Opinion
No. CV 02 0470477
August 19, 2008
MEMORANDUM OF DECISION RE HABEAS PETITION
Petitioner Robert Ward seeks from this court the issuance of a Writ of Habeas Corpus to address what he alleges are improper convictions resultant from ineffective assistance of counsel in two cases, denominated in the petition as the burglary case and the firearms case.
The Burglary Case CR 00-0160565
Robert Ward's Petition attests that he was charged with Burglary in the Second Degree (Conn. Gen. Stat. § 53a-102) and Threatening (Conn. Gen. Stat. § 53a-62(a)(1)). After a jury trial he was found guilty of the burglary charge, but not guilty of the threatening charge. He was sentenced to ten (10) years imprisonment, execution suspended after three (3) years, and five (5) years probation.
Attorney David Abbamonte, an Assistant Public Defender, represented Robert Ward in the trial phase of the burglary case. In the appeal of this case to the Appellate Court he was represented by Attorney Alice Osedach-Powers. The conviction was affirmed. State v. Ward, 76 Conn.App 780 (2003), and certification to the Supreme Court denied. State v. Ward, 264 Conn. 918 (2003).
Alleged Ineffective Assistance of Trial Counsel
The Petitioner alleges that David Abbamonte, his trial counsel, provided ineffective assistance of counsel in that he
did not communicate with Mr. Ward concerning the trial strategy which Mr. Abbamonte was intending to pursue . . . Mr. Abbamonte offered no meaningful strategy . . . He gave Mr. Ward no opportunity to offer any input into the strategy.
Petitioner's Brief p. 11.
In his brief Robert Ward notes that Attorney David Abbamonte passed away between the interval of representing him and the filing of this habeas petition. He states in his brief that although a decision of the Statewide Grievance Committee found that Attorney David Abbamonte did not violate the professional rules of conduct in his representation of Robert Ward, it was critical of the level of Attorney David Abbamonte's communication with him regarding the criminal charges.
The brief also makes reference to the transcript of Robert Ward's testimony before this Court on this petition on July 17, 2007, an excerpt of which appears below.
Q. Is there anything else that you claim in the burglary case that Mr. Abbamonte should have done, or should not have done as a reasonably competent criminal defense attorney?
A. At least sat down and communicated with me about what was — what was going to be his strategy as far as defending me up to that point
Q. What communication — what did he say to you concerning what his strategy was?
A. Pretty much nothing.
Q. What opportunity to — to — did he give to you to have input into the trial strategy decision?
A. Nothing
Q. If he had given you that opportunity — an opportunity, what would you have told him?
A. I would have told him, you know, the — that — at least let me have a chance to get up on the stand and testify as — so — you know — what happened — my opinion as to what happened or —
Q. So, you would have asked him to testify?
A. Yes.
Q. Did he inform you of your right to testify on your own behalf?
A. Not that I can recall. Not that I remember
[July 17, 2007 Transcript, p. 9.]
The transcript also reveals that the Court asked the petitioner whether the trial judge advised him of his right to testify. That question and his answer appear below.
THE COURT: Did the lawyer — the Judge, rather, inform you of your right to testify during the trial?
THE WITNESS: I'm not sure, your Honor. I think — I'm not positive to be honest. I don't recall.
(July 17, 2007 Transcript pp. 9-10).
As is evident from pages 9-10 of the July 17, 2007 transcript the petitioner in his own words stated that he did not recall whether or not Attorney Abbamonte or the Judge advised him of his right to testify. Clearly these are not statement which confirm his claim that he was not so advised.
It is evident from a review of the transcript of the Statewide Grievance Committee hearing that the late Attorney David Abbamonte was experienced in the handling of criminal cases. As pointed out in the respondent's Post-Trial Brief, Attorney Abbamonte had been a full-time public defender in the Superior Court at Bridgeport since April of 1993 (transcript, p. 21); he had handled 50 or 60 trials to completion during his career (transcript, p. 22); he filed the appropriate pre-trial motions (transcript, pp. 23-24); he had pretrial discussions with the trial judge and prosecutor (transcript, pp 25-26); he obtained a plea offer from the State (transcript, p. 26); he explained the charges to the petitioner on April 2 and April 24, 2001 (transcript p. 43); and he provided discovery to the petitioner (transcript, pp. 27-28). The foregoing belie a claim of ineffectiveness in this regard.
Concerning the petitioner's claims that Attorney Abbamonte did not consult with him regarding trial strategy, and did not give him an opportunity to testify at trial, the court observed the petitioner closely during his testimony in this regard, and finds his testimony not to be credible. The court's assessment of his testimony is bolstered by the petitioner's abundant knowledge of the criminal justice system as evident from his numerous previous convictions, namely: false statement; forgery; larceny in the second degree; and robbery (transcript, pp. 17-18) — all of which bespeak of dishonesty.
Petitioner Robert Ward also criticizes David Abbamonte for failing "to cross-examine Rosalee Blake adequately concerning her whereabouts at the time of the offense," as well as for failing "to cross-examine Willie Blake adequately concerning his motive for accusing [him] and concerning prior statements inconsistent with his trial testimony." The Court finds these claims of insufficient merit.
The Firearm Case CR 00-0165506
Robert Ward was charged and convicted of Criminal Possession of a Firearm in violation of Conn. Gen. Stat. Sec. 53a-217a; Possession of a Pistol without a Permit in violation of Coon. Gen. Stat. Sec. 29-35a; Trespass in the Third Degree in violation of Conn. Gen. Stat. Sec. 53a-109(a)(1); Criminal Mischief in violation of Conn. Gen. Stat. Sec. 53a-117(a)(1)(A); and A Persistent Dangerous Felony Offender in violation of Conn. Gen. Stat. Sec. 53A-40. The conviction was affirmed, State v. Ward, 83 Conn.App. 377 (2004), and certification denied. State v. Ward, 271 Conn. 902 (2004). He received a total effective sentence of twelve years to serve.
From the evidence presented, including the facts set out in the court finds that Robert Ward has not proved that the late David Abbamonte did not adequately represent him in the firearms case in that he 1) did not adequately communicate with him, 2) failed to inform him of a ten (10) year plea offer, 3) failed to produce evidence showing that he made an authorized entry to the apartment complex know as 25 Sanford Place, and 4) failed to object to the court finding that he was a persistent felony offender.
The Court finds that Attorney Abbamonte met with and advised Robert Ward of pre-trial negotiations, including the plea offer which he rejected. A ten-year plea offer was not made. The evidence presented sufficiently upholds the jury finding that Robert Ward did not have permission to be on the premises of 25 Sanford Street-an apartment complex known as a place of frequent drug activity. At the July 17, 2007 hearing on this petition Robert Ward admitted that he was a drug dealer when he was on the premises. (July 17, 2007 Transcript, pp. 32-33.)
The petitioner also claims in the Firearms Case that Attorney David Abbamonte "failed to object to the trial court finding that [he] was a persistent felony offender as a violation of [his] right to a jury trial." The defendant was charged in a Part B Information with being a Persistent Serious Felony Offender under Connecticut General Statutes Section 53a-40(c)), and elected a trial by the Court, Hauser, J., rather than a jury.
Upon Attorney David Abbamonte's motion he was permitted to withdraw his appearance and Judge Hauser appointed Attorney Timothy Aspinwall as Special Public Defender. Judge Hauser found Robert Ward guilty as charged. Any objection to the finding at the trial court level would not have changed the outcome. The Appellate Court affirmed the conviction.
Claimed Ineffectiveness of Appellate Counsel Waiver of Jury Trial as a Persistent Felony Offender — Golding Challenge
Petitioner Robert Ward asserts that his appellate counsel, Attorney Alice Osedach-Powers, in the Burglary Case and Attorney G. Douglas Nash in the Firearms Case were ineffective for failing to seek Golding, plain error or other review of the "court's violation of [his] United States and Connecticut Constitution right to a jury in finding itself that [he] was a persistent serious felony offender." (Second Amended Petition, p. 7.)
The transcript is sparse as it relates to whether the waiver of Robert Ward's right to a jury trial was knowingly and voluntarily accomplished. The text of the transcript is produced below.
MS. KELLEY: I think you have to make an election of not guilty or guilty and —
COURT: The defendant, again, if he's been advised outside of the hearing of the jury and the Court, has a right to a hearing by the Court or —
MR. ABBAMONTE: Well, I think we'll have a hearing, if we have to, before
the Court. We'll waive the jury on that.
(November 14, 2002 Transcript, p. 14).
In State v. Bell, 283 Conn. 748, 810 (2007) the Supreme Court ruled that a defendant has a right to have a jury make the finding as to whether he/she is a persistent felony offender under § 53a-40. However the Supreme Court also stated that "[o]f course, in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding." Id. at 810. (Emphasis added.)
The following quotation from State v. Marino, 190 Conn. 639 (1983) is instructive in resolving the jury-trial waiver issue:
[t]here is nothing before us to indicate that the defendant was not of ordinary intelligence and educational background and that the choice of court or jury was not fully discussed with him by his counsel. We cannot assume that in performing his duty of competent representation his counsel did not advise the defendant of the consequences of his choice . . .
Id., p. 640.
In light of the petitioner's long-standing previous experience with the criminal justice system this Court finds it strains credulity to accept the petitioner's invitation to find that he was unaware of his right to a jury trial on the charge of being a persistent felony offender, and that he unknowingly waived that right. As stated in State v. Cobb, 251 Conn. 285 (1999),
[m]oreover [t]he defendant was not a novice in the criminal justice system . . . (citations omitted) Nor can it fairly be said that the record presents a picture of a defendant bewildered by court processes strange and unfamiliar to him . . .
Id., p. 372.
This Court finds that the defendant's assertion that he was not advised of his right to a jury trial on the charge of being a persistent felony offender not to be credible. This Court further finds that inasmuch as the petitioner has not shown that a constitutional violation clearly exists and deprived him of a fair trial, the review under State v. Golding, 213 Conn. 233 (1989) was not required.
CT Page 13378
Requirement Under Strickland
In Bunkley v. Commissioner of Correction, 222 Conn. 444, 455 (1992), our Supreme Court reviewed the ruling in Strickland v. Washington, 466 U.S. 668. The Court stated in part the following:
In Strickland v. Washington, supra, 671, the United States Supreme Court "consider[ed] the proper standards for judging a criminal defendant's contention that the Constitution requires a conviction be set aside because counsel's assistance at the trial . . . was ineffective." In the context of a claim of ineffective assistance of trial counsel, the court held that such a contention "has two components. First, the defendant must 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 by the Sixth Amendment. Second, the defendant must show 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."
Id., 687.
Conclusion
For the foregoing reasons, the Court finds that Petitioner Robert Ward has not met his burden of proof as to either ground outlined in Strickland, supra. Accordingly, the petition for the Writ of Habeas Corpus is denied.