Opinion
No. CV00-0441690
August 29, 2005
MEMORANDUM OF DECISION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in a criminal case in the judicial district of New Haven. After a jury trial the petitioner was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), and one count of unlawful restraint in the third degree in violation of General Statutes § 53a-95(a). On May 7, 1999, the petitioner was sentenced by the court (Fracasse, J.) to a total effective sentence of twenty years in prison, execution suspended after twelve years, and ten years probation. The convictions were affirmed on direct appeal. State v. Walker, 67 Conn.App. 120, cert. denied, 259 Conn. 926 (2001). The petitioner remains in the custody of the respondent pursuant to said sentence. The petitioner was represented at trial by Attorney Jerome Rosenblum.
The petitioner, by counsel, filed a two-count amended petition for a writ of habeas corpus on February 15, 2005, and the respondent filed a return on April 4, 2005. This court conducted an evidentiary hearing on the petition on June 7, 2005. The witnesses were Assistant State's Attorney Robert O'Brien, who handled the criminal trial, the petitioner, and Mr. Rosenblum.
The Appellate Court opinion stated that the jury reasonably could have found the following facts:
On September 2, 1998, the victim bought and shared drugs with a female friend at the friend's apartment. The defendant, whom the victim had met once before, also was present. After all of the drugs were consumed, the victim's friend gave $20 to the defendant to purchase more drugs from a nearby dealer. The victim left the apartment with the defendant.
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Instead of returning to that apartment after buying drugs, the defendant and the victim went to the third floor attic of the home of the defendant's mother, where the defendant lived. The defendant and the victim entered the attic to use the drugs that they had purchased.
A short time later, the defendant and the victim heard her friend shouting from the street outside of the home. The defendant left the attic several times, supposedly to meet with her. When the defendant returned to the attic, he pulled out a knife, grabbed the victim's neck and told her that he would slit her throat if she made any noise. Still holding the knife against the victim's neck, the defendant proceeded to push the victim onto his bed and forced her to engage in sexual intercourse. The defendant then left the attic and locked the door behind him. When the defendant returned, he again wielded the knife, and forced the victim to perform fellatio and to have sexual intercourse with him. A few hours later, the defendant released the victim.
The defendant subsequently was arrested, and a jury trial ensued. During the trial, the victim testified that soon after the attack, she informed her boyfriend, Bradley Fullwood, that the defendant had forced her to perform fellatio. She admitted that she did not describe to her boyfriend all of the acts forced on her by the defendant. In the presentation of his defense, the defendant called as a witness his stepbrother, Joseph Duarte, Jr., who resided with the defendant. Duarte testified that some time after he saw the victim leave the home, a man, who identified himself only as the victim's boyfriend, visited the house to speak with the defendant.
State v. Walker, supra, 121-22.
The amended petition alleges that the petitioner's incarceration is illegal because the convictions were obtained in violation of his right to the effective assistance of counsel, as guaranteed by the sixth and fourteenth amendments to the United States CT Page 11768-in Constitution.
The petitioner is entitled to receive effective assistance of trial counsel.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "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).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d 864 CT Page 11768-io (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). `"What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under CT Page 11768-ip the circumstances, the challenged action `might be considered sound trial strategy . . .' [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
The first count of the amended petition alleges that in the criminal case the state made a plea offer, through Mr. Rosenblum, of ten years incarceration, suspended after five years, that Mr. Rosenblum failed to convey the plea offer to the petitioner, that if the petitioner had known of the plea offer there is a reasonable probability that he would have accepted it, and that Mr. Rosenblum was ineffective in failing to convey the plea offer to the petitioner.
The second count of the amended petition alleges that Mr. Rosenblum advised the petitioner not to testify at the criminal trial, that the petitioner, upon the advice of trial counsel, chose not to testify, that the advice not to testify was objectively unreasonable, and that there is a reasonable probability that, if trial counsel had not given the petitioner objectively unreasonable advice that he should not testify, the petitioner would have testified and the result of the criminal trial would have been different.
By way of relief the petitioner requests that this court either vacate the convictions and sentence, or vacate the sentence and order that the petitioner be sentenced to ten years incarceration, suspended after five years.
Assistant State's Attorney Robert O'Brien was the prosecutor in the criminal trial and was involved in the pretrial plea negotiations. He testified that on December 7, 1998, at a pretrial conference with Judge Roland Fasano and both attorneys, the state offered seven years CT Page 11768-iq incarceration and the court offered twelve years, suspended after six years, and ten years probation. The case was then continued to December 21, 1998 at which time it was placed on the trial list, and there were no further offers.
The petitioner testified that he was never informed by Mr. Rosenblum of any plea bargain offers by the state or by the court. Had he been told about an offer of twelve years incarceration, suspended after six years with ten years probation, he claims that he would have accepted it. He testified that this was his first criminal trial. At the time of the criminal trial he had previously been convicted of larceny in the second degree and burglary in the third degree, which are both felonies, and larceny in the fifth degree, which is a misdemeanor. Subsequent to the criminal trial he had pleaded guilty to murder.
In the criminal trial the defense offered the testimony of the petitioner's stepfather, stepbrother, and mother. The petitioner did not testify in the criminal trial. He claimed that before any of the defense witnesses testified, Mr. Rosenblum advised him that he didn't need to testify because the state's case was weak and circumstantial, and that he relied on his attorney's advice.
Mr. Rosenblum testified that he had been a member of the bar since 1960 and that he retired in 2000. He was a public defender for twenty-eight years prior to his retirement, serving for twenty years in a part-time capacity, and full-time doing Part A criminal work for his final eight years. He had handled hundreds of criminal cases. He represented the petitioner in his capacity as an assistant public defender. His notes indicated that at a pretrial conference on November 23, 1998 the offer by the state was seven years, and Judge Fasano offered ten years suspended after six years. He said he could be wrong on the date of the pretrial. Based on his previous dealings with Judge Fasano, it was his impression that if the petitioner was willing to enter a plea that he could probably get a sentence of ten years suspended after five years. The petitioner was in the cellblock in the basement, and the offer by the CT Page 11768-ir court and what Mr. Rosenblum felt he could get on a plea was conveyed immediately to the petitioner, who rejected the offer saying that he wanted a trial. Mr. Rosenblum also conveyed the offer and what he felt he could get for the petitioner on a plea on December 21, 1998, when the case was put on the trial list. The petitioner never indicated prior to the verdicts that he wished to accept the plea offer or to attempt further negotiations. The trial started in the latter part of February 1999. Mr. Rosenblum testified that after the verdicts the petitioner said something to the effect "I gambled and I guess I lost."
With respect to the allegations of the second count, the petitioner and Mr. Rosenblum testified that he recommended to the petitioner that he not testify, and that the petitioner relied on his advice and did not testify. The petitioner was aware that it was his decision not to testify, and he was so advised by Judge Fracasse. The petitioner testified that the advice not to testify was given before the three defense witnesses testified, while Mr. Rosenblum testified that it was given after all the evidence had been presented. Mr. Rosenblum testified that he advised the petitioner not to testify because of his prior criminal record and because he did not have confidence in the petitioner's ability to tell a coherent story. He also felt that the state's case was weak, that the defense evidence had created a substantial doubt about the victim's version of the events, that if the petitioner testified then he would become the focus of the case, and that he believed that the petitioner's testimony could hurt the case. Mr. Rosenblum explained all of his reasoning for the advice not to testify to the petitioner, and the petitioner agreed with him.
The first count alleges that Mr. Rosenblum was ineffective because he did not convey the pretrial plea bargain offers to the petitioner, a claim which is denied by Mr. Rosenblum. This claim raises a credibility issue as between Mr. Rosenblum and the petitioner. The court finds that Mr. Rosenblum was a credible witness and accepts his testimony. There was no evidence which would suggest any reason why an experienced criminal defense attorney would not convey pretrial offers to his CT Page 11768-is client, and petitioner's habeas counsel could not suggest any such reasons when asked by this court. The court also notes that the petitioner had pleaded guilty to crimes on at least three occasions prior to his criminal trial. The petitioner did not testify that the subject of possible plea negotiations was ever discussed. It is not believable that the petitioner, as experienced as he was in the workings of the criminal justice system, would not have inquired of his attorney about any possible plea negotiations.
The court finds that the petitioner has failed to prove that Mr. Rosenblum did not convey the pretrial plea offers to the petitioner, and therefore he has failed to prove that Mr. Rosenblum's representation was deficient as alleged in the first count.
The second count claims that Mr. Rosenblum was ineffective because his advice to the petitioner not to testify was "objectively unreasonable." Mr. Rosenblum testified in detail concerning the reasons why he advised the petitioner not to testify. This claim does not involve a situation where trial counsel failed to recognize an issue or failed to take reasonable steps to protect the interests of his client. Mr. Rosenblum, a well qualified and experienced criminal defense attorney, fully recognized the significance of the defendant not testifying. He discussed his reasoning with his client, who agreed with the decision, and he made a trial strategy decision. As the Appellate Courts have held numerous times "it is all too tempting for a defendant to second guess trial counsel's assistance after conviction . . ." Jeffrey, supra 219. There is a strong presumption that trial counsel's action in this case, advising his client not to testify, is considered to be sound trial strategy, and the petitioner has failed to rebut that presumption. The court finds that the petitioner has failed to prove that Mr. Rosenblum was deficient as alleged in the second count.
In addition to proving that the advice given by Mr. Rosenblum was deficient, which the court has found he failed to prove, the petitioner must also prove that he was prejudiced by his attorney's performance. "This requires showing that counsel's errors were so serious CT Page 11768-it as to deprive the defendant of a fair trial, a trial whose result is reliable" Strickland v. Washington, supra, 687. In this case this means that the petitioner must prove that if Mr. Rosenblum had not advised him not to testify, that he would have testified, and that there is a reasonable probability that the jury would then have had a reasonable doubt respecting guilt. After considering the entire record offered in this habeas trial, the court finds that the petitioner has failed to prove that he was prejudiced as a result of the advice given by his trial counsel.
For the reasons above stated, the amended petition is dismissed.
William L. Hadden, Jr.
Judge Trial Referee CT Page 11768-iu