Opinion
No. TSR CV04 0004391-S
October 24, 2007
CORRECTED MEMORANDUM OF DECISION
The petitioner, Kevin Vertefeuille, alleges in his amended petition for a writ of habeas corpus, revised on December 22, 2006, that he was denied the effective assistance of trial defense counsel in violation of the fifth, sixth and fourteenth amendments of the United States constitution, and article first, § 8 of the Connecticut constitution. Petitioner also claims that there was an insufficient factual basis for his guilty plea. As to this claim, respondent raises the affirmative defense of procedural default pursuant to Practice Book § 23-30(b).
The revised amended petition prefaces the two counts in the petition by averring that petitioner was "the defendant in . . . CR96-0148366 and CR04-0192499." The first count goes onto allege that Attorney Fred DeCaprio represented petitioner at the time of his conviction in CR96-0148366 and that Attorney Michael Isko represented petitioner in a subsequent violation of probation proceeding in CR96-0148366. The four paragraphs in count one include no reference or any allegation as to petitioner's conviction in CR04-0192499. Additionally count one fails to set forth a cause of action as to petitioner's conviction in CR96-0148366. As to count two, petitioner entitled count two: "Second Count (as to CR96-0148366)" and incorporated by reference only those paragraphs from count one regarding DeCaprio's representation of petitioner. The paragraphs in count one regarding Isko's representation in CR96-0148366 were omitted from count two. Count two also does not include any independent allegation as to Isko's representation in CR96-0148366 or any allegation pertaining to petitioner's conviction in CR04-0192499. Accordingly the court's memorandum of decision solely addresses petitioner's claims in count two of ineffective assistance of counsel by DeCaprio in CR96-0148366.
During closing argument at the habeas trial, petitioner conceded that he had only proven the claims set forth in count two, ¶¶ 3(c), 3(e) and 4(a), of the amended petition. The other claims in ¶¶ 3 and 4 are therefore deemed abandoned.
Practice Book § 23-30(b) provides: "The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief."
The matter came before the court in March 2007, for a trial on the merits. Witnesses included M. Fred DeCaprio and Michael Isko. The court finds the testimony of DeCaprio and Isko to be generally credible. The court has reviewed and considered the testimony, the exhibits and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
Neither party filed a memorandum of law.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the Superior Court, judicial district of Hartford, docket number CR96-0148366, in which he was charged with the crime of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). The state alleged that the complainant and petitioner were acquainted and had dated for a short time prior to the assault. On February 22, 1996, petitioner forced the complainant to engage in sexual intercourse with him. The complainant was treated at a hospital and various bodily fluid samples were taken from her including one containing spermatozoa. The complainant identified petitioner as the perpetrator of the assault. When questioned by Manchester police, petitioner admitted to engaging in sexual intercourse with the complainant, but claimed that the intercourse was consensual. Petitioner was arrested for this assault and on December 16, 1997, pleaded guilty under the Alford doctrine to one count of sexual assault in the first degree. The plea was canvassed and accepted by the trial court. Petitioner was thereafter committed to the custody of the commissioner of corrections for twelve years execution suspended after twenty-one months and probation for ten years.
North Carolina v. Alford, 400 U.S. 25, 37 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
General Statutes § 53a-70(a)(1).
During the prosecution of the sexual assault, petitioner was represented by Attorney M. Fred DeCaprio. DeCaprio is a graduate of the University of Connecticut Law School and has practiced law for thirty-three years. He is currently a senior assistant public defender assigned to the Office of the Chief Public Defender.
At the habeas trial DeCaprio recalled petitioner but was unable to recall many of the details surrounding his representation of petitioner. DeCaprio testified that it is his practice to obtain copies of the reports, including any medical reports, contained in the state's attorney's file, to review those reports, to discuss the contents of the reports with the defendant and to give the defendant copies of the reports if requested to do so. Additionally it is DeCaprio's practice to interview, if possible, the state's witnesses including the complainant. DeCaprio would also interview any additional witnesses named by the defendant. After completing this investigation, DeCaprio would then make an informed judgment as to the strength of the state's case and so advise the defendant. In petitioner's matter DeCaprio recalled that the state claimed petitioner had sexually assaulted an acquaintance. He did not, however, recall reviewing medical reports or other reports indicating the complainant sustained injury during the assault. DeCaprio recalled that there were some gaps in the state's proof which resulted in a plea bargain offer by the state which DeCaprio believed was reasonable. DeCaprio and petitioner discussed this offer and petitioner made the decision to accept it. DeCaprio further testified that if petitioner had wanted to have had a trial, he would have tried the case.
When petitioner pleaded guilty he had twenty-one months and twenty-four days of pretrial jail credit. Thus when he pleaded guilty and was sentenced on December 16, 1997, petitioner was immediately eligible for release from custody.
DeCaprio also recalled that during his representation of petitioner, he had serious concerns about petitioner's mental health. As a result DeCaprio involved the public defender's social worker in petitioner's case. DeCaprio recalled that at times when he met with petitioner, petitioner was lucid, rationale and reasonable, and at other times, there were difficulties in communicating with him. On those latter occasions, DeCaprio would calm petitioner down as best as he could. DeCaprio could not recall whether he ever sought a competency examination of petitioner. DeCaprio could not specifically recall petitioner's mental status on the date he pleaded guilty but testified if he had believed petitioner was not capable of going forward, he would have requested a continuance.
Sometime in 2001, petitioner was arrested for violation of probation in CR96-0148366 and Attorney Michael Isko was appointed to represent him. As part of his pretrial preparation, Isko reviewed the "original" file from petitioner's 1997 conviction which included a review of the complainant's medical records. Isko did not see any evidence in the medical records of any physical injury suffered by the complainant, nor did Isko see any mention that a sexual assault kit was prepared for the complainant. Isko did not further investigate the original sexual assault conviction or interview any witnesses to the sexual assault.
No evidence was adduced as to whether Isko reviewed DeCaprio's file, the state's attorney's file, the court file or the Manchester police file.
Isko testified that the absence of physical injury in a case of forcible sexual assault would be favorable evidence for a defendant. Both DeCaprio and Isko further testified that in their experience, it is not uncommon in a case of forcible sexual assault for there to be no physical injury.
Additional facts will be discussed as necessary.
DISCUSSION A. Ineffective Assistance of Counsel
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1994). "In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, cert. denied, 273 Conn. 936 (2005). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, cert. denied, 275 Conn. 930 (2005).
The second part of the Strickland test, known as the prejudice prong, was modified by the United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), to assess claims of ineffective assistance of counsel arising from a guilty plea. Copas v. Commissioner of Correction, supra, 234 Conn. 151. "[I]n order to satisfy the prejudice requirement, the [petitioner] must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-56 (2006).
Petitioner claims that DeCaprio was ineffective because he failed to conduct adequate discovery and permitted petitioner to enter a plea when there was inadequate proof to sustain a conviction at trial. "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, supra, 234 Conn. 154.
The court interprets petitioner's claim in this manner. In the amended petition, petitioner's claim is worded specifically: "Counsel permitted the Petitioner to enter the guilty plea when he knew there was inadequate probable cause to sustain a conviction at trial."
Taken together, the amended petition and the arguments made at the habeas trial reveal the crux of petitioner's claims. Petitioner's concern appear to lie with DeCaprio's knowledge concerning the absence of physical injuries sustained by the victim and the state's ability to prove the element of force for the charge of sexual assault in the first degree. Little evidence was adduced at the habeas trial, however, regarding these issues. DeCaprio testified that he could not recall his investigation of petitioner's case or whether the victim's medical report indicated the presence of any physical injuries. DeCaprio further testified that he could not recall what petitioner told him about the incident. Isko testified that he found neither evidence of physical injuries consistent with a forcible sexual assault, nor any mention of a Sexual Assault Examination Kit, in the victim's medical report. Both attorneys testified that it is not uncommon, however, for there to be no physical injuries in cases of forcible sexual assault.
This testimony is consistent with the information contained in Petitioner's Exhibit 4, a letter to petitioner from attorney Isko to petitioner, dated 3/22/01. But see Respondent's Exhibit D, Manchester Police Department Investigation Report dated 2/23/96, which indicates that when the victim was taken to the hospital a Sexual Assault Examination Kit was completed, turned over to the police and secured at police headquarters with the other pieces of evidence that were collected during the investigation. See also footnote 7.
Although the absence of physical injuries might have been favorable to petitioner's defense, petitioner cannot rebut the presumption that DeCaprio "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment"; Strickland v. Washington, supra, 466 U.S. 690; without evidence regarding what DeCaprio knew at the time of the plea and what petitioner and DeCaprio considered in the decision to plead guilty.
Even assuming the absence of physical injuries to the victim, this fact alone does not prove the state lacked evidence to support a conviction at trial in that physical injury to the complainant is not an element of the crime of sexual assault in the first degree. To sustain a conviction for sexual assault in the first degree, the state need only prove the defendant used force to accomplish sexual intercourse. State v. Kulmac, 230 Conn. 43, 75-77 (1994). "Use of force" is defined as "use of actual physical force or violence or superior physical strength against the victim." Gen. Stat. § 53a-65(7)(B). The focus in a sexual assault case is the conduct of the defendant and his use of force, State v. Kulmac, supra, 230 Conn. 75; not on the presence of physical injury to the victim. Moreover, proof of the use of force does not require proof of earnest resistance, physical injury or torn clothing. State v. Williams, 16 Conn.App. 75 (1988).
Additionally aside from DeCaprio's testimony at the habeas trial that the state's plea bargain offer was reasonable, no evidence was adduced on the issue of why petitioner pleaded guilty. DeCaprio could not recall many details of the petitioner's case and petitioner chose not to testify, thus his version of events was not put on the record. As a result the court was provided with limited information concerning the circumstances surrounding petitioner's plea. Based on the foregoing, petitioner's claim fails to satisfy the first part of the Strickland test.
Petitioner's habeas counsel stated on the record that he thought it would be beneficial to the case if petitioner testified. During recess, counsel attempted to talk with petitioner about testifying; however, petitioner refused to meet with counsel.
Even if petitioner had proven deficient performance, there is nothing in evidence indicating that petitioner would have pleaded not guilty and proceeded to trial. Petitioner did not testify and DeCaprio testified that if petitioner had wanted to have a trial, he would have tried the case. There is also no proof that, had petitioner proceeded to trial, his defense would likely have been successful. "In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation but demonstrable realities." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 860, cert. denied, 275 Conn. 905 (2005). The petitioner has failed to prove prejudice; therefore, his ineffective assistance claim fails on both parts of the Strickland test.
B. Insufficient Factual Basis for Plea
Petitioner finally claims that there was an insufficient factual basis for the court to accept his guilty plea. Specifically, petitioner claims that the state did not allege facts in support of force as an element of sexual assault in the first degree. To this claim respondent raises the affirmative defense of procedural default pursuant to Practice Book § 23-30(b). Respondent asserts that petitioner's claim is not reviewable because he failed to show cause for the procedural default and the prejudice resulting therefrom. Indeed, petitioner neither submitted a reply as required under Practice Book § 23-31(c), nor addressed the issue of procedural default at the habeas trial.
Practice Book § 23-31(c) provides: "The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition."
It is well settled that a petitioner may not raise a constitutional claim for the first time in a habeas petition that could have been addressed on direct appeal. Gray v. Commissioner of Correction, 84 Conn.App. 515, 518 (per curiam), cert. denied, 271 Conn. 930 (2004). The purpose behind this axiom is clear. Procedural rules serve important purposes at trial and on direct appeal. Jackson v. Commissioner of Correction, 227 Conn. 124, 134 (1993). Such rules allow for the efficient resolution of issues, to ensure that the necessary evidence and potential witnesses are available for a new trial proceeding or appeal. See id. This "promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case." Id., quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Citations omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). If the petitioner fails in this burden of proof, the habeas court will not reach the merits of the claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
Here, petitioner failed to move to withdraw his plea pursuant to Practice Book §§ 39-26 and 39-27(5) and failed to file a direct appeal. He has, therefore, procedurally defaulted. Petitioner's claim might have been saved had he filed a reply or asserted at the habeas trial that the procedural default was "caused by some objective factor external to his own defense and that [it] was prejudicial." Cobham v. Commissioner of Correction, supra, 258 Conn. 41. This, however, petitioner has failed to do and, as a result, his claim is untenable.
Although petitioner's plea and sentencing occurred during the same hearing, had petitioner wanted to challenge the factual basis for the plea he could have done so before the trial court accepted the plea and he was sentenced.
Practice Book § 39-26 provides, in relevant part: "A defendant may withdraw his or her plea of guilty . . . as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27."
Practice Book § 39-27(5) provides: "The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows . . . There was no factual basis for the plea . . ."
Notwithstanding the procedural default, petitioner's claim fails on the merits. "It is well settled that [Connecticut] state courts are under no constitutionally imposed duty to establish a factual basis for a guilty plea prior to its acceptance unless the judge is put on notice that there may be some need for such an inquiry." (Internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 149 (2005), cert. denied, 126 S.Ct. 298, 165 L.Ed.2d 988 (2006), quoting Paulsen v. Manson, 203 Conn. 484, 490-91 (1987). "The entry of an Alford plea is not sufficient to put the court on notice that it is necessary to establish a factual basis for a guilty plea." Ghant v. Commissioner of Correction, 255 Conn. 1, 15 (2000), citing State v. Niblack, 220 Conn. 270, 281-82 (1991). In addition, state "procedural rules do not require a factual basis for a court to accept an Alford plea. State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981)." Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 730 (2000).
"A court may nevertheless, in its discretion, require a factual basis before accepting a nolo contendere or Alford plea. State v. Godek, [ supra, 182 Conn. 365 n. 13]." Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 730 n. 10.
At petitioner's plea hearing, the state's attorney placed on the record facts in support of each element of the charge of sexual assault in the first degree. Petitioner now argues that the state's attorney's recitation of the facts on the element of force was a factual conclusion unsupported by any underlying facts. Before accepting petitioner's plea of guilty, the trial court was not required, however, to find a factual basis. Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 730. Nor has petitioner put forth any evidence to show there was a need for the trial court to establish an additional factual basis for the guilty plea. A review of the trial transcript shows there is nothing in the trial court record which would have alerted the court to such a need. Before the court accepted petitioner's plea of guilty, the court advised petitioner of the elements of the crime to which he was pleading guilty, the maximum and minimum mandatory penalty, the plea agreement with the state and an explanation of the Alford doctrine. The court followed up these advisements by asking if petitioner had any questions of the court or his attorney and petitioner responded that he did not. Notwithstanding Isko's testimony at the habeas trial that he saw no report of physical injury in the victim's medical records, this evidence is insufficient to conclude the trial court needed to establish a factual basis on the element of the use of force. Petitioner's conviction therefore does not suffer from a constitutional infirmity. See State v. Greene, supra, 274 Conn. 149.
The state's attorney stated: "On February 22, 1996, the defendant compelled another person to engage in sexual intercourse by the use of force against her. This took place in the victim's home in Manchester . . . The victim and the defendant had a prior relationship which, according to the victim, had ended well before this, and he had come to her home, she allowed him in, eventually he forced her to have sex with him. She went to a meeting where she met up with some counselors. They convinced her to make a report, brought her to Manchester Memorial Hospital. A sexual assault kit was done, a lab did . . . testing of that, and there was the presence of spermatozoa. The defendant was spoken to by the police officers. He claimed she consented. He was brought to the hospital . . . the same night as she made her complaint and was identified [by the victim] as the person who assaulted her." Criminal Trial Transcript dated December 16, 1997, p. 1-2.
"THE COURT: The state would have had to prove that you compelled another person to engage in sexual intercourse by the use of force against such other person. Do you understand that's what they would have had to have proven beyond a reasonable doubt?
"[PETITIONER]: Yes.
"THE COURT: That is punishable by a maximum of up to twenty years with a one year minimum mandatory. The agreement here is twelve years, suspended after twenty-one months, one year of that is minimum mandatory, followed by ten years probation. Is that your understanding of the agreement here, sir?
"[PETITIONER]: Yes.
"THE COURT: Do you have any questions about that at all?
"[PETITIONER]: No.
"THE COURT: Now, you pled guilty under the Alford doctrine. That means you pled guilty but you don't agree necessarily with everything that the State summarized as far as the facts or what they claim they could prove at trial. But you would rather plead guilty, accept the agreed recommendation, rather than run the risk of going to trial. Is that fair to say?
"[PETITIONER]: Yes.
"THE COURT: Is that why you're pleading guilty, sir, under the Alford doctrine?
"[PETITIONER]: Yeah." Criminal Trial Transcript, December 16, 1997, p. 3-4.
"THE COURT: Have you understood the questions I've asked you, sir?
"[PETITIONER]: Yes.
"THE COURT: Do you have any questions at all that you want to ask me or anything you want to ask your lawyer about anything I asked you or anything about what is going on here today?
"[PETITIONER]: No."
Id. at 5.
As stated previously physical injury to the victim is not an element of the crime of sexual assault in the first degree. Moreover, the absence of physical injury does not mandate a conclusion that the perpetrator did not use of force.
Accordingly, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.