Opinion
No. CV02-465306-S
March 9, 2006
MEMORANDUM OF DECISION ON PETITIONER'S REQUEST FOR HABEAS RELIEF
This is a habeas filed by the petitioner Sadi Vidro. The petitioner was arrested October 25, 1999 and charged with Possession With Intent to Sell Narcotics § 21a-278(b); Possession With Intent to Sell Narcotics within 1500 feet of a public housing project, § 21a-278a(b); Criminal Trespass 3d, § 53a-109(a); Escape from Custody, § 53a-171. He plead not guilty and was tried to a jury. The jury found Mr. Vidro guilty on all charges. On October 13, 2000 the court sentenced Vidro to fifteen years for violation of § 21a-278b; three years consecutive for § 21a-278ab; to be served consecutively to the § 21a-278(b) charge; three months concurrent for criminal trespass 3d and one year concurrent for escape from custody for a total effective sentence of eighteen years.
The Appellate Court confirmed the conviction in State of Connecticut v. Sadi Vidro, 71 Conn.App. 89.
The Appellate Court summarized the general factual background to the case at pages 91 through 93 of its opinion:
During the evening of October 22, 1999, Officers Elvin Rivera and Huey Young of the New Haven police department were on foot patrol in full uniform in the Quinnipiac Housing Complex. At 10 p.m., they walked to Dover Street, which is known as an area where narcotics transactions occur, and positioned themselves in the foyer of a building for surveillance of the well illuminated Street. They observed the defendant standing approximately forty feet away on the sidewalk. A white Ford Escort drove up to the curb, and the defendant approached the driver's side of the car. The officers then observed the defendant withdraw a plastic sandwich bag from his right jacket pocket, extract a smaller object from the bag and hand that object to the driver of the car. The driver, in return, handed something to the defendant that appeared to be money. The car then drove away, and the defendant started to walk toward the officers' vantage point. The officers left their surveillance point and approached the defendant, who dropped the sandwich bag as he continued to walk toward the officers.
Rivera confronted the defendant and ascertained that he did not live in the housing complex or know anyone who lived there. Each officer took the defendant by an arm and placed him against the wall of a building. Rivera patted him down for weapons and requested some identification. The defendant stated that his name was Sadi Vidro and that he had identification in his wallet. Rivera removed the defendant's wallet from his pocket and found an operator's license, a bank card and some credit cards bearing the name Sadi Vidro. The photograph on the license resembled the person in custody. Rivera then handed the license to Young, who also compared the photograph on it with the defendant's features. Both officers testified that the person in custody and the person in the photograph were the same.
Rivera took out his handcuffs and informed the defendant that he was under arrest for trespassing. "No trespassing" signs were posted on the property. The defendant wrenched himself free and fled from the officers. The handcuffs, the wallet and Young's flashlight fell to the ground while the officers pursued the defendant. In the course of the pursuit, Rivera called the police dispatcher, indicated that they were engaged in a foot pursuit and gave a description of the fugitive and the direction in which he was heading. When the officers lost sight of the defendant, they returned to the scene and retrieved the handcuffs, wallet and flashlight, along with the plastic sandwich bag dropped by the defendant. Rivera opened the sandwich bag and found nineteen small plastic bags that contained white powder. He turned the bags over to a third police officer who field tested the contents of one of the bags, which tested positive for cocaine. Upon checking the wallet, Rivera found the business card of John Kelly, a parole officer with the department of correction. Rivera then called the telephone number on the card and left a message on Kelly's answering machine, relating the events that had transpired.
On Monday, October 25, Kelly called Rivera and informed him that he had gone to the defendant's home, had arrested him for violation of his parole conditions and had placed him in the New Haven police lockup, arid he requested that Rivera go to the lockup to identify the defendant. Rivera proceeded to the New Haven lockup where he saw the defendant in the holding cell. Rivera recognized the defendant as the individual he had encountered on the evening of October 22, and the defendant was arrested.
At trial, the defendant maintained that he had lost his wallet sometime between 8 p.m. and 10 p.m. on the evening in question, that he had reported it missing at 11:26 p.m. and that he was at home that evening with his sister. The jury found the defendant guilty on all four counts. Thereafter, the court sentenced the defendant to a total effective sentence of eighteen years. This appeal followed. Additional facts will be provided as necessary.
The brief filed in behalf of the petitioner lies in two separate parts. The general claims are as follows:
(1) But for Trial Counsel's Failure to Thoroughly Prepare for Trial Petitioner would have been acquitted of the charges.
(2) Petitioner's Due Process Rights were violated when he was sentenced to two punishments for the same offense despite the prohibition by the United States Constitution Against Double Jeopardy.
The court will try to discuss each claim separately.
I The first claim appears to be based on several allegations having to do with ineffective assistance as a result of decisions made during trial and a general failure to adequately communicate with the petitioner before and during trial. The several elements of this claim will be discussed more fully but basically they involve the following:
(1) Counsel failed to have introduced into evidence a certain telephone bill which would have corroborated his alibi that at the time of the offense he was at home watching a movie with his sister. A girlfriend allegedly called him long distance and the bill showed the date and time of the call.
(2) Counsel failed to impeach Officer Rivera's testimony that he never met the petitioner or his father before the date of the alleged crime.
(3) The petitioner claims in his habeas action that counsel failed to have adequate contact with or interviews with the petitioner.
At the habeas hearing Mr. Vidro testified as did his mother Dora Carr and the young woman who allegedly called Vidro on October 22, 1999 and was talking to him at the time of the alleged criminal activity for which he was later arrested and convicted.
Before discussing each of the foregoing matters the court will first set forth the general law which it feels is applicable.
"A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 said that:
. . . [T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fall below an objective standard of reasonableness and (2) there is a reasonable probability that but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim-did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect-given ineffective assistance was there prejudice.
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 Strickland went on to say that: "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.'"
On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence," Profitt v. Waldron, 831 F.2d 1245, 1248 (CA5, 1987).
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland, at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pp. 694-95. See also Duperry v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
Finally in applying the two-prong test of Strickland as to (1) deficient performance and (2) whether the deficient performance prejudiced the defendant, the following comment of the Strickland court should be noted:
. . . [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . 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, which we expect will often be so, that course should be followed:
In State v. Salazar, 707 P.2d 944 (Ariz. 1985), the court, following Strickland, said that . . . "we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pp. 945, 946. The court went on to hold id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal.4th 349, 367, 959 P.2d 1169 (1998); 21a Am.Jur.2d "Criminal Law," § 1225, page 490.
II
The court will now discuss the various allegations under the ineffective assistance of counsel claim.
(a)
The position advanced by the defendant at trial was that he was not the man Officers Young and Rivera tried to apprehend as the result of suspected drug activity at the Quinnipiac Housing Project at around 10 p.m. on October 22, 1999. Vidro did not testify at trial but the story he presented through his father, Sadi Vidro Sr. and his sister to support this position was that he had lost his wallet the evening of and before the crime and told both these witnesses of that loss. This was an attempt to overcome the obviously powerful evidence of his involvement because of the fact that (1) his wallet was found at the scene of the drug activity in the possession of the man involved in that activity and (2) the one on one identification of him as the man involved in the drug activity by Officer Rivera a few days after the October 22d incident. Another important aspect of the defense was testimony from his sister Johura Roman and Jill Caliguiri, a woman who claimed she was romantically involved with him at the time in question. His sister testified that on the evening of October 22d she and her brother planned to watch rented movies. She started a movie around 9:30 p.m. and about twenty minutes later Vidro got a call. He was on the phone for about an hour and said he was talking to "Jill."
Jill Caliguiri then testified. She said she was the person who called the petitioner on the night in question. She testified she did not remember how many times she called Vidro on October 22, 1999 "because I called him several times."
Defense counsel then asked to approach his witness after asking if a certain "document" would refresh her memory. Upon being asked if the document did refresh her memory Caliguiri said it did and that she remembered talking to him once on that date. She said the call lasted for over an hour. Defense counsel asked her what time she called to which she responded "I do not recall." The "document" was shown to her again and was asked again when she called and she said 10:02 and the conversation was 67 minutes.
The petitioner's position is that defense counsel was "deficient" because he failed to introduce into evidence a phone bill which was marked as exhibit 2 at the habeas hearing. That was the document used to refresh Caliguiri's memory. It shows a call to 787-9688 in New Haven on October 22, 1999 at 10:02 p.m. that lasted for 67 minutes. The call was placed from a Rye, New York number at the place where Caliguiri lived and was a bill to that number. Interestingly the bill also shows calls to the "789" number and another number in the Vidro house ten times after October 22, 1999 in the month of October and five times after the date of arrest.
The bill of course does not indicate who was speaking on the phone from the calling or receiving end. The petitioner's position in his habeas brief is that the bill showed "a telephone call between Petitioner and Jill Caliguiri, his girlfriend, which was occurring at the time which it was alleged he was present in the Quinnipiac Housing Project on October 22, 1999. A key aspect of the "deficiency" or ineffective assistance argument is underlined in petitioner's brief where he says "In the course of deliberations, the jurors requested a copy of the phone bill but it could not be provided to them because it had not been entered as a full exhibit."
(i)
Using the Strickland test the deficient performance and prejudice prong are somewhat intertwined in this case. But from either perspective it is clear to the court, for a variety of reasons, that neither prong has been satisfied. The court will discuss the second prong — involving the prejudice claim, first.
For one thing it was quite clear that the "document" Caliguiri was using to refresh her recollection was the phone bill in question and that she was directly referring to its contents. The trial took place over two and a half years after October 22d and the call in question. Common sense would seem to indicate, of which lay jurors have a great deal of, that when Caliguiri was shown the "document" she must have been reading directly from a phone bill because she in effect testified yes I remember now — the call was made at "10:02 p.m." and lasted "67 minutes." At one point in his examination of Caliguiri, defense counsel explicitly referred to the "document" used to refresh her recollection was a "telephone bill." In closing arguments defense counsel said: "The State had me asking her questions and showing her a document which is her telephone bill. And on that telephone bill she started a telephone call at 10:02 to Mr. Vidro."
In its closing argument the Assistant State's Attorney did not even dispute that a call had been made by Caliguiri to the Vidro household on October 22, 1999 at the time in question. Referring to Caliguiri he says "Who is she calling" Who was she talking to on October 22d? You have to determine. Did she talk to Sadi Vidro Jr.? I would think not." The State dealt with the call by saying Caliguiri might have spoken to Vidro at some point during the 67 minute call — maybe he came crashing in during the call saying to Caliguiri he was in big trouble because of the drug incident. The State argued the call lasted to 11:09 having started at 10:02 p.m. and noted it was right after that that Vidro called in to report his wallet was stolen. The point is that the evidence was overwhelming that the call was made, the only dispute was who was on the phone — something a phone bill would not have shown.
Under these circumstances the court cannot find the second prong was met — where is the prejudice in not introducing into evidence corroboration of what was undisputed, i.e., the fact of the call. Also how can we ascertain why the jury wanted a copy of the phone bill. The bill also revealed Caliguiri called New Haven on October 26, 1999 and spoke to someone for 59 minutes — she said this after defense counsel again had her refresh her recollection with a "document" which was obviously the phone bill in question. Caliguiri said she spoke to the sister, the sister said she did not speak to Caliguiri. But a theme of the State's closing argument was that the phone conversation alibi was all concocted to explain away the fact that a police identification and his wallet put him at the scene of a drug transaction at the same time the call was taking place. And in closing the State in its first and in its rebuttal argument refers to the fact that the sister denies talking to Caliguiri the day after Vidro's arrest for 59 minutes while Caliguiri said she did talk to the sister. The intimation of these references being the plot was on to invent an alibi. Perhaps the jury wanted the phone bill to verify the October 26, 1999 call? If we cannot even determine why the jury was asking for the phone bill the second prong cannot be established.
(ii)
The foregoing discussing the prejudice prong leads the court to also conclude that there was no deficient performance on the part of the experienced defense lawyer who tried the case. He testified at the habeas proceeding and said that one reason he did not put the phone bill in because there were several calls listed to the Vidro house before and after the arrest. He did not want to undermine the alibi defense by suggesting Caliguiri could have reason or interest in calling not just related to speaking to the petitioner. He said the phone bill would not show who the parties on the call were. As the court itself has suggested defense counsel also indicated he did not think putting the phone bill in would do harm but "I just didn't think it would do any good." Counsel also implied that with calls occurring after the arrest the whole thing looked "fishy" to him. As noted previously the State hinted at that in its closing. Counsel also denied telling Vidro he simply forgot to put the phone bill into evidence. Even if he did, however, that would impeach the reasons given at the habeas proceeding by counsel as being operative at the time of trial but would not establish ineffective assistance if for all of those reasons and others suggested by the court failure to put the phone bill into evidence as such was not deficient performance.
(b)
A claim of deficient performance is also made on the basis that counsel had few meetings with the petitioner. The meetings that were held were of short duration; they all took place in the court room or in a small room annexed to it. Petitioner first met counsel when jury selection commenced although another member of the firm worked on the file before then. Petitioner's mother said she retained defense counsel in February 2000 and for several months left numerous messages for him to speak to her son.
As the State points out and as the transcript reveals petitioner agreed at the habeas hearing that during the jury selection process and during the trial he did speak to his lawyer during breaks. He talked to the lawyer about his alibi and his witnesses on these occasions although the lawyer never came to the jail to see him prior to trial. Prior to trial lawyers from counsel's office represented him at court appearances. Vidro "guessed" they were relaying information to defense counsel. Vidro said the lawyer did talk to him about testifying and then he was asked "Did he tell you what was going to be taking place at the trial?" — the answer was "Yes, he pretty much explained what was happening."
Rather than concentrating on the amount of time spent or not spent between lawyer and client the court will directly discuss what it considers to be a fatal flaw in the petitioner's claim.
Not an iota of evidence at the hearing was presented nor does anything in the trial record appear which suggests that a failure of the lawyer to spend more time discussing the case or the courtroom location of any lawyer-client contacts in any way prejudiced the petitioner or lead to a situation where evidence or witnesses that could have been presented in the petitioner's behalf at trial were not presented.
The second prejudice prong of Strickland has therefore not been met. In a way these failure to have non-lockup interviews with the client or failure to spend sufficient time with the client are subsets of claims made of failure to adequately investigate a case on behalf of the client. In a failure to investigate claim the court cannot even begin to make a Strickland analysis on the deficient performance or prejudice component unless it is shown what specific evidence or testimony would have resulted if there had not been the deficient performance that is claimed, cf. U.S. ex rel Partee v. Lane, 926 F.2d 694, 701 (7th Cir., 1991). Something must be presented at a habeas proceeding which takes the issue of prejudice for failure to investigate out of the realm of speculation, cf. U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir., 1991).
Similarly where the claim is made that inadequate time was spent with a client or that the lawyer indicated prior to trial that client contact was not necessary as a letter to Ms. Carr seemed to indicate, a court cannot be asked to speculate that something favorable to the defendant would have been unearthed if "adequate" client contact had been maintained. A petitioner must offer argument or evidence at the habeas proceeding or it must be apparent from the record that indicate what this unearthed something favorable to the defendant might have been.
This is especially so in a situation such as here where a reading of the trial transcript does not reveal any lack of preparation by defense counsel in confronting hostile witnesses or eliciting testimony from State's witnesses and nothing suggests any witnesses or evidence that could have been located or presented were not brought into the trial.
(c)
The petitioner's final claim of deficient performance causing prejudice as defined in Strickland is best summed up in petitioner's brief which the court will quote without reference to cites to the transcript:
The petitioner further testified that, despite Officer Rivera's testimony to the contrary, Officer Rivera, one of the two officers involved in the detainment of the perpetrator at the Quinnipiac Housing Project on October 22, 1999, knew the petitioner and/or the petitioners father, and that although trial counsel was provided with this information he failed to impeach the credibility of Officer Rivera by eliciting testimony from Petitioner's father regarding (him) and Officer Rivera.
The petitioner also points to the testimony of petitioner's mother Dora Carr presented at the habeas trial to the effect that Rivera "had been a guest in the Vidro home on several occasions and that he had more than likely met the petitioner while in the family home."
First as to the factual claim — on two occasions Officer Rivera during cross-examination by defense counsel at trial said he had not met the petitioner Sadi Vidro before the night of October 22, 1999. At the hearing on the petition the petitioner said Rivera and his father were "personally acquainted." When he was asked if he himself and Rivera were personally acquainted the petitioner said "Not very well. I wouldn't say like I knew him personally." When asked if he had ever met Officer Rivera before he said "Probably once" but he said Rivera had contact with his father "more than once."
After reading and rereading the trial transcript I could find nothing to indicate defense counsel or the State asked Rivera if he knew the petitioner's father Sadi Vidro, Sr.
Given the foregoing, it is clear to the court at least that no claim of deficient performance or the requisite prejudice can be made out under Strickland.
As to prior acquaintance with the father, the court can only speculate as to how the petitioner claims pursuit of such a line of inquiry through impeachment or independent witnesses would have benefitted the defense. The father was not present at the scene of any alleged contact between Rivera and his son and was not shown to have any knowledge of the nature and circumstances of what encounters Officers Rivera and Young had with his son on the evening of October 22, 1999. Dora Carr testified Vidro Sr., plays the guitar and his "association" with Rivera was because of Mr. Vidro's (the father) involvement with music. But there has been nothing offered by the petitioner in these habeas proceedings to indicate that for some reason Rivera might have developed, for example, any bias or animus against Vidro, Sr., or his family because of this prior "association" with Rivera. The petitioner has presented no evidence or argument in fact as to why as to this matter failure to pursue the association with the father was deficient or caused him prejudice. Even if Rivera had explicitly said he never met the father, any questioning or impeachment of him on this subject would have been irrelevant and collateral to any issue in the case. Thus, on the prejudice ground alone, the court cannot find that given the foregoing alleged deficiencies the result of the proceedings would have been different. Strickland 466 U.S. at page 688.
The evidence presented at the habeas hearing as to whether Officer Rivera previously met the petitioner is nebulous. The petitioner said he met Rivera "probably once" as noted and twice defense counsel asked Rivera if he had met or known Vidro prior to October 22, 1999 to which he responded in the negative.
Attempts to impeach Officer Rivera on this subject or present evidence contradicting him would have been highly risky for the defense. If anything it would have buttressed Rivera's identification — what if on being pressed he said you know you're right the reason I was able to identify him was not only my contact with him on October 22nd, but now that I think of it, I knew him from beforehand. And if in fact Rivera had seen the petitioner before and remembered doing so why would he not have said so, to bolster his identification. There was certainly nothing untoward suggested about any of the prior contacts.
In any event, neither prong of the Strickland test has been met by this aspect of the petitioner's claim.
. . . . . . . ..
In conclusion the court therefore rejects all claims of deficient performance raised at the hearing and in the petitioner's brief and as noted concludes none of the allegations just discussed, if established as showing deficient performance, would have in reasonable probability led to a different result, Strickland, 466 U.S. at page 608.
As to all of the foregoing claims of deficient performance as they relate to the prejudice prong it would be well to briefly note that the evidence of guilt here was strong. An Officer identified the petitioner within days of the October 22nd incident, he secured his wallet at the scene and noted the picture on the license matched that of the suspect he was detaining. Rivera said the man identified himself as Sadi Vidro. Vidro's only defense at trial and developed at the habeas hearing was that he had lost his wallet shortly before the incident at a gas station. How that might have happened was not explained. Also, Vidro did not report his wallet stolen for several hours and did so conveniently after the incident in question. As the State pointed out in closing, if Vidro's story were to be accepted one would have to adopt a theory that the person who found his wallet, instead of just taking the cash and credit cards, simply put the wallet in his pocket and proceeded to a drug transaction. Also, his alibi was suspect in that it was provided by a girlfriend who was romantically involved with him at the time and who admits calling the Vidro home and having a lengthy conversation with Vidro's sister which the latter denies. Perhaps more to the point, even if the court's observations as to the strength of the State's case are exaggerated, none of the claimed deficiencies seriously attack the strength of that case or deflect the weaknesses of the defense case in any way that has been articulated in argument or by the introduction of evidence at the habeas hearing.
III
The petitioner also claims his due process rights were violated "when he was sentenced to two punishments for the same offense despite the prohibition by the U.S. Constitution, against double jeopardy."
The petitioner was found guilty and sentenced under § 21a-278(b) and § 21a-278a(b). He received 15 years for possession with intent to sell under § 21a-278(b) and three years consecutive to that for possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a(b). The latter statute states that any person who violates § 21a-278 by possessing with intent to sell any controlled substance within 1500 feet of a public or private elementary or secondary school; a public housing project or a licensed daycare center "shall be imprisoned for a term of three years, which shall not be suspended and which shall be in addition and consecutive to any term of imprisonment imposed for a violation of section . . . 21a-278." Under subsection (b) of § 21a-278 a person convicted "shall be imprisoned not less than five years nor more than twenty years" subsequent offenses resulting in conviction "shall be for no less than no more than twenty five years."
This violates the petitioner's rights it is claimed; "The basis for the arrest and conviction on these crimes was the allegation that on one specific date and at one specific time on that date, the petitioner was on the premises of a public housing facility with narcotics on his person and intending to sell narcotics at that site. Both convictions arose from this single act." The petitioner received a sentence for a violation of "two distinct statutes" and the sentences were consecutive despite the fact that "both violations occurred during the commission of only one offense or act." And it must be said that the petitioner is correct in asserting that § 21a-278a(b) is not simply a sentence enhancement statute relative to § 21a-278. Section 21a-278a(b) defines a separate crime. See State v. Barber, 64 Conn.App. 654, 675 (2001) citing State v. Derby, 235 Conn. 477 (1994).
For his argument, the petitioner relies in part on its interpretation of State v. Padua, 273 Conn. 138 (2005). The court found that separate sentences for conspiracy with intent to sell marijuana and conspiracy to sell within 1500 feet of a public housing project violated the defendant's "right against double jeopardy under the federal constitution's fifth amendment, id., pp. 172, 173. The Padua court really relied on the reasoning of State v. Howard, 221 Conn. 447 (1992) to reach this result and quoted the following controlling language from that case:" Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute . . . For such a violation, only the single penalty prescribed by the statute can be imposed." Id., at page 173. Howard in turn quoted from Braverman v. U.S., 317 U.S. 49, 53-54 (1942).
The petitioner argues that the same result as reached in Padua should be reached here even though in Padua "the statutory violations centered around the crime of conspiracy." In Padua there was one agreement to sell marijuana, the conspirators were arrested in a single day at a single time while furthering the conspiracy by certain activities. Because the latter occurred in a housing project they violated two statutes but "there was only one occurrence in furtherance of the agreement" therefore, only one punishment could be received. Here too, the petitioner was apprehended for "engaging in a single at on one particular day at a particular time. By engaging in this act he violated two statutes each carrying a separate penalty." Thus Padua, applies say the petitioner.
The court agrees, however, with the State's reply to the petitioner's reliance on Padua. In Padua the analysis revolved around an interpretation of the law of conspiracy for double jeopardy purposes. It did not deal with the separate double jeopardy question involved where there are substantive convictions for two separate statutes and the constitutional claim is made in that context. Also as the State points out, in Padua itself there were also two convictions for substantive crimes of possession with intent to sell marijuana § 21a-277(b) and possession within intent to sell marijuana within 1500 feet of a housing project § 21a-278a(b) — the same three-year consecutive sentence language in the latter statute applies where the criminal activity involves a violation of § 21a-277.
But despite a rejection of the reference to Padua as controlling, this does not mean a double jeopardy argument cannot be made when there are convictions for two separate substantive crimes. The question remains as to whether under the analysis in Blockburger v. United States, 284 U.S. 299 (1932) § 21a-278 and § 21-277a(b) are the same offense given the circumstances of this case. If they are, double jeopardy would bar imposition of consecutive sentences. In Blockburger the court said: "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determined whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not, id., page 304. The application of Blockburger has always been a difficult task for at least this writer.
Thus, for example in State v. Morin, 180 Conn. 599, 601 (1980) the court concluded that first degree robbery and first degree burglary were lesser included offenses of the felony murder charge. In State v. Greco, 216 Conn. 282, 292 (1990) the court said in Morin, the court only was addressing whether the defendant was entitled to an instruction on a lesser included offense opposed to applying the Blockburger test. However, the Greco court went on to say: "Since under State v. Morin, supra 602, there are no elements of first degree robbery and first degree burglary which are not also elements of felony murder when the felony murder count alleges 'robbery and burglary' as the predicate offenses, these offenses constitute 'the same offense' as the felony murder charge under the Blockburger test. But Blockburger itself did not involve a greater-lesser offense scenario or situation. There a defendant was convicted under the Narcotic Act of selling drugs not in pursuance of a written order (Section 1) whereas under Section 2 the defendant was convicted of selling drugs not in pursuance of a written order. The court said "each of the offenses requires proof of a different element," id., p. 304. Then the court set forth its well known rule for determining if the offenses were the same which has been quoted above. Then interestingly the court in Blockburger said "Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed," id. p. 304. But even though in Morin and Greco robbery and burglary were predicate offenses to the felony murder, felony murder certainly required a different or added element — some poor victim had to die. What really may be involved in applying a Blockburger double jeopardy analysis to a lesser-greater offense situation where the lesser offense does not require proof of an element not needed to commit the greater offense is the notion that it would be completely unfair to sentence someone for the greater offense and separately and additionally for the lesser offense when you could not commit the former without doing the latter — you would be sentenced twice for the same thing.
And that ultimately is what the Blockburger test is all about — it sought to make sure that someone not be given multiple time under two separate statutes for doing the same act under each statute.
Here it can be argued that the Blockburger analysis need not even be engaged because the legislature specifically took steps to avoid double punishment for the same criminal act. In other words, upon conviction for § 21a-278 the minimum and maximum criminal penalties are set forth. Section 21a-278 and § 21a-278a(b) must be then read together because by their nature they are joined together in the same trial. And § 21a-278a(b) in effect tells the sentencing judge you will impose a sentence according to the guidelines set forth in § 21a-278 and will receive a sentence for that crime. But it then says in addition to any sentence the defendant received under the predicate statute (§ 21a-278) he or she will get another three years for doing that possessing with intent within 1500 feet of a housing project or school. In other words, under the statutory scheme a defendant is not being given added time for engaging in possession qua possession — he or she gets an added three years for committing the act within 1500 feet of certain facilities.
But let us assume the traditional Blockburger analysis applies. It can be said that a predicate to conviction under § CT Page 4350 21a-278a(b) is conviction under § 21a-278 and that makes them the "same offense," (see Greco). That would not end the double jeopardy analysis as State v. Greco, made clear at 216 Conn. pp. 292-93. The court relied on Garrett v. U.S., 471 U.S. 773 (1985), Missouri v. Hunter, 459 U.S. 359 (1983), and Ohio v. Johnson, 467 U.S. 493 (1984) and when quoting from those cases Greco said that although in the case before it robbery and burglary were "the same offense" as the felony murder which was predicated on them:
The application of the Blockburger test, however, does not end our analysis of the double jeopardy issue. [T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.
. . . . . . . . .
Double jeopardy protection against cumulative punishments is only "designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature . . . Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial . . . The Blockburger test is a 'rule of statutory construction,' and because is serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent . . . The language, structure and legislative history of a statute can provide evidence of this intent. Garrett v. United States, supra, 779. Because we conclude that the legislature clearly intended multiple punishments for felony murder and the predicate offenses of robbery and burglary, the maximum possible prison sentence faced by the defendant was one hundred years and thus, the defendant has no grounds for his claim that the trial court should have allowed the withdrawal of his guilty plea."
Thus, even if these two statutes here are considered to be the "same offense" and a Blockburger analysis is appropriate, it is clear that the legislature intended an additional sentence should be imposed where the conditions of § 21a-278a(b) have been met and there has been a predicate conviction for § 21a-278. The court does not accept the double jeopardy argument made by the petitioner.
The State also points out that the defendant may be defaulted from raising this double jeopardy claim because he failed to file a motion to correct the sentence (PB § 43-22) or to raise the matter on direct appeal. Cobham v. Commissioner of Correction, 258 Conn. 30, 38 (2001).
The petitioner's request for habeas relief is therefore denied.