adverse trial court rulings, made during the pretrial stage or during trial, is by way of appeal either after a conditional plea of nolo contendere or conviction after trial. This is because it is well established that "an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings ... In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction." (Citation omitted.) State v. Johnson, 253 Conn. 1, 80, 751 A.2d 298 (2000); Henderson v. Commissioner of Correction, 181 Conn.App. 778, 796-97, 189 A.3d 135 (2018); see Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Thus, "only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere ." (Footnote omitted.) State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985). "A plea, whether conditional or unconditional, does not preclude review of ‘jurisdictional defects.’ Those defects have been characterized as those which would prevent a trial from occurring in the first place ... Thus, after an unqualified plea of guilty or nolo contendere, a defendant may challenge his conviction if the conviction is in violation of the double jeopardy clause ... if the court lacks subject matter jurisdiction over the case ... or if the statute under which the defendant is charged is unconstitutional." (Citations omitted.) Id., 98 n.6. Given the severe limitation on issues a defendant may appeal after a valid plea of guilty or nolo contendere, conditional or otherwise, defense counsel have a duty to inform their clients of the same, where the circumstances require it.
General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere, conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure, or from the denial of a motion to dismiss.
This is, of course, separate and apart from counsel’s obligation to advise clients of their right to appeal and to file such an appeal on their clients’ behalf after a conviction. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Ghant v. Commissioner of Correction, 255 Conn. 1, 761 A.2d 740 (2000). In Roe v. Flores-Ortega, the United States Supreme Court held that there is a constitutional duty to consult with a defendant about an appeal "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega, supra, 528 U.S. 480. "In making this determination, courts must take into account all the information counsel knew or should have known ... Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal." (Citation omitted.) Id.
In order to show prejudice, the petitioner must prove that, but for the deficient performance, he would have timely appealed. This is a fact dependent inquiry and "evidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." Id., 485.
In sum, the former- and present- situation involves a defendant’s decision to plead guilty and whether that is made knowingly and voluntarily with full knowledge of the legal consequences of that decision, which, in cases such as these, involve the forfeiture of the right to appeal certain decisions. The latter, covered by Roe v. Flores-Ortega and Ghant v. Commissioner of Correction, involves situations where the challenge is not to the decision to plead guilty, but rather to counsel’s failure to inform the defendant of any right to appeal that exists as a result of the conviction.
4. Ineffective Assistance of Prior Habeas Counsel
It is now also undisputed that a petitioner may challenge first habeas counsel’s performance via a second petition for writ of habeas corpus. Our Supreme Court has determined that "a second habeas petition is an available remedy to vindicate a claim of ineffective assistance of counsel in prosecuting a first habeas petition claiming ineffective assistance at trial or on direct appeal." (Internal citations omitted.) Kaddah v. Commissioner of Correction, 324 Conn. 548, 560, 153 A.3d 1233 (2017).
The application of Strickland to a claim of ineffective assistance of prior habeas counsel requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. A petitioner further has to prove that effective representation by prior habeas counsel would have created a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial. Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992); Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
The petitioner’s claims in the present case boil down to the deficient performance of Attorney Conroy and the failure of habeas counsel to raise a claim regarding that deficiency. The petitioner claims that had Attorney Conroy advised him that by pleading guilty he was giving up the right to appeal 1) the trial court’s granting of Attorney Simon’s motion to withdraw, and 2) the trial court’s denial of his request to represent himself, he would have rejected the offer and instead proceeded to trial. According to the petitioner, it is "indisputable" that his right to self-representation was violated and this issue "would have been overwhelmingly likely to succeed on appeal." Petitioner’s Post-Trial Brief p. 10. Thus, because of these appellate issues, any conviction after trial "would almost certainly be overturned on appeal." Id., 11. Therefore, before the court determines whether Attorney Conroy’s performance was deficient, it is appropriate to discuss the prevailing law on a defendant’s right to counsel of choice and right to self-representation.
B. RIGHT TO COUNSEL OF CHOICE
"It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A defendant has the right to counsel of his own choice because "a primary purpose of the sixth amendment is to grant a criminal defendant effective control over the conduct of his defense." State v. Peeler, 265 Conn. 460, 470-71, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004) (Peeler I ); see United States v. Nichols, 841 F.2d 1485, 1502 (10th Cir. 1988); Wilson v. Mintzes, 761 F.2d 275, 279 n.5 (6th Cir. 1985). The right to counsel of choice, however, is not absolute. State v. Peeler, supra, 265 Conn. 473.
"The [s]ixth [a]mendment right to choose one’s own counsel is circumscribed in several important respects ... a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). There is no "inexorable right to representation by a criminal defendant’s preferred lawyer ... and there is no constitutional right to representation by a particular attorney." (Citations omitted; internal quotation marks omitted.) State v. Dijmarescu, 182 Conn.App. 135, 143, 189 A.3d 111, cert. denied, 329 Conn. 912, 186 A.3d 707 (2018); see State v. Fernandez, 254 Conn. 637, 651, 758 A.2d 842 (2000) ("[T]he right to counsel of one’s choice is not without limitation ... We never have held that the right to counsel necessarily encompasses the right to a specific attorney" [citation omitted] ), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001). Further, our law is clear that "a criminal defendant does not have the right to have the public defender of his choice." State v. Oliphant, 47 Conn.App. 271, 278, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).
The United States Supreme Court has held that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them ... [n]or may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation." (Citation omitted; internal quotation marks omitted.) United States v. Gonzalez-Lopez, 548 U.S. 140, 151-52, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Trial courts have "wide latitude in balancing the right to counsel of choice against the needs of fairness"; Wheat v. United States, supra, 486 U.S. 163-64; "and against the demands of its calendar." Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). They also have an "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, supra, 160. "The right to counsel of choice is also limited by conflict-of-interest rules. Even if a defendant is aware that his or her attorney of choice has a conflict, and even if the defendant is eager to waive any objection, the defendant has no constitutional right to be represented by that attorney." United States v. Gonzalez-Lopez, supra, 548 U.S. 155 (Alito, J., dissenting). "When a defendant’s selection of counsel seriously endangers the prospect of a fair trial, a trial court justifiably may refuse to agree to the choice." State v. Peeler, supra, 265 Conn. 473. Thus, a trial court may reject a defendant’s counsel of choice "on the ground of a potential conflict of interest, because a serious conflict may indeed destroy the integrity of the trial process." Id. ; United States v. Nichols, supra, 841 F.2d 1503.
"Rule 3.7 of the Rules of Professional Conduct requires an attorney to withdraw if he or she reasonably foresees that he or she will be called as a witness to testify on a material matter." (Footnote added.) State v. Crespo, supra, 246 Conn. 695. "Our rule is founded upon our belief that it is unfair to the client that his case should be presented through witnesses whom the trier will necessarily treat as interested, not only through the zeal of advocacy, but also through interest in the result of the trial, instead of as witnesses without self-interest or other zeal than that of the ordinary witness. It is also and primarily founded upon the obvious dictate of public policy, which requires that the profession of the law shall be practiced so as to avoid the bringing of distrust and suspicion upon its members who serve as witnesses in establishing the facts of a complaint or defense, and then as advocates in pressing home to the trier the truth of their statements as witnesses ..." (Citations omitted.) Jennings Co., Inc. v. Digenova, 107 Conn. 491, 496-98, 141 A. 866 (1928).
Rules of Professional Conduct, Rule 3.7 (Lawyer as Witness), provides as follows: "(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."
Since there is a presumption in favor of accepting a defendant’s counsel of choice; Wheat v. United States, supra, 486 U.S. 164; "a trial court may not reject a defendant’s chosen counsel on the ground of a potential conflict of interest without a showing that both the likelihood and the dimensions of the feared conflict are substantial." State v. Peeler, supra, 265 Conn. 473; State v. Crespo, 246 Conn. 665, 696-97, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999). Mere speculation as to a conflict is not enough. "The trial court must examine whether the concern is substantiated and whether that concern outweighs the defendant’s right to counsel of his choosing." State v. Peeler, supra, 473; Wheat v. United States, supra, 164 (actual conflict or showing of serious potential for conflict required). Thus, when faced with the question of dismissal of counsel on the grounds that counsel would be called as a witness, "prior to ordering disqualification of counsel, the court should determine whether counsel’s testimony is, in fact, genuinely needed." State v. Peeler, supra, 474. In order to call opposing counsel as a witness, the moving party must demonstrate that counsel’s testimony is "necessary and not merely relevant, and that all other available sources of comparably probative evidence have been exhausted." Ullmann v. State, 230 Conn. 698, 717, 647 A.2d 324 (1994).
In determining whether there is a conflict, "the trial court must be able, and be freely permitted, to rely upon [defense] counsel’s representation that the possibility of such a conflict does or does not exist ... The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court." (Citations omitted; internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 427, 802 A.2d 844 (2002); State v. Hall, 303 Conn. 527, 536, 35 A.3d 237 (2012); State v. Chambers, 296 Conn. 397, 419, 994 A.2d 1248 (2010); State v. Gamer, 152 Conn.App. 1, 35, 95 A.3d 1223 (2014) "The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case." (Citation omitted.) State v. Drakeford, supra, 261 Conn. 427.
In circumstances in which a defendant’s private attorney seeks to withdraw from representing the defendant, all the sixth amendment demands is "a reasonable opportunity to retain new counsel ..." State v. Fernandez, supra, 254 Conn. 650. Finally, it is well settled that the erroneous deprivation of the right to counsel of choice is structural error mandating a new trial without a showing of prejudice. United States v. Gonzalez-Lopez, supra, 548 U.S. 150; State v. Peeler, 320 Conn. 567, 580, 133 A.3d 864, cert. denied, 137 S.Ct. 110, 196 L.Ed.2d 89 (2016) (Peeler II ).
C. RIGHT TO SELF-REPRESENTATION
The sixth amendment embodies a right to self-representation and "a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." (Emphasis in original.) Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009). Our Supreme Court "consistently has recognized the inviolability of the right of self-representation and that the right is also consistent with the ideal of due process as an expression of fundamental fairness." (Citations omitted; internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. 418. Thus, a criminal defendant may waive his right to counsel and elect to thereafter represent himself. In order to represent himself, a defendant must invoke the right to self-representation in a "clear and unequivocal manner." In order to invoke this right, "a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request." (Citation omitted.) Id., 423-24. All that is required is that a defendant "state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made." (Citation omitted.) Id., 424. Once this clear and unambiguous request has been made, a "trial court must canvass the defendant to determine if the defendant’s invocation of the right, and simultaneous waiver of his right to the assistance of counsel, is voluntary and intelligent." (Emphasis in original.) State v. Braswell, 318 Conn. 815, 828, 123 A.3d 835 (2015); see also State v. Pires, 310 Conn. 222, 231, 77 A.3d 87 (2013). "[A] record that affirmatively shows that the defendant is ‘literate, competent, and understanding, and that he [is] voluntarily exercising his informed free will’ is sufficient to support a finding that the defendant voluntarily and intelligently invoked his right." State v. Braswell, supra, 318 Conn. 828, quoting Faretta v. California, supra, 422 U.S. 835. Practice Book § 44-3 guides the inquiry to be made by the trial court. A defendant, however, "does not possess a constitutional right to a specifically formulated canvass [with respect to this inquiry]. His constitutional right is not violated as long as the court’s canvass, whatever its form, is sufficient to establish that the defendant’s waiver was voluntary and knowing ... In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing." (Citation omitted.) State v. Webb, 238 Conn. 389, 429, 680 A.2d 147 (1996). Practice Book § 44-3 provides, in relevant part:
A waiver [of the right to counsel] will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation.
The analysis pursuant to Practice Book § 44-3 is "designed to help the trial court answer two questions: [W]hether a criminal defendant is minimally competent to make the decision to waive counsel, and ... whether the defendant actually made that decision in a knowing, voluntary and intelligent fashion." (Citation omitted; internal quotation marks omitted.) State v. Braswell, supra, 829.
A defendant must also make a timely request to represent himself. It is well established that the "right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial." (Citation omitted.) Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994); State v. Flanagan, supra, 293 Conn. 431. If the request is untimely, however, the trial court may deny a defendant his right to self-representation. The United States Supreme Court recognized three grounds for a denial in Faretta v. California, the first of which is that the request is made in an untimely fashion such that granting it would disrupt the proceedings. State v. Flanagan, supra, 293 Conn. 431. Thus, this right of self-representation is not unfettered. State v. Bush, supra, 325 Conn. 319. "After the commencement of a trial, the right of self-representation is sharply curtailed and a trial court faced with such an application must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress." (Citations omitted; internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. 431. "Trial commences, for this purpose, at voir dire." (Citation omitted.) State v. Bush, supra, 320.
Our Supreme Court has laid out the procedure for trial courts considering requests for self-representation once the trial has commenced. According to the court, "when a defendant clearly and unequivocally has invoked his right to self-representation after the trial has begun, the trial court must consider: (1) the defendant’s reasons for the self-representation request; (2) the quality of the defendant’s counsel; and (3) the defendant’s prior proclivity to substitute counsel. If, after a thorough consideration of these factors, the trial court determines, in its discretion, that the balance weighs in favor of the defendant’s interest in self-representation, the court must then proceed to canvass the defendant in accordance with Practice Book § 44-3 to ensure that the defendant’s choice to proceed pro se has been made in a knowing and intelligent fashion. If, on the other hand, the court determines, on the basis of those criteria, that the potential disruption of the proceedings already in progress outweighs the defendant’s interest in self-representation, then the court should deny the defendant’s request and need not engage in a § 44-3 canvass." Id., 433; see State v. Pires, supra, 310 Conn. 252-53.
The threshold consideration is whether the request is "clear and unequivocal." To be considered so, the record must show a "purposeful choice reflecting an unequivocal intent to forego the assistance of counsel." (Citation omitted.) Williams v. Bartlett, supra, 44 F.3d 100. Further, although "a defendant may condition an invocation of the right to self-representation on the court’s denial of his request for a new attorney, that alternatively phrased request still must be clear and unequivocal." State v. Pires, supra, 310 Conn. 239.
There are two reasons why courts require defendants to make unequivocal requests for self-representation: "[f]irst, unless the request is unambiguous and unequivocal, a convicted defendant could have a colorable Sixth Amendment appeal regardless of how the trial judge rules: if his request is denied, he will assert the denial of his right to self-representation; if it is granted, he will assert the denial of his right to counsel." Williams v. Bartlett, supra, 44 F.3d 100-01. Second, such a requirement "inhibits any deliberate plot to manipulate the court by alternatively requesting, then waiving counsel." (Citation omitted; internal quotation marks omitted.) Id. In deciding whether a request was unequivocal, a court is not limited to considering the exact words spoken by the defendant. "Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent." Id. Our Supreme Court has held that the inquiry into whether the right was clearly and unequivocally invoked depends on the context of the request and is "fact intensive and should be based on the totality of the circumstances surrounding the request." (Citation omitted.) State v. Jordan, 305 Conn. 1, 15, 44 A.3d 794 (2012). Factors to be considered include "whether the request was for hybrid representation ... or merely for the appointment of standby or advisory counsel ... the trial court’s response to a request ... whether a defendant has consistently vacillated in his request ... and whether a request is the result of an emotional outburst ..." (Citation omitted.) Id. ; State v. Pires, supra, 310 Conn. 243 n.18 (trial court’s response is one factor to be considered); State v. Flanagan, supra, 293 Conn. 425-36 (same).
Where there is no clear and unequivocal assertion of the right, "a trial court has no independent obligation to inquire into the defendant’s interest in representing himself ... [Instead] recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court." (Citation omitted.) State v. Flanagan, supra, 293 Conn. 423.
Of course, once asserted, the right to self-representation may also be subsequently waived "through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether." Williams v. Bartlett, supra, 44 F.3d 100. A defendant may further waive that right "by acquiescing, either overtly or by a failure to object, to a subsequent reappointment of counsel." Quint v. Commissioner of Correction, 99 Conn.App. 395, 405, 913 A.2d 1120 (2007). This waiver rule applies when a trial court has not clearly and conclusively denied a defendant’s request to represent himself, but "when a court has clearly and conclusively denied the request, the defendant does not waive his right to self-representation by subsequently acquiescing in being represented by counsel or by failing to reassert that right." State v. Braswell, supra, 318 Conn. 843-44.
Denial of the defendant’s right to self-representation is structural error not subject to harmless error analysis and requires reversal of the conviction and a new trial. State v. Braswell, supra, 843; Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.), cert. denied, 531 U.S. 892, 121 S.Ct. 218, 148 L.Ed.2d 155 (2000).
IV. DISCUSSION
The petitioner claims as follows: he always maintained a desire to take the case to trial, believing he had a viable self-defense claim. He did not want Attorney Simon to withdraw from representing him and wanted to proceed with the trial instead of continuing it. He would have represented himself at trial, thus avoiding the need to continue the matter, until another attorney was appointed and brought up to speed. He did not want to plead guilty, but Attorney Conroy convinced him to do so. Attorney Conroy should have told him that the trial court erred in letting Attorney Simon withdraw and in denying his request for self-representation. Attorney Conroy should have advised him that these were appellate issues that had an overwhelming likelihood of success and would almost certainly result in a reversal of his convictions, if any, after trial. Thus, he would have had nothing to lose, so to speak, by going to trial, because he would almost certainly have gotten a second chance at convincing a jury to acquit him or convict him of a lesser charge. Had he been so advised he would have rejected the offer and proceeded to trial.
Assuming that Attorney Conroy failed to advise the petitioner that he would be relinquishing his right to appeal the trial court’s rulings on the matter of his representation, the petitioner still cannot prevail here because he has not proven prejudice. First, the court does not agree that reversal of any conviction as a result of the alleged trial court errors was certain, or even likely. As to the issue of the petitioner’s counsel of choice, it is clear that he has no right to a specific attorney. Further, Attorney Simon, as an officer of the court, represented there was a high likelihood of him being a necessary witness to rebut, at trial, evidence the state was going to present to show the petitioner’s consciousness of guilt. Attorney Simon sought, and was granted permission, to withdraw from representation because of the potential dual role of trial advocate and witness. The trial court was entitled to rely on that representation and Attorney Simon had a professional obligation to make that request in good faith. The court also notes that the petitioner, at the habeas trial, has not presented any evidence to dispute Attorney Simon’s representation that he would be a necessary witness and was required to withdraw from representing the petitioner. This court is not convinced that a reviewing court would likely have found that the trial court abused its discretion in permitting Attorney Simon to withdraw.
Since the petitioner’s claims against habeas counsel are dependent on the merits of the allegation of Attorney Conroy’s ineffectiveness, the court focuses only on the advice given by Attorney Conroy.
As to the petitioner’s appellate claim that he was entitled to represent himself, the court again is not persuaded of its likelihood of success on appeal. As a threshold matter, the request was made after the commencement of trial and thus, his right to self-representation was "sharply curtailed." The comments of Attorney Simon and the petitioner make clear that he was more concerned with avoiding a delay in the matter, rather than making a "purposeful choice reflecting an unequivocal intent to forego the assistance of counsel." (Citation omitted.) Williams v. Bartlett, supra, 44 F.3d 100. He asked for the matter to proceed to trial and asked to be allowed to represent himself only until replacement counsel was appointed. He then asked if Attorney Simon could continue to represent himself until replacement counsel was available. The court then engaged in a colloquy with the petitioner that, although not extensive and exacting, did inquire into the petitioner’s ability to represent himself by asking him about his legal training and educational background and, more importantly, about his understanding of the charges against him and the maximum exposure he faced if he were convicted. It is also of note that the petitioner thereafter did not renew his request to represent himself and that the trial did not continue, but instead a mistrial was declared and the matter was continued for the appointment of counsel.
Thus, it is not apparent that a reviewing court would, in all likelihood, find that the petitioner clearly and unequivocally invoked his right to self-representation, or that the trial court’s canvass was inadequate. Of course, the likelihood of success on appeal is not what the petitioner has to prove; rather, it is simply a factor to consider in determining the reasonableness of his testimony that he would have rejected the offer and proceeded to trial.
So, to the court’s second reason for finding that the petitioner has not proven prejudice: even assuming that the petitioner is correct that his appellate issues created a near guarantee of success on appeal, the court is not convinced that he would have rejected the offer and proceeded to trial for that reason . The court reaches this conclusion for several reasons: first, the petitioner faced significant charges and, on the charges on which Attorney Simon represented him, faced a maximum exposure of eighty years’ incarceration. Although the petitioner believes that he had a significant chance at convincing a jury that he acted in self-defense, both Attorney Simon and Attorney Conroy believed that the likelihood of success of that defense was questionable. Both attorneys believed that there was a strong likelihood that the petitioner would be convicted of murder or, at best, manslaughter in the first degree with a firearm that exposed the petitioner to a sentence of forty years’ incarceration. Based on a review of the exhibits submitted by the petitioner, which include relevant witness statements, and when viewed in conjunction with counsels’ assessments of the petitioner’s criminal cases, the court credits their assessments of his self-defense theory. For instance, the petitioner’s own statement indicates that it was the petitioner who first drew a gun and pointed it at the victim, before he had to shoot the victim in self-defense. Another witness, Jacqueline Garcia, was an eyewitness to the shooting and identified the petitioner as the shooter. The petitioner’s subsequent conspiracy to commit murder charges stemmed from an attempt to prevent Garcia and one Justin Santiago from testifying at his trial. The petitioner has not presented evidence from which this court can conclude that both Attorney Simon and Attorney Conroy’s analysis of the strength of the state’s case was incorrect.
Second, between the withdrawal of Attorney Simon and the appearance of Attorney Conroy, the petitioner was charged with additional charges that exposed him to an additional sixty years’ incarceration and potentially strengthened the state’s evidence at the murder trial by way of consciousness of guilt evidence. Thus, at the time of the plea, the petitioner was exposed to 140 years’ incarceration. Here, the petitioner was sentenced to thirty years’ incarceration for a parole eligible offense, which is slightly higher than the mandatory minimum for the charge of murder that is parole ineligible, but is substantially lower than the maximum 140 years’ incarceration he faced. Thus, the petitioner’s decision to accept a plea of thirty year’s incarceration to a parole eligible offense with a right to argue for less was eminently reasonable.
Finally, there is a critical distinction between the majority of cases in which courts determine whether proper advice by trial counsel would have resulted a petitioner rejecting an offer and proceeding to trial and the instant case. In the vast majority of cases, courts consider the importance or impact of the gap in counsel’s advice on the petitioner’s decision in light of the impact that would have made on any subsequent trial. See Hill v. Lockhart, supra, 474 U.S. 59 (when, in connection with a guilty plea, counsel gives deficient advice regarding a potentially valid affirmative defense, the prejudice inquiry depends largely on whether that affirmative defense might have succeeded, leading a rational defendant to insist on going to trial); Ramos v. Commissioner of Correction, supra, 172 Conn.App. 282 (rejecting petitioner’s claim of prejudice for failing to properly investigate affirmative defense of mental disease or defect where there was a "low probability" of success at trial).
Here, of course, the topic of the faulty advice does not relate to a legal claim to be raised at trial or a defense to be pursued at trial, or a motion that affects the admissibility of evidence in a way that would weaken or undermine the state’s ability to prove its case to a fact finder. The court fails to see how the petitioner would want to risk exposing himself to a significantly longer sentence at trial when the basis for a new trial would do nothing to make it more likely that he would be acquitted at the first or second trials. Put another way, pursuing the two claims he wished to would only result in a second trial at which the state’s evidence would be the same as that at the first. In light of that, it is not reasonable to conclude that the petitioner would have rejected the favorable offer and proceeded to trial.
In his post-trial brief, the petitioner also argues that had Attorney Conroy recognized the existence of viable appellate claims, he should have utilized that to negotiate a more favorable plea bargain. This claim must also fail because the petitioner has presented no evidence as to what an alternate offer would have been, or that it would have been accepted by the court. Of course, the offer the petitioner accepted capped his sentence at thirty years’ incarceration, but did leave the sentencing court with discretion to impose a sentence as low as five years’ incarceration. Thus, there is no prejudice.
Accordingly, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.
The commentary to rule 3.7 states: "The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof."