Opinion
No. CV03-0004241
January 5, 2005
MEMORANDUM OF DECISION
The petitioner, Alicja Niver, is a citizen of the country of Poland and a lawfully admitted resident alien of the United States. She alleges in her single-count petition for a Writ of Habeas Corpus initially filed on November 4, 2003 and amended for the final time on March 2, 2004, that her imprisonment, together with the collateral consequences of the convictions, are illegal. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting her burden of proof and the petition shall be denied.
The petition does not directly allege that her convictions are the result of any specific constitutional violations of either the Federal or state Constitutions. In subsequent pleadings filed with this court, the petitioner does make reference to the United States Constitution, however, there is no specific reference or citation to the state of Connecticut's Constitution.
The claim of ineffective assistance of counsel essentially complains that her trial defense counsel failed to inform the petitioner that her deportation was a virtual certainty if she pleaded guilty to Robbery and Larceny. The assertion is that this failure constitutes a further failure to properly advise the petitioner about the meaning and effect of her plea of guilty. The petitioner argues that as a result, the trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that this court order appropriate relief.
The petitioner has also raised a complaint that the arresting authority failed to notify the Polish Consulate of her arrest, thereby depriving her of the opportunity to consult with consular officials. She also alleges that the trial judge who canvassed her regarding her plea of guilty failed to advise of her right to consult with the Polish consulate. As authority for this, the petitioner cites to the Vienna Convention on Consular Relations as authority. Notwithstanding, this court finds these allegations to be totally without merit and summarily dismisses that portion of the petition. The Vienna convention clearly is not intended to create any enforceable rights on the part of individuals but is instead an agreement that governs the relations between governments. Bread v. Warden, 523 U.S. 1026 (2000). Moreover, this court further finds that as a lawfully admitted resident alien, the duty of the United States to notify the Polish consulate did not exist either. See Consular Convention between the Government of the United States of America and the Government of the Polish People's Republic, TIAS 7642, 24 U.S.T. 1231.
The petitioner does not ask for any specific form of relief. Implicit within the trial of this case was a request to set aside the guilty plea and restore the case to the trial docket. Granting this relief would not mean that the petitioner would be free from prosecution for the state would be free to pursue all of the original charges in this case at a trial on the merits.
This matter came on for trial before this Court on November 9 15, 2004 and again on December 21 22, 2004. The petitioner, her trial defense counsel, Attorney Christopher Cosgrove, the petitioner's husband and sister, Attorney James Swaine, and Ms. Darcy Levetre, a social worker, all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact CT Page 43
1. The petitioner is a citizen of Poland, having been born in that country and emigrating to the United States approximately twenty-seven years ago. The petitioner is a lawfully admitted resident alien and is married to Mr. Ernest Niver, a United States citizen. The petitioner has given birth to two children, both of whom are citizens of the United States by virtue of their having been born in this country. The petitioner has applied for citizenship twice in the past but has never completed either of those applications. The petitioner's parents and siblings all are naturalized American citizens and live in the United States.
As of April 16, 1980.
2. The petitioner was the defendant in a criminal case in the Judicial District of Litchfield under Docket Number CR99-98546, in which she entered into a plea agreement with the state whereby the petitioner would plead guilty to a substitute information charging Robbery in the 3rd degree in violation of CGS § 53a-136 and Larceny in the 3rd degree in violation of CGS § 53a-124 in exchange for which the total effective sentence would be ten years, suspended after the service of five years with a right to argue for less.
Although neither counsel saw fit to introduce any evidence as to the exact nature of the original charges, there was testimony from the petitioner's trial defense counsel that the plea bargain reduced the original charges from B and C felonies to class D felonies. There was also a passing reference made to the maximum potential sentence based upon the original charges as being in the vicinity of forty-three years. From all of this, the court infers that the original charges were serious and concludes that the trial defense counsel achieved a major victory by managing to get the state to agree to substituting class D felonies, the lowest level of felony available.
3. Attorney Christopher Cosgrove, a Public Defender in and for the Judicial District of Litchfield represented the petitioner in this matter.
4. The charges arose out of an incident on June 3, 1999 in which the petitioner entered a coffee shop in Torrington and indicated to the individuals in the store that she had a gun and that she wanted money. She was given $117 from the cash register and also took some money from a patron. She fled the scene in a car belonging to a patron from whom she had taken the car keys during the robbery.
5. The petitioner was no stranger to the legal system, having been convicted of several felonies before this incident both in Connecticut and the state of Florida. Indeed, the petitioner had already served some time in prison before she committed the instant offenses.
6. The petitioner suffers from drug addiction issues, Bi-Polar Disorder, and Parkinson's disease. She is on Social Security Disability having been found totally disabled.
7. The issue of the petitioner's immigration status and potential deportation if she were convicted of the 1999 charges was a prime concern to Attorney Cosgrove as he attempted to resolve the petitioner's legal difficulties in the manner most favorable to her.
8. At various times during his representation, Attorney Cosgrove clearly and repeatedly advised the petitioner that a conviction of these offenses might, could, and probably would result in her deportation to Poland. Attorney Cosgrove did not, however, definitively inform the petitioner that conviction would certainly or definitely result in her deportation.
9. Attorney Cosgrove met with the petitioner repeatedly during the pretrial phase of her case and addressed the immigration issues with her on at least three separate occasions. He also met separately with the petitioner's husband and recommended that he consult with an immigration attorney regarding the potential deportation issue.
10. The petitioner was not concerned about the potential for deportation since she had had several previous convictions and the Immigration and Naturalization Service (INS) had never deported her before. The petitioner's prime concern in regard to her criminal case was to get the matter resolved with as little prison time as possible.
11. Attorney Cosgrove consulted with an attorney working for the INS to explore potential immigration issues. Based upon this attorney's advice, Attorney Cosgrove attempted to negotiate with the state attorneys in order to get the charges reduced to misdemeanors and to avoid the imposition of incarceration.
12. The state attorney was adamant that he would not voluntarily reduce the charges to misdemeanors.
13. Ultimately, the petitioner and the state came to a plea agreement whereby the petitioner would plead guilty to robbery in the 3rd degree and larceny in the 3rd degree. Both are Class D felonies. The state would recommend a sentence of ten years, suspended after the service of five years to be followed by probation. The petitioner retained the right to argue for a lesser sentence, including one in which the to serve portion was totally suspended.
14. On October 5, 1999, pursuant to this plea agreement, the petitioner entered her pleas of guilty. The Court, DiPentima, J., thoroughly canvassed the petitioner and found her pleas to be knowingly and voluntarily made with the assistance of competent counsel. In particular, the petitioner was specifically advised that if she was not a citizen of the United States conviction of these offenses could result in deportation, exclusion from admission to the United States and/or denial of naturalization. The Court further ascertained that she had discussed these immigration ramifications with her attorney. The Court thereafter accepted the pleas and entered the appropriate findings of guilty.
15. The Court, DiPentirna, J. then ordered the preparation of a Pre-Sentence Investigation and continued the matter until December 3, 1999 for the imposition of sentence.
16. On the date of sentencing, the petitioner was sentenced to a ten-year sentence, suspended after the service of three years to be followed by probation. Shortly before the completion of her sentence to confinement while the petitioner was in a half-way house, the INS served a detainer on her pending deportation proceedings.
17. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw her voluntary pleas of guilty to the charges of Robbery in the 3rd degree in violation of CGS § 53a-136 and Larceny in the 3rd degree in violation of CGS § 53a-124. The gravamen of the petitioner's complaint is her assertion that Attorney Cosgrove failed to advise her that a plea of guilty to these offenses would definitely result in her deportation and that this rendered his representation per se, ineffective.
There is, of course, a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422.
In this case, not only has the petitioner been convicted of the offense, she has been convicted pursuant to her pleas of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Reddick, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn.App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn.App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151. (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of her guilty plea, the petitioner was represented by counsel and fully understood the import of what she was doing. Consequently, her guilty plea is valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his or her client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper advice in connection with the decision to accept or reject a pretrial agreement may well be providing ineffective representation. "The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
Now, the petitioner comes to Court seeking to set aside her pleas of guilty on the ground that her attorney failed to fully advise her as to the immigration consequences of her plea. In support of that claim, the petitioner introduced the testimony of Attorney James Swaine who testified as an expert on immigration law and criminal defense and opined that it was the standard of care amongst criminal defense practitioners to advise a client such as the petitioner that her pleas of guilty would definitely result in deportation. Despite the testimony from Attorney Swaine who presented as an intelligent, sincere practitioner, this Court finds that the standard of care as suggested by Attorney Swaine is not the existing standard of care. Attorney Swaine's proposed standard may well be an ideal, but is not a mandatory standard. "The range of competence set forth in McMann requires not errorless counsel, and not counsel judged ineffective by hindsight, but `counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.' State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977); State v. McClain, 171 Conn. 293, 301, 370 A.2d 928 (1976). The plaintiff must, moreover, demonstrate that there was such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance. Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff'd 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45, reh. denied, 407 U.S. 934, 92 S.Ct. 2464, 32 L.Ed.2d 817 (1972)." Buckley v. Warden, 177 Conn. 538 at 544 (1979).
A critical point in this case is the scope of the representation that Attorney Cosgrove was being called upon to perform in this case. The petitioner was facing serious criminal charges in the Superior Court for the state of Connecticut. Attorney Cosgrove is a Public Defender. As such, his mandate is to provide representation in the criminal matter, not to represent the petitioner in a potential deportation proceeding. To be sure, the issues surrounding the petitioner's immigration status and the potential for deportation cannot be totally divorced from the criminal matters for which Attorney Cosgrove was responsible. It is clear that the collateral consequences of a conviction may be far in excess that which the criminal court may adjudge. That is undoubtedly true in this case. The petitioner is married to a United States citizen, her children were born and raised in the United States. Her family has all immigrated to the United States from Poland and adopted United States citizenship. The petitioner has lived in the United States for most of her life and has no relatives or close acquaintances in her native country. Consequently, deportation will be a severe collateral consequence and should have been appropriately considered by the petitioner and her counsel in the pretrial negotiation stages.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by her trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, she would have pled not guilty, gone to trial and been acquitted.
This Court cannot find any deficiencies in the performance of Attorney Cosgrove. He clearly conducted an adequate investigation, was fully aware of the facts of the case, and managed to negotiate a favorable pretrial settlement of the case. Moreover, Attorney Cosgrove was acutely aware of the immigration implications that his client, the petitioner, faced. He went to great lengths to investigate and see how to ameliorate the ill effects of the conviction. The bottom line, however, is that this petitioner had committed several serious crimes, was facing substantial confinement and was already at risk for deportation on the basis of her previous convictions. Attorney Cosgrove managed to negotiate a good pretrial agreement that was in his client's best interests to accept. Based upon the evidence presented in the habeas trial, it is most unlikely that the petitioner would have been acquitted had she rejected the pretrial agreement and taken the matter to trial. More likely than not she would still be facing deportation, but the adjudged period of confinement would likely to have been significantly greater. Consequently, despite Attorney Swaine's opinion that the standard of care should be as he testified in the habeas trial, this court concludes that Attorney Cosgrove's performance of his duties, while not arising to the idealistic standard posited by Attorney Swaine, easily met the minimum standard of care and was not deficient.
It is not even necessary to consider whether a trial counsel's performance was deficient if the habeas court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered I into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, she freely made the choice to give up her constitutional right to a trial in order to obtain favorable consideration upon sentencing. It is clear that the prime focus of the petitioner during the pretrial stage of her case was not her potential deportation but to minimize the amount of confinement she might have to serve. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, CT Page 52 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61. Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, she cannot do.
The Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge