SAUNDERS v. WARDEN, No. CV 04 00045006 S (Oct. 1, 2007)

ANGELO L. DOS SANTOS, JUDGE.

The petitioner, Mario Saunders, has brought this amended habeas corpus petition alleging that his incarceration is illegal because his trial counsel was ineffective and that he was prejudiced thereby. Thus, the petitioner alleges that his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth amendment to the United States constitution. Presently, the petitioner is in the custody of the Commissioner of Corrections in the State of Connecticut.

The petitioner did not allege a violation under the Connecticut constitution.

The matter came before the court for a trial on the merits on April 2, 2007 and May 29, 2007. Witnesses included the petitioner's trial counsel Jayne Kennedy and petitioner's mother, Maryann Saunders. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.

This court rendered judgment on September 26, 2007, indicating at that time that it would issue a memorandum of decision detailing the factual findings and legal bases for denying the petition subsequent to rendering judgment. See Lauer v. Zoning Commission, 246 Conn. 251, 261 (1998).

FINDINGS OF FACT

The petitioner was the defendant in State v. Mario Saunders, in the Judicial District of Waterbury on five separate files: Docket Number CR 96-252186, where he pleaded guilty to two counts of aggravated sexual assault in the first degree, in violation of general statutes section 53a-70(a)(1), and one count of kidnapping in the first degree in violation of general statutes section 53a-92(a)(2)(a), where his maximum exposure on these charges was sixty-five years in prison; Docket Number 96-252187, he pleaded guilty to one count of aggravated sexual assault in the first degree in violation of general statutes section 53a-70(a)(1), one count of kidnapping in the first degree in violation of general statutes section 53a-92(a)(2)(a) and one count of attempted robbery in the first degree in violation of general statutes section 53a-134(a)(3), where his maximum exposure on these charges was sixty-five years in prison; Docket Number CR96-253056, he pleaded guilty to one count of sexual assault in the first degree in violation of general statutes section 53a-70(a)(1), where his maximum exposure was CT Page 16311 twenty years in prison; Docket Number CR96-253742, he pleaded guilty to one count of sexual assault in the first degree in violation of general statutes section 53a-70(a)(1), where his maximum exposure was twenty years in prison; and Docket Number CR96-258788, he pleaded guilty to one count of sexual assault in the first degree in violation of general statutes section 53a-70(a)(1), where his maximum exposure was twenty years in prison. The petitioner's guilty pleas were entered under the Alford doctrine.

"Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the states evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless." (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 3 n. 2 CT Page 16317 (2006)." Poulin v. Commissioner of Correction, 103 Conn.App. 303, 306 n. 4 (2007).

The state had offered a consolidated plea bargain of forty years in prison. At the time that the petitioner entered his guilty pleas, the sentencing court, Damiani, J., told the petitioner that his total exposure, based on the counts pleaded to, was one hundred and ninety years and a fine of up to $145,000. Judge Damiani also informed petitioner the mandatory total sentence based on the pleas was thirty-eight years, but that thirty years could be suspended, leaving the mandatory minimum of eight years. Judge Damiani indicated he would sentence the petitioner to forty years suspended after service of nineteen years in prison followed by twenty years of probation. The petitioner was sentenced accordingly.

At the time the petitioner entered his guilty pleas, the state's attorney recited the factual basis for each of the cases, and which need not be restated for purposes of the instant matter. Judge Damiani thoroughly canvassed petitioner to ensure the pleas were knowing, voluntary, intelligent and with the advice of counsel.

The restatement of facts in support of the convictions is located at pages 10-16 of the plea transcript. Petitioner's Exhibit 7 (Transcript, May 9, 1997).

At the time petitioner pleaded guilty he was only represented by Attorney Kennedy. Petitioner had, however, sought to retain Attorney James Swaine. Swaine was present at the time petitioner entered his pleas and petitioner had the opportunity to discuss the matters with both Kennedy and Swaine prior to pleading guilty. See Petitioner's Exhibit 5. Consequently, it bears emphasis that the instant claims are regarding Kennedy's representation.

Additional facts will be discussed as necessary.

DISCUSSION

"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and Article First, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts . . .

"Although [the] decision [to plead guilty or proceed to trial] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies CT Page 16312 heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a 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 . . .

"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .

"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . 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 . . .

"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . .

"In Hill v. Lockhart, [ 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n 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 . . . 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 CT Page 16313 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).

"It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, cert. denied, 273 Conn. 922 (2005).

The petitioner claims that Kennedy's representation was not within the range of competence displayed by lawyers with ordinary training in criminal law. More specifically, petitioner makes the following multitude of allegations that Kennedy failed to: 1) inform petitioner of the elements of the original charges or what the state needed to prove to find petitioner guilty of those charges at trial; 2) provide petitioner with copies of the defense file for his review, and to assist in his defense; 3) adequately advise petitioner concerning the consequences of his pleas; 4) sufficiently investigate the collection of the evidence subject to D.N.A. testing; 5) ensure that petitioner's plea was knowing, intelligent and voluntary; 6) conduct sufficient investigation into the legal issues in petitioner's case; 7) conduct sufficient investigation into the potential defenses to the prosecution's case including the defense that petitioner was misidentified; 8) conduct sufficient investigation into the elements of the prosecution's proof; and 9) conduct sufficient investigation into the witnesses available to support potential defenses.

The court is confident `multitude' is an appropriate categorization of nine claims. Recently, in Grimm v. Grimm, 276 Conn. 377, 381 n. 4 (2005), the Supreme Court referred to the five claims raised on appeal as being a `plethora.'

The court will group several of these claims together for purposes of the following discussion. Bases 3) and 5) will be addressed together. Also, because they pertain to Kennedy's investigative efforts, 4), 6), 7), 8) and 9) will be addressed together.

The first claim is that Kennedy failed to inform petitioner of the elements of the original charges or what the state needed to prove to find petitioner guilty of those charges at trial. At the habeas trial, Kennedy testified that she reviewed with petitioner the maximum and minimum sentences, as well as the elements of the offenses. The court finds that testimony credible. Additionally, Judge Damiani asked petitioner if he had the opportunity to discuss the criminal matters with Kennedy and Swaine. Petitioner answered "Yes." Petitioner also answered in the affirmative when asked whether, after talking with Kennedy, Swain and his mother, he was satisfied with Kennedy's representation. Lastly, Judge Damiani advised petitioner as part of the canvass what the state would have to prove as to each offense.

The charges were revised at the beginning of the May 9, 1997 plea proceeding. The state charged petitioner in a new docket (CR97-258788) with Sexual Assault in the First Degree, in violation of § 53a-70(a)(1). Petitioner's Exhibit 6. The state at that time also asked that docket number CR96-252222 be nolled at the time of sentencing. Petitioner's Exhibit 7 (Transcript May 9, 1997), at 1. CR96-252222 charged petitioner with one count of Aggravated Sexual Assault in the First Degree, in violation of § 53a-70a, and Criminal Impersonation, in violation of § 53a-130. Petitioner's Exhibit 3. Thus, and change in the criminal charges inured to petitioner's benefit.

Based on the evidence presented, the court concludes that petitioner has failed to show that Kennedy failed to inform him of the elements of the original charges or what the state needed to prove those charges. CT Page 16314 Petitioner also has not shown that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial.

Petitioner's second basis for ineffective assistance of counsel is that Kennedy failed to provide petitioner with copies of the defense file for his review, and to assist in his defense. Kennedy testified at the habeas corpus trial hearing that she did not provide copies of her file to petitioner. Whatever authority may exist that stands for the proposition that counsel must communicate and explain matters to a client, this court is unaware of anything that mandates criminal defense counsel must provide copies of the defense file. This is especially true when there is no credible evidence that petitioner made such request when counsel represented petitioner approximately a decade ago. And as to the vague and over-broad allegation that Kennedy failed to assist in the defense, the evidence shows quite the contrary. Petitioner's second basis for ineffective assistance of counsel is without any evidentiary basis.

Petitioner additionally alleges that Kennedy failed to adequately advise petitioner concerning the consequences of his pleas and ensure that petitioner's plea was knowing, intelligent and voluntary. It must be emphasized that "[j]udicial scrutiny of counsel's performance must be highly deferential, and courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

The court notes that petitioner never attempted to withdraw his guilty pleas in accordance with Practice Book §§ 39-26 and 39-27(4). Those sections permit a defendant to seek to withdraw a guilty plea prior to sentencing premised on the plea resulting from the denial of effective assistance of counsel.

Kennedy testified that she explained to petitioner how the canvass would proceed, the questions the judge was going to ask, the maximum and minimum sentences, as well as the elements of the crimes. Kennedy additionally testified that she informed petitioner of his right to plead not guilty and proceed with a jury trial. The court finds Kennedy's testimony to be credible. Judge Damiani thoroughly canvassed petitioner and asked him as part of the canvass whether he had talked to both Kennedy and Swaine about the criminal cases. Judge Damiani himself also advised petitioner of the consequences of his pleas. Given the foregoing, petitioner has presented no evidence that shows Kennedy rendered deficient performance by inadequately advising him and has, therefore, also not shown how he was prejudiced.

The final area of discussion is the grouping of allegations premised on various failures to investigate. According to petitioner, Kennedy failed to sufficiently investigate the collection of the evidence subject to D.N.A. testing, the legal issues in petitioner's case, CT Page 16315 the potential defenses to the prosecution's case including the defense that petitioner was misidentified, the elements of the prosecution's proof, and the witnesses available to support potential defenses.

It is not entirely clear what petitioner means when he uses the broad term "legal issues." The court will address the claims raised with specificity, given that they are specific and known legal issues CT Page 16318 petitioner has put in contention by way of this petition for a writ of habeas corpus.

The court will rely on its discussion above regarding Kennedy's alleged failure to properly advise petitioner regarding the consequences of his pleas. No further discussion is warranted regarding the elements the state would have to prove at trial.

"Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner . . ." (Internal citations omitted.) Jean-Jacques v. Commissioner of Correction, 73 Conn.App. 742, 749-50, 809 A.2d 541 (2002).

Petitioner in this matter has not put on any evidence that would serve the purpose of affirmatively demonstrating to this court that Kennedy's performance was deficient. Instead, petitioner essentially is putting on former counsel's testimony and asking this court to second-guess Kennedy's actions. This the court will not do, for "[i]t is all too tempting for a [petitioner] 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 . . ." Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert denied sub. nom. Santiago v. Lantz, 547 U.S. 1007, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).

DNA evidence demonstrated that petitioner was not the individual who committed the crimes charged in docket number CR96-252222. That docket number was nolled at sentencing. Of the five other dockets at issue, petitioner's DNA matched that of the physical evidence taken from victims in three of those cases. That is, the DNA testing confirmed that petitioner was in fact the offender. In two cases DNA testing was not conducted. The two cases in which DNA testing was not performed, however, the facts and circumstances were very similar to the other three, and the victims picked petitioner from a photo array. Even if this court were to assume that petitioner has shown Kennedy was deficient for not having an expert retained to review the DNA testing procedures or have additional testing performed, which he has not shown, petitioner has not presented any evidence to this court that addresses the DNA testing performed and how it could or should have been attacked. Stated differently, petitioner has in no way demonstrated that he was prejudiced, i.e., that he would have maintained his plea of not guilty, CT Page 16316 proceeded to trial and prevailed.

It is entirely possible, of course, that DNA testing conducted on physical evidence in these dockets could have also confirmed petitioner as the source.

As to the potential for misidentification and alibi defenses, such defenses clearly would have been of little or no value in the three cases where DNA evidence was linked to petitioner. It is possible that these defenses would have been potentially more viable defenses in the two photo array cases where no DNA testing was done. Kennedy testified before this court that the photo array did not appear to be unduly suggestive and that she did not consider attempting to suppress the photo array. Kennedy also testified that she investigated petitioner's potential alibi witnesses, but that in her opinion the potential alibi witnesses were not likely to present credible alibi defenses in view of the fact that DNA evidence linked petitioner to crimes and the alibi witnesses were either family members or close friends. The only such potential witness called at the habeas proceeding was petitioner's mother, Maryann Saunders, whose brief testimony primarily presented evidence regarding the vehicles petitioner used or had access to. Petitioner has not sufficiently shown that Kennedy's performance was deficient for failure to adequately investigate the potential misidentification and alibi defenses. Petitioner also has done nothing to show to this court that he would have maintained his not guilty plea, proceeded to trial and prevailed.

Based on the foregoing, the petitioner has failed to prove the claims asserted in the amended petition and, therefore, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.

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