PURTILL, JUDGE TRIAL REFEREE.
By his amended petition and second amended petition, petitioner seeks a writ of habeas corpus. For reasons hereinafter stated, the petition is denied.
Count one and two of the petition alleges ineffective assistance of counsel. Count three alleges that petitioner is actually innocent of the charge described in count two. By way of relief, petitioner seeks to have the matters restored to the docket for further proceeding and such other relief as law and justice may require.
At all times relevant to the matters alleged, petitioner was represented by Attorney Sherwood Shepard. Attorney Shepard at the time was an assistant public defender representing clients in G.A. 6, New Haven. It is Mr. Shepard's representation of him that petitioner claims was constitutionally defective.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for CT Page 8251 counsel's unprofessional errors, the result of the proceeding would have been different. In this context, a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome. Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn. App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will he receive a new trial. Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13 (2001).
"When the ineffective assistance of counsel claim arises from the plea negotiation process, the prejudice requirement is satisfied if the petitioner proves 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." Braham v. Commissioner of Correction, 72 Conn. 1, 7 (2002).
On March 10, 2000, petitioner was arrested and charged with possession of narcotics in violation of Connecticut General Statutes § 21a-279a, possession of narcotics with intent to sell in violation of § 21a-278a and possession of narcotics within fifteen hundred feet of a school in violation of § 21a-278a (b). On May 2, 2000, petitioner was again arrested and charged with assault in the second degree in violation of § 53a-60, threatening in violation of § 53a-62, breach of the peace in violation of § 53a-181 and misuse of plates in violation of § 14-147c.
While these charges were pending, petitioner went to Atlanta, Georgia, where he was apprehended and returned to Connecticut. On September 14, 2000, petitioner was rearrested and an additional charge of wilful failure to appear in violation of § 53a-173 was filed. Attorney Shepard represented petitioner on all of the above files pending in the Superior Court GA. 6 in New Haven. CT Page 8252
Petitioner also had pending charges in Part A of the Superior Court, Judicial District of New Haven. On November 1, 2000, after entering appropriate pleas to these charges, petitioner was convicted of assault in the second degree in violation of Connecticut General Statutes § 53a-60 and a violation of probation. For such convictions, petitioner was sentenced to a total effective sentence of ten years, execution suspended after three and a-half years. Petitioner was represented by Assistant Public Defender Brian Carlow on the Part A charges. No allegations of ineffective assistance have been alleged against Attorney Carlow.
On December 6, 2000, while being represented by Attorney Shepard, petitioner disposed of the charges pending in G.A. 6 by pleas of guilty to possession of narcotics with intent to sell in violation of § 21a-277a (a non-mandatory offense) and assault in the second degree. In accordance with the plea agreement on the narcotics charge, a sentence of fourteen years, execution suspended after four years with five years probation was imposed. On the assault in the second degree charge, a concurrent four-year sentence was imposed. These sentences were to be concurrent to the Part A sentences previously imposed.
At present, petitioner is in the custody of respondent serving these sentences.
I.
The first and second counts of the petition allege that in representing petitioner on the above charges, Attorney Shepard's acts and omissions fell below the standards of reasonable competence required of an attorney representing an accused on criminal charges.
It was alleged that Attorney Shepard did not adequately advise petitioner concerning the elements of the offenses for which his pleas were entered. Petitioner also testified that the attorney never informed him as to the contents of the police reports. Attorney Shepard testified that prior to entering a plea, he routinely reviewed with his client the elements of the offense charged and the questions which would be asked during the plea canvass. The attorney did not specifically recall reviewing these items with petitioner, but it can be inferred that petitioner was so advised. The attorney also testified that he normally either allowed his clients to read a redacted police report or he would summarize the police report for his client. It can also be assumed that this was done with petitioner. It must be assumed that petitioner's recollection of these matters was better on December 6, 2000 than now. At that time, during the plea canvass, the judge asked petitioner:
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Mr. Shepard, do you waive the reading of the facts at this point?
MR. SHEPARD: Yes, Your Honor.
THE COURT: Mr. Waller, I went over all the facts in the police report. Did your attorney do the same with you?
THE DEFENDANT: Yes.
THE COURT: You understand those are the facts that make up the crimes that you entered pleas of guilty on?
THE DEFENDANT: Yes.
It is also alleged that the attorney did not conduct a sufficient investigation into the defense of petitioner's case and into the elements of the prosecution's case. Failure to conduct a proper investigation may give rise to an ineffective assistance of counsel claim. Siemon v. Stoughton, 184 Conn. 547, 554 (1981).
Here, it appears that other than reviewing the police reports, Attorney Shepard made no detailed investigation. He did not do so because he was under the impression that petitioner, with a substantial sentence from the Part A conviction, was primarily interested in resolving the G.A. cases by plea bargaining under most favorable terms and not going to trial.
The attorney testified that the narcotics cases, involving a minimum mandatory eight-year sentence, were considered the most serious matters. He feared that with petitioner's criminal record, the petitioner would be exposed to a maximum sentence of 40 years. The prosecution was not pleased with the sentence imposed at Part A, but did agree to dispose of all of petitioner's pending G.A. cases by dropping the minimum mandatory drug offenses and proceeding with the possession with intent to sell charge and the assault second charge with the sentences indicated
This offer was explained to petitioner. He was advised that if the offer was not accepted, his cases would go on the trial list. There is noting to indicate that petitioner, with prior convictions, did not understand what his options were or what the consequences of the plea would be. CT Page 8254
Petitioner testified that he was forced to accept the plea bargain. In fact, he knew that he was free to reject the state's offer and go to trial. He also was aware that if he was convicted after trial, he would be faced with a much longer term of confinement.
During the canvass, petitioner was asked by the judge if anyone forced him to enter the plea. He replied, "No."
There is nothing to show that the attorney failed to properly advise petitioner concerning sentencing or that the attorney failed to insure that petitioner's plea was voluntary.
There is nothing to indicate that petitioner with all of the charges pending had any desire to go to trial.
Considering all of the evidences it cannot be found that petitioner has proven the allegations of the first and second counts.
II.
The third count set forth in the second amended petition contains an allegation that petitioner is actually innocent of the charges covered in count two. Although the charges involved in the second count include threatening, breach of the peace and misuse of plates, it is only with respect to the assault second charge that petitioner claims actual innocence.
A petitioner may bring a habeas based on a claim of factual innocence without having to allege a constitutional violation in his underlying trial. Summerville v. Warden, 229 Conn. 397, 421 (1994). In order to succeed, a petitioner must prove his actual innocence by clear and convincing evidence with sufficient proof that no reasonable fact finder would find him guilty of the crime. Miller v. Commissioner of Correction, 242 Conn. 745, 791 (1997).
The evidence does not permit a finding of the specific subsection of § 53a-60 with which petitioner was charged. From the evidence and from the transcript of the plea canvass, it must be assumed that petitioner was charged with subsection (2) which provides, "With intent to cause physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or a dangerous instrument . . . The dangerous instrument which was charged here was a blackjack. The state's claim was that petitioner assaulted a Mr. Crespo with a blackjack. At the habeas trial, petitioner testified that he had a confrontation with Mr. Crespo and he admits striking Crespo. Although CT Page 8255 petitioner admits the assault, he denies that he used a blackjack.
At the time the plea was entered, the following conversation took place:
MR. SHEPARD: The allegation is that one person was assaulted with a blackjack. I think perhaps the female —
THE COURT: Ms. Waller, you have already entered a plea of guilty. Who did you hit in the forehead?
THE DEFENDANT: The dude.
At the time he entered his plea, petitioner admitted striking the dude, or Crespo, in the forehead. He did not specifically admit that the assault was conducted with a blackjack, a deadly weapon or dangerous instrument, but he did not deny the use of this instrument. It must be assumed that under the circumstances if he did not use this type of weapon, he would have said so to the court.
Even if the blackjack were not used, petitioner entered his plea under the Alford doctrine. This was explained to petitioner by the Court as follows:
THE COURT: Now, you pled under the
Alford doctrine. That means you don't agree with all of the facts, but rather than take the case to trial and risk a more serious sentence, you want to take advantage of this sentence indicated by the court?
THE DEFENDANT: Yes.
Considering all of the credible evidence, it must be concluded that petitioner has failed to sustain the burden of proof required of him to establish actual innocence of the charge of assault in the second degree.
Where petitioner has taken advantage of the plea bargain offered by which he benefitted from the state's not prosecuting him on the narcotics charges, which could have resulted in a longer period of confinement, he waived his right to now claim actual innocence of that charge. This is particularly true where his plea to that charge was made knowingly and voluntarily under the Alford doctrine. CT Page 8256
Accordingly, the petition is denied.
Joseph J. Purtill Judge Trial Referee
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