Opinion
No. CV 05-4000673
June 7, 2010
MEMORANDUM OF DECISION
On September 21, 2005, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended by appointed counsel on June 30, 2009. The amended petition raises a single claim: that the petitioner was denied effective assistance of counsel at the trial level, in violation of the sixth and fourteenth amendments to the United States Constitution, and article first, §§ 8 and 9, of the Constitution of the State of Connecticut. The respondent's return denies that the petitioner received ineffective assistance of counsel and leaves the petitioner to his burden of proof.
The parties appeared before this court on November 3, 2009, for a trial on the merits. The court heard testimony from the petitioner; Mary Rose Palmese, the prosecuting attorney; Attorney John Watson, who rendered expert opinions; and Attorney Herman Woodard, who first represented the petitioner in the underlying criminal matters. Additionally, the trial transcript, the record of criminal docket number CR02-0202638, several defense motions from the criminal case, and documents at issue in the criminal case were entered by the parties as full exhibits. The court permitted the parties to file post-trial briefs. The petitioner's brief was filed on January 14, 2010 and supplemented on January 26, 2010; the respondent's brief was filed on February 8, 2010.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact. For the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
1. The petitioner was the defendant in a case in the judicial district of New Britain at New Britain under docket number CR02-0202638. He was eventually charged in an amended long form information with one count of forgery in the second degree, in violation of General Statutes § 53a-139(a)(2).
2. The petitioner was initially represented in the criminal matter by Attorney Herman Woodard. The petitioner was represented at trial by Attorney Otto P. Witt. The claims in this petition are directed only at the representation provided by Mr. Witt, who did not testify at the habeas corpus trial.
3. The petitioner elected a jury trial, Espinosa, J., presiding.
4. On September 19, 2003, following a jury trial, the petitioner was convicted by jury of one count of forgery in the second degree, in violation of General Statutes § 53a-139(a)(2).
5. On November 17, 2003, Judge Espinosa sentenced the petitioner to five years to serve, execution suspended after the service of twenty-five months, followed by five years probation with special conditions.
6. The petitioner appealed from the judgment of conviction and was represented by Attorney Jon L. Schoenhorn on the appeal. "On appeal, the defendant claim[ed] that (1) the evidence was insufficient to support the conviction, (2) the trial court improperly failed to instruct the jury that unanimity on one of the two alternative theories of criminal liability was required for a guilty verdict and (3) prosecutorial misconduct during the state's closing argument deprived him of a fair trial." State v. Mulero, 91 Conn.App. 509, 510, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, U.S., 127 S.Ct. 149, 166 L. Ed.2d 108 (2006).
7. The Appellate Court decision restates the following facts: "In 1996 and 1997, the defendant submitted to the department of motor vehicles three applications for a special permit to operate a motor vehicle to and from work because his driver's license had been suspended. Those applications require a statement of the applicant's specific days and hours of employment, limited to a continuous twelve hour period each day. The applicant's employer also must sign each application. In the first application, dated October 31, 1996, the defendant stated that he was a resident of Newington and was employed as a real estate agent there. The defendant also stated that his hours of employment were 11 a.m. to 11 p.m. seven days per week. The first application bore an employer's signature purportedly made by Robert Velardi, the manager of the real estate office where the defendant stated that he worked. The department denied that application.
8. "In the second application, dated February 10, 1997, the defendant stated that he was employed as a teacher at Vinal Technical High School in Middletown. The defendant also stated that his hours of employment were 6:30 a.m. to 6:30 p.m., Monday through Saturday, and 10:30 a.m. to 6:30 p.m. on Sunday. The second application bore an employer's signature purportedly made by the defendant's supervisor, Thomas Serra. The department granted that application and issued the defendant a special permit that was valid from April 18 to June 11, 1997. The defendant's driver's license was suspended again on July 5, 1997. The defendant then submitted a third application, which was dated October 31, 1997, and bore an employer's signature purportedly made by Serra. The defendant stated that his hours of employment at Vinal Technical High School were 6 a.m. to 6 p.m., seven days per week. The department denied that application because of the July 1997 suspension.
9. "Police began investigating the defendant's applications in December 2000. Velardi denied signing the first application and told police that the defendant had applied for a job as a real estate agent but never had worked for him. Although the defendant had worked at Vinal Technical High School, Serra denied signing the second and third applications. Serra stated that the defendant had worked at Vinal Technical High School only at the time he had submitted the second application and that his hours of employment were not 6:30 a.m. to 6:30 p.m., Monday through Saturday, and 10:30 a.m. to 6:30 p.m. on Sunday, as he had stated in the application, but instead were 7:25 a.m. to 2:55 p.m., Monday through Friday.
10. "The state did not charge the defendant until May 15, 2002, by which time prosecution of the alleged forgeries involving the first and second applications was time barred by General Statutes § 54-193(b). In an amended long form information, the state charged the defendant with one count of forgery in the second degree in connection with the third application. The court granted the state's motion to present evidence relating to the first and second applications as evidence of prior uncharged misconduct." Id., at pgs. 510-11.
11. The Appellate Court affirmed the judgment of the trial court, and both the Connecticut and United States Supreme Courts denied, respectively, petitions for certification and certiorari to appeal.
12. The Court will discuss additional facts as needed.
DISCUSSION
The first, and only, count of the amended petition, as further amended by way of a reply to the respondent's request for a more specific statement, on January 20, 2009, alleges ineffective assistance by trial counsel. More specifically, the petitioner alleges that Mr. Witt committed the following four errors and omissions: provided the petitioner with an incorrect description of the state's burden of proof with respect to the elements of the offense charged in connection with his advice about plea bargaining and the likely result of trial; erroneously assuring the petitioner that evidence surrounding the prior dismissed allegations of forgery could not be used against him at the trial for any purpose; erroneously assumed that the five documents provided by Mr. Pierce to the police, taken from the petitioner's personal file kept at the Board of Education, were taken illegally, and, therefore, would be inadmissible, and based on this erroneous assumption, incorrectly advised the petitioner about plea bargaining and the likely result of the trial; and failed to waive, without consulting with the petitioner, the statute of limitations on the lesser included offense of forgery in the third degree and thereby precluded the jury from potentially giving the verdict of guilty on a lesser charge of forgery in the third degree.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' (Emphasis added; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009), quoting Strickland v. Washington, supra, 466 U.S. 689." Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 875-76, 971 A.2d 735 (2009).
Incorrect description of the state's burden of proof
The petitioner first faults Attorney Witt for providing him with an incorrect description of the state's burden of proof with respect to the elements of the offense charged in connection with his advice about plea bargaining and the likely result of trial.
The arrest warrant application sought the petitioner's arrest on three counts of forgery in the first degree, in violation of General Statutes § 53a-138, as well as three counts of providing false statement, in violation of General Statutes § 53a-157b. Respondent's Exhibit A. After finding probable cause, an arrest warrant was issued and the petitioner was arrested on May 31, 2002. Id. The Uniform Arrest Report (UAR) identifies all six counts in the charges section. Id. The initial information also lists all six charges.
Attorney Woodard, who represented the petitioner during much of the timeframe in which pre-trial negations occurred, represented the petitioner prior to Attorney Witt's appearance in the criminal matter. Mr. Woodward conveyed to the petitioner a plea offer made on February 4, 2003, that would have resulted in a sentence of one year, execution suspended, with one year of probation. The testimony presented during the habeas trial indicated that Judge Handy, the judge overseeing the pre-trial, was amenable to such a sentence. Attorney Witt began representing the petitioner shortly after the petitioner rejected the plea offer conveyed by Mr. Woodard, but prior to trial.
On March 7, 2003, Attorney Witt filed a motion ". . . to dismiss the information for insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the [petitioner] on trial and the applicable statute of limitations." Respondent's Exhibit B. The motion to dismiss asserted that five of the six charges initially brought against the petitioner were barred by the statute of limitations and, therefore, should be dismissed. There is no indication on the motion to dismiss or the copy of the court records that the motion to dismiss was granted or acted on. On August 20, 2003, Attorney Witt filed a substitute motion to dismiss, which sought to correct an error, namely the date of the petitioner's termination from the Connecticut Vocational Technical School System, in the original motion to dismiss. Respondent's Exhibit C. There also is no indication on the substitute motion to dismiss or the copy of the court records that the substitute motion to dismiss was granted or acted on. Nevertheless, it is patently clear that these motions led to the state filing the amended long form information charging the petitioner with the one offense that was not time barred.
The original motion to dismiss identified the date of termination as June 4, 2003. Respondent's Exhibit B. The substitute motion to dismiss corrected the date to June 4, 2001. Respondent's Exhibit C.
As noted in the Appellate Court's decision, the five of the six original counts were time barred. The transcript of the criminal trial indicates that at some point the court dismissed these five counts. See, e.g., Petitioner's Exhibit 1, at pg. 277.
The petitioner testified at the habeas corpus proceeding that he replaced Attorney Woodard with Attorney Witt because the latter had previously represented him. The petitioner presented no testimony about discussions he and Mr. Witt had concerning the elements of the offenses the petitioner was facing prior to the state filing the amended long form information charging him with the one count of forgery in the second degree. Similarly, there was no testimony regarding Mr. Witt's discussions with the petitioner about the elements of forgery in the second degree or the state's burden of proof.
The petitioner testified that Attorney Witt told him the state had a weak case against him with regard to the single count of forgery in the second degree. The petitioner's understanding was that the state had no case against him and, therefore, he opted not to accept the plea offer because of Mr. Witt's assessment of the case. On cross-examination, the petitioner testified that both Attorneys Woodard and Witt talked to him about the impending trial and that Mr. Woodard indicated that the petitioner would be convicted if he went to trial.
Attorney Woodard testified that he met in his office with the petitioner and Attorney Witt before he left the case. Mr. Woodard further testified that he informed the petitioner the state likely had a strong case and later reiterated that assessment to both the petitioner and Mr. Witt. According to Mr. Woodard, he thought the petitioner did not want to resolve the matter via a plea because the petitioner stood to lose his teaching certificate should he be convicted of a felony.
As the foregoing summarized testimony indicates, there is no evidence supporting the claim that Attorney Witt somehow improperly advised the petitioner aside from the petitioner's own self-serving testimony that Mr. Witt told him the state had no case against him. In the absence of any other evidence to corroborate the petitioner's testimony, the court does not find the petitioner credible. The petitioner admitted on cross-examination that he does not mind lying to authority figures if it to his benefit. To wit: the petitioner has lied on job applications the probation officer preparing the presentence investigation report, as well as a police officer who recently stopped the petitioner for trespassing.
Based upon the foregoing, the court concludes that the petitioner has failed to present any credible evidence in support of his allegation that Attorney Witt somehow failed to properly advise him regarding the state's burden of proof on the elements of forgery in the second degree.
Erroneous assurances provided to the petitioner
The second purported error committed by Attorney Witt is that he erroneously assured the petitioner that evidence surrounding the prior dismissed allegations of forgery could not be used against him at the trial for any purpose. This claim suffers from the identical defects, as does the first: Mr. Witt did not testify in the habeas proceeding and the petitioner's testimony is self-serving and not credible.
The petitioner testified that Mr. Witt told him the first two applications that were at issue in the time-barred charges were inadmissible during the trial on the third application. On cross-examination, the petitioner admitted that Attorney Woodard had informed him that the time-barred applications were admissible and would come into evidence. Mr. Woodard testified that he discussed the admissibility of the two earlier job applications during the meeting with the petitioner and Mr. Witt. On cross-examination, Mr. Woodard indicated that he many times had brought up the admissibility of the time-barred applications.
"[P]rior misconduct evidence may be admissible to prove intent, identity, motive, malice or a common plan or scheme. Conn. Code Evid. § 4-5(b). Thus, the fact [t]hat evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material . . ." State v. Jacobson, 283 Conn. 618, 630, 930 A.2d 628 (2007). The two earlier applications were admitted for such purposes and Judge Espinosa accordingly instructed the jury on these documents. Petitioner's Exhibit 1, at pgs. 313-14.
Simply put, the petitioner has failed to present any credible evidence that shows Attorney Witt gave him erroneous assurances that the two earlier forged documents could not be used at trial.
Erroneous assumption and advice regarding admissibility of documents
The petitioner's third allegation is that Attorney Witt erroneously assumed that the five documents provided by Mr. Pierce to the police, taken from the petitioner's personal file kept at the Board of Education, were taken illegally, and, therefore, would be inadmissible, and based on this erroneous assumption, incorrectly advised the petitioner about plea bargaining and the likely result of the trial.
There was no evidence presented that these five documents were illegally taken. These documents were admitted during the criminal trial not for the truth of their contents, but as samples of the petitioner's signature to permit an expert to compare signatures. Mr. Witt later raised several objections to the court's charge to the jury, including issues pertaining to the charge on the expert testimony by the handwriting expert. Id., at pgs. 335-38. As with the two time-barred applications, Attorney Woodard discussed the admissibility of the five Board of Education documents with the petitioner and Attorney Witt.
Based upon the foregoing, the court concludes that the allegation pertaining to the five Board of Education documents is wholly unsupported.
Failure to waive statute of limitations on lesser included offense
The fourth and final claim against Attorney Witt is that he failed to waive, without consulting with the petitioner, the statute of limitations on the lesser included offense of forgery in the third degree and thereby precluded the jury from potentially giving the verdict of guilty on a lesser charge of forgery in the third degree. The record belies this claim.
The transcript of the criminal trial shows that Attorney Witt requested that the court instruct the jury on such a lesser included offense. The prosecutor raised, after Mr. Witt requested the instruction on the lesser included offense, a concern that the statute of limitations had run on that offense. Petitioner's Exhibit 1, pgs. 275-79. The court and counsel discussed the lesser included instruction and the statute of limitations concern. Subsequently, the court, after researching the issue and citing State v. Littlejohn, 199 Conn. 631, 649, 508 A.2d 1376 (1986), asked whether the petitioner was willing to waive the statute of limitations. Petitioner's Exhibit 1, at pg. 289. The petitioner, through Mr. Witt, was not willing to waive the statute of limitations and, consequently, the court did not instruct the jury on the lesser included offense of forgery in the third degree. Id. Mr. Witt later objected to the court not charging the jury on the lesser included offense. Id., at pg. 335.
". . . Our Supreme Court has stated several times that the statute of limitations is an affirmative defense and the burden is on the defendant to prove the elements of the defense by a preponderance of the evidence. See, e.g., State v. Figueroa, 235 Conn. 145, 177-78, 665 A.2d 63 (1995). In Littlejohn, our Supreme Court made clear that the defense of the statute of limitations could be waived by a defendant who sought to plead guilty to a lesser offense that was barred by the statute of limitations. State v. Littlejohn, supra, 639-40. Littlejohn, however, is devoid of any holding concerning whether an offense, which if brought standing alone would be time barred, would be defeated by a statute of limitations defense if charged as a lesser offense included within a greater offense. The petitioner does not cite any case law demonstrating that this is a settled area of the law, and we are unable to find any." Poulin v. Commissioner of Correction, 103 Conn.App. 303, 311-12. 4, 928 A.2d 556, cert. denied, 284 Conn. 918, 931 A.2d 937 (2007), citing State v. Littlejohn, 199 Conn. 631, 649, 508 A.2d 1376 (1986).
The scenario in the instant case falls within what the Poulin court described as an area of the law that is not settled. This case does not provide any meaningful opportunity to further develop this area of the law. As the Appellate Court concluded, ". . . there was sufficient evidence to convict the [petitioner] of issuing or possessing a written instrument that he knew to be forged." State v. Mulero, supra, 91 Conn.App. 512 n. 1. Even if this court were to assume that the petitioner has proven deficient performance by Attorney Witt, which he has not, the court fails to see how the petitioner was prejudiced. The jury here found that the state had proven beyond a reasonable doubt that the petitioner was guilty of forgery in the second degree and the Appellate Court concluded the evidence was sufficient to convict the petitioner of that offense. It is sheer speculation what the jury might have done if instructed on forgery in the third-degree and what an appellate tribunal eventually would have done in this still unsettled area of the law.
Based upon the foregoing, the court concludes that the petitioner has failed to prove that Attorney Witt rendered deficient performance by failing to waive, without consulting with the petitioner, the statute of limitations on the lesser included offense of forgery in the third degree.
Conclusion
The petitioner has failed to prove ineffective assistance by trial defense counsel. Therefore, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare a judgment file, which shall be filed with the clerk within thirty days of the date of this decision.
It is so ordered.