Williams
v.
Warden

Connecticut Superior Court Judicial District of Tolland at RockvilleOct 13, 2006
2006 Ct. Sup. 18895 (Conn. Super. Ct. 2006)

No. TSR CV05 4000298-S

October 13, 2006


MEMORANDUM OF DECISION


PATRICIA A. SWORDS, JUDGE.

On January 31, 2005, the petitioner, Daniel Williams, filed a pro se petition for a writ of habeas corpus, which was thereafter amended on July 31, 2006. The amended petition asserts a single claim, namely that petitioner's guilty pleas were not knowing, not intelligent and involuntary due to ineffective assistance of trial defense counsel. Respondent's return denies both the material allegations and that petitioner is entitled to habeas corpus relief.

The matter came before the court on September 28, 2006 for a trial on the merits. Witnesses included petitioner and Attorney Damian Tucker. The court finds Tucker to be highly credible and petitioner to be generally not credible. The court has reviewed and considered the testimony and the exhibits, petitioner's memorandum of law and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.

Respondent did not file a memorandum of law.

FINDINGS OF FACT

Petitioner was the defendant in five criminal cases pending in the Superior Court — G.A. #17 (Bristol cases). In docket number CR04-0021782-S, he was charged with interfering with an emergency call and breach of peace in the second degree; in docket number CR04-22935-S, with breach of peace in the second degree, assault in the third degree, unlawful restraint in the second degree, interfering with an emergency call, threatening and violation of a protective order; in docket number CR04-21886-S, with criminal possession of a weapon; and in two additional files, with, inter alia, criminal violation of a restraining order. At the same time petitioner was the defendant in a violation of probation case pending in the judicial district of Litchfield.

No evidence was adduced as to the docket numbers or the names of all of the offenses charged in the informations.

CR02-0109510-S.

At all relevant times, petitioner was represented on all six of his pending cases by Attorney Damian Tucker. Tucker has been a member of the bars of the states of New York, West Virginia and Connecticut for more than seven years. For the past five years, Tucker has been employed as an assistant public defender in the state of Connecticut. Tucker has represented defendants in over one thousand criminal cases.

Prior to May 2004, petitioner posted appearance bonds in at least two of the Bristol cases. Upon petitioner's arrest in May 2004, however, for, inter alia, breach of peace in the second degree, the court set bond at $75,000.00 with surety and petitioner was unable to post this bond. Thus after May 14, 2004, petitioner remained incarcerated throughout the pendency of the six cases.

On May 28, 2004, the Litchfield public defender's office was appointed to represent petitioner in the violation of probation case. As a result on June 29, 2004, Tucker met with petitioner in the Litchfield courthouse lockup. Although Tucker had not yet been appointed on petitioner's Bristol cases, he was aware that petitioner had several cases pending in G.A. #17. Tucker testified that at their meeting, petitioner's overriding concern was that he be released from incarceration as soon as possible. Tucker was aware that alcohol and drug abuse figured prominently in almost all of petitioner's cases. Thus Tucker's first course of action was to attempt to find an in-patient program that would accept petitioner. Tucker hoped that if such a program was available, the court would consider continuing petitioner on probation.

Concurrent with Tucker's efforts to find a treatment program for petitioner, Tucker obtained and reviewed copies of the police reports and witnesses' statements for each of petitioner's pending cases in Litchfield and Bristol. Tucker allowed petitioner to read all of these reports and statements, but, in accordance with the state's attorney's discovery policy, did not provide petitioner with his own copies.

In 2004, the state's discovery policy consisted of allowing defense counsel to have a copy of all police reports and witnesses' statements contained in the state's files on condition that a defendant not be given copies of these documents.

On August 31, 2004, a judicial pretrial on the violation of probation case was held in Litchfield before Brunetti, J. At the pretrial, Tucker requested that the court continue petitioner on probation with a condition that petitioner enter an inpatient drug treatment program. Judge Brunetti indicated that he was not amenable to such a suggestion and offered petitioner a sentence of thirty months to serve. The court further conditioned this offer on its acceptance forthwith or the immediate scheduling of a probation violation hearing.

Accordingly on August 31, 2004, Tucker discussed the court's offer with petitioner. Again at that time as on prior occasions, Tucker reviewed with petitioner at length the state's evidence as well as the elements of the offense and the standard of proof at a violation hearing.

The state's evidence as adduced from the arrest warrant affidavit demonstrated that petitioner violated his probation in several different ways including: two positive urine tests for marijuana and cocaine; his possession of and arrest for possession of firearms by a convicted felon; his arrest in Bristol for domestic violence offenses; his failure to submit to inpatient substance abuse treatment; his failure to provide probation with a copy of his prescriptions for controlled medication; and his failure to provide proof of anger management counseling. While Tucker believed that petitioner could defend against most of these allegations, he also believed that petitioner had no defense to the firearms possession and positive marijuana drug test. Thus Tucker believed that if petitioner took his case to a hearing, he likely would have been convicted. Further, Tucker believed that if convicted after a hearing, petitioner would likely receive the maximum penalty of six years to serve.

At the habeas trial, petitioner admitted that on January 23, 2004, he was in fact the owner of and in possession of several firearms and that, at that time, he was a convicted felon. Petitioner, however, claimed in mitigation that prior to his arrest, he was not aware that a convicted felon could not possess a firearm.
Lack of knowledge of the law is, of course, no defense to a criminal charge. Moreover, on two occasions while on probation petitioner signed a form entitled "conditions of probation" which expressly informed him that he was prohibited from being in possession of any firearms during the period of his probation.

Tucker made no recommendation to petitioner as to whether to accept the court's offer. Rather Tucker outlined the pros and cons of the state's case and the court's offer, and allowed petitioner to make his own decision whether to admit to the violation of probation and accept the court's indicated sentence.

Thereafter on August 31, 2004, petitioner entered a plea admitting to being in violation of probation. The plea was canvassed by the court (Brunetti, J.), accepted by the court and the indicated sentence of thirty months was imposed. During the plea canvass, the court asked petitioner if he had had enough time to speak to his attorney, if he was satisfied with his attorney's advice and if he was voluntarily admitting to the violation of probation. To each question, petitioner responded in the affirmative. The court also went over the state's evidence against petitioner, the maximum penalty petitioner could have faced and the constitutional rights that petitioner was waiving by admitting to the violation. In each instance, petitioner responded that he understood the court's advisement.

Pursuant to statute, once petitioner was sentenced in Litchfield, he no longer continued to accrue pretrial credit on his Bristol cases. Thus for every day that petitioner's Bristol cases remained unresolved, petitioner was serving "dead time" toward any sentence which may have been imposed in Bristol. As a result, Tucker made petitioner aware of this issue.

On November 1, 2004, petitioner returned to Bristol and pleaded guilty under the Alford doctrine to breach of peace in the second degree in CR04-0021782; to assault in the third degree and threatening in docket number CR04-22935; and to violation of a restraining order in a third file. The court (Cofield, J.) imposed a total effective sentence of two years to serve concurrent to the Litchfield sentence, Petitioner's other two pending files including the criminal possession of a firearm were nolled by the state. The net effect of this concurrent sentence was no extension of petitioner's incarceration release date because the Bristol sentence was set to expire before the Litchfield sentence.

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, CT Page 18902 27 L.Ed.2d 162 (1970).

At the habeas trial, petitioner did not challenge his conviction for violation of a restraining order or the state's nolle prosequi of his other two Bristol files. Instead petitioner focused on his convictions in CR-0400021782-S (the January incident) and CR04-22935-S (the May incident). Both of those files involved incidents of domestic violence in which the complaining witness was petitioner's wife. At trial petitioner claimed that Tucker did not properly investigate those incidents or go over the state's evidence with him, and that if those matters had been properly investigated, he would have been acquitted of the January incident and would have been convicted of a lesser offense in the May incident.

As to his investigation of the January incident, Tucker spoke with the complaining witness and the sole eyewitness to the incident. In their discussions with Tucker both witnesses stood by the version of the events which they had related to the arresting officer. Tucker was also aware that in a second count in the January information, petitioner was charged with interfering with an emergency call. That portion of the incident was witnessed by a police officer and a police dispatcher, who Tucker believed would be strong witnesses for the state.

At the habeas trial, petitioner admitted that he never asked Tucker to investigate the January incident and never provided Tucker with the names of any potential defense witnesses . . . According to Tucker, petitioner's version of the events differed markedly from that of the complaining witness. To get petitioner's version before the jury would, however, have necessitated that petitioner testify. In the final analysis, therefore, petitioner's acquittal in the January incident rose or fell on petitioner's credibility at trial and which version of the incident the jury chose to believe.

Although Tucker did not testify to this, petitioner's credibility could have been impeached at trial with the fact that petitioner had been drinking heavily before the incident, that he had a history of prior abuse of the complaining witness and that he was a convicted felon.

Aside from his review of the police reports and witnesses' statements, Tucker did net further investigate the incident charged in the May incident. Again in this case, the complaining witness was petitioner's wife and there was another eyewitness to the offenses. At the habeas trial, petitioner admitted that in this incident, he had taken a phone from his wife's hand while she was calling the police and thereafter smashed the phone on the floor. Additionally petitioner admitted that he had pushed his wife onto a couch, had fallen on top of her and that a struggle ensued. As a result, petitioner believes that at trial, he would have been convicted of some offense, but not the assault in the third degree to which he pleaded guilty.

At the habeas trial, petitioner testified to varying versions of whether Tucker had gone over the state's evidence with him prior to plea. At times during the trial, he claims he was never shown the police reports and that Tucker never reviewed the police reports with him; at other times, he admitted that he saw the reports for "thirty seconds"; and at still other times he claimed that Tucker read portions of the reports to him while he informed Tucker of the inaccuracies contained therein. Significantly in contrast to his testimony at the habeas trial, when petitioner pleaded guilty to these cases at G.A. #17, he informed the court that his attorney had gone over the state's evidence with him, that he had no further questions for his attorney, that he was satisfied with his attorney's advice, that he did not want to go to trial because he believed that the state's evidence was substantial and that he would probably be convicted after trial. The court, therefore, finds not credible petitioner's claim that his attorney did not review the state's evidence with petitioner prior to his pleas of guilty. CT Page 18900

DISCUSSION

Petitioner has alleged that his guilty pleas were not knowing, intelligent and voluntary due to ineffective assistance of counsel. More specifically, petitioner identifies five specific ways in which Tucker allegedly was deficient, four of which are failures to somehow properly investigate. These alleged failures are that Tucker did not properly investigate: the circumstances of the January 2004 and May 2, 2004 incidents; the photographs of the petitioner's wife related to the May 2, 2004 incident; the circumstances of the 2001 Bantam cases. Additionally, petitioner claims that Tucker failed to adequately review with petitioner and advise him regarding the state's evidence in both the Bristol cases and the Litchfield violation of probation case.

"To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must establish both "(1) deficient performance, and (2) actual prejudice . . . Thus, he must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, [ 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court applied the two-pronged test set forth in Strickland to guilty plea negotiations, focusing on the application of the second prong requiring prejudice to be shown. The second, or `prejudice' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant 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." (Internal citations and quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 205-06, cert. denied, 270 Conn. 914 (2004).

Applying the Strickland/Hill standard to the instant matter, the credible evidence presented to this court stands in stark contrast to petitioner's claim that Tucker somehow rendered deficient performance. The evidence shows that petitioner's focus in resolving the criminal matters was the amount of time he would have to serve until discharged. Tucker investigated the matters, discussed them thoroughly with petitioner, and advised him regarding his options. Tucker thereby effectuated a process that culminated in the petitioner himself choosing to proceed with the sentencings.

Petitioner has presented no evidence to substantiate his claims that the investigations were somehow inadequate. This court is hard-pressed to discern anything deficient in Tucker's representation. Petitioner has, therefore, neither presented evidence showing deficient performance nor has he affirmatively demonstrated via concrete and credible evidence that he would not have pleaded guilty and proceeded to trial.

Accordingly, the petition for a writ of habeas corpus is denied. Petitioner's counsel is ordered to prepare and file a judgment file within thirty days.